1. Master Services Agreement and definitions
1.1 Master Services Agreement
This Module is to be read in conjunction with the terms and conditions of the Master Services Agreement between Cymax and the Client, and those terms and conditions apply to the Client’s engagement with Cymax.
Where a term used in this document appears in title case, then that term has the meaning given to it in the Definitions Schedule* [https://cymax.com.au/schedule-1-definitions-schedule-20160601/].
2. Operative Provisions
Cymax will provide the Data Hosting Services to the Client subject to the terms of the Agreement, this Module and as otherwise set out in a Proposal.
2.2 Services exclusions and limitations
The Client acknowledges and agrees that:
(a) the Data Hosting Services are not free from faults or interruptions;
(b) the Data Hosting Services can only be used where a Network is available and present;
(c) in the event of unexpected Faults of which Cymax become aware, Cymax will use commercially reasonable endeavours to ensure the Data Hosting Services are restored as soon as possible;
(d) the Data Hosting Services are not for resale unless otherwise agreed in writing by Cymax; and
(e) Cymax has no control over, and is not responsible for, any faults caused by the use of products or services not supplied by Cymax for the Client’s use in connection with the Data Hosting Service, or for faults, interruptions or delays caused by a Network Provider.
(f) unless otherwise agreed between the parties in writing, maintenance and upkeep of internet sites is excluded from the Services.
2.3 Service Levels
(a) The Service Levels are set out in the Support Services and Service Levels Module to this Agreement, and exclude any impacts caused during any Scheduled Maintenance, Exceptional Circumstances, Excluded Events or as otherwise set out in paragraph 2.9 of the Support Services and Service Levels Module.
(b) The Service Levels are expressly limited to what is set out in the Support Services and Service Levels Module to this Agreement, and the Service Level Credits set out therein are the sole remedy for any non-compliance with the Service Levels.
(c) For the avoidance of doubt, any failure to meet or comply with the Service Levels (even repeat occurrences) will not be a material breach of the Proposal or the Master Services Agreement.
2.4 Data Allocation
The Client acknowledges and agrees that:
(a) Cymax can allocate and provide the Data in the manner it deems reasonably appropriate;
(b) in an event of Exceptional Circumstance, Cymax may modify or substitute the Data allocation; if this occurs Cymax will use its best endeavours to:
(1) give the Client prior notice, but the Client acknowledges that this may not always be possible; and
(2) minimise any disruption in the Data Hosting Services.
(a) The Client acknowledges and agrees that Cymax may conduct Scheduled Maintenance from time to time in accordance with this paragraph and as otherwise provided by the Agreement, and that such Scheduled Maintenance will not breach Cymax’s obligations under the Proposal or the Master Services Agreement, nor be considered to be a failure to meet the Service Levels, even if such Scheduled Maintenance may interrupt, slow or suspend, the Data Hosting Services.
(b) Cymax will use its reasonable endeavours to:
(1) minimise the frequency and duration of Scheduled Maintenance; and
(2) minimise the inconvenience caused to the Client by any Scheduled Maintenance.
If the Proposal specifies that Cymax is to be responsible for making back-ups of the Data, then Cymax will make those back-ups in the manner and frequency specified in the Proposal.
2.7 Service Fees and Payment terms
The Client will pay the Service Fees in the manner prescribed in the Master Services Agreement.
2.8 Duration of Services
The Data Hosting Services will commence on the date set out in the Proposal and will continue until the expiry of the Term, as set out in the Proposal, unless terminated earlier in accordance with the Agreement.
2.9 Client Obligations
(a) Prohibited Conduct
The Client must not:
(1) allow any viruses, worms or trojans to contaminate any equipment, data or Network in relation to the Data Hosting Services;
(2) use the Services to facilitate any conduct which is contrary to Law or anything which is otherwise a nuisance or offensive; and
(3) minimise any disruption or interference to the Data Hosting Services (and such services provided by Cymax to its other customers), or any other equipment owned, or used, by Cymax to provide such services.
(b) Service Rules
(1) The Client must comply with the Service Rules.
(2) Cymax may amend the Service Rules where it provides written notice of such amendments, and where one of the following circumstances apply:
(A) if such changes will benefit the Client or be of neutral impact on the Client;
(B) if such changes are urgent changes, being changes which are required by Law or are necessary, in Cymax’s reasonable view, for technical, emergency or security reasons; or
(C) otherwise, if Cymax provides the Client with the right to terminate the Proposal where the Client exercises that right within 30 days of Cymax giving the Client notice of the changes to the Service Rules.
(c) Security Interest
The Client grants Cymax a lien over the Client’s Material hosted by Cymax in connection with the Data Hosting Services for any Service Fees or sums payable to Cymax under a Proposal or the Agreement.
2.10 Transition out
(a) Transition out services
In the event that the Client gives Cymax notice that it intends to transition-out all or part of Services to the Client or another person, the following provisions will apply:
(1) such notice will not affect the Client’s obligations under clause 6 of the Master Service Agreement or any other obligations to pay money to Cymax under the Agreement;
(2) in accordance with the Transition Out Plan, Cymax will provide such assistance as is reasonably necessary to facilitate an orderly, prompt and efficient transition of the Client’s data and anything else reasonably necessary to migrate the Services to an alternative service provider or back to the Client; and
(3) Cymax agrees to answer questions and provide such other information as may be reasonably sought in relation to the transition by the alternative service provider or by the Client,
together, the Transition Out Services.
The Client may only require Cymax to provide the Transition Out Services during the period of time:
(1) commencing on the date of termination of the Agreement; and
(2) until two (2) months after the date in2.10(b)(1),
unless Cymax otherwise agrees in writing to provide the Transition Out Services for a longer period of time.
The Client acknowledges and agrees that the fees for the Transition Out Services will be provided under the rates set out in the Rate Card and that such fees are payable to Cymax under clause 6 of the Master Services Agreement.