Remember the T&C's you are agreeing to are with the office you are working with and not necessarily the one for the geography you are based in.
The following terms and conditions will apply to all services provided or to be provided and products sold or to be sold by Synergy Asia Pacific, Pty Ltd. (“Synergy”), to the person, corporation, partnership or other entity who requests the provision of such services or for whose benefit such services are to be provided (“Customer”), regardless of whether the order for such services or products was placed in written, electronic or verbal form. Synergy rejects all contrary or additional terms and conditions of Customer. Customer shall be deemed to have accepted the terms and conditions contained herein upon the earlier of (i) Customer's submission of an Order or (ii) Customer's permitting the performance of any Services or delivery of any Products. (For the purposes of these terms and conditions, “Order”, “Services” and “Products” shall have the meanings set forth below.) Any variation to these terms and conditions must be agreed in writing.
The nature and scope of the services to be provided by Synergy to Customer (“Services”) and/or the products to be sold or otherwise provided by Synergy to Customer (“Products”) shall be as defined in one or more of the following - the order, quote, task order or any other written or verbal agreement between Synergy and Customer (the “Order”). Synergy shall not be required to provide any other Services or Products to Customer unless Synergy expressly agrees to do so and such other Services or Products are made the subject of a written Order. Any changes to an Order will only be effective if agreed and made subject to a written Change Order. To the extent that the Services or Products include any installation, upgrade or configuration of Customer’s computer system or network or any part thereof, the system or network as installed, upgraded or configured by Synergy is referred to in these terms and conditions as the “Resulting System”.
1. Price: The prices for the Services or Products are the prices set forth in the Order.
2. Taxes: In addition to the purchase price, Customer shall pay Synergy the amount of all taxes, excises and other governmental charges (except taxes on or measured by net income of Synergy) that Synergy may be required to pay with respect to the provision of the Services or sale of Products to Customer, except as may otherwise be provided by law.
3. Warranty: Disclaimers: Customer represents and warrants to Synergy that Customer has the power and authority to enter into and perform its obligations under the Order and these Terms and Conditions; Customer shall comply with all terms and conditions of the Order and these Terms and Conditions, including, without limitation, the Acceptable Use Policy set forth in Section 7 hereof, and Customer has provided accurate and complete registration information, including, without limitation, Customer's legal name, address and telephone number.
(i) Synergy shall perform all Services in a good and workmanlike manner in accordance with industry standards.
(ii) Synergy hereby warrants that the provision of the Services shall meet the requirements and perform the operations and functions in accordance with and as set forth in the relevant Order or Change Order.
(iii) Synergy’s sole and complete liability in the event of any claim by Customer hereunder shall be to remedy, within a reasonable period after receipt of written notice of same from Customer, any defect or failure resulting from a breach by Synergy of its obligations and warranty under sub-clauses 3(a)(i) and (ii) above.
(iv) Synergy makes no representations or warranties, express or implied, with respect to the Products, including without limitation, any representations or warranties concerning the design, use or performance of any such Product or any implied warranty of merchantability or fitness for a particular purpose.
(v) Products are sold or otherwise provided “as is” and the Customer assumes the entire risk as to their quality, performance or suitability. In no event will Synergy be liable to Customer under any Order for direct, indirect, special, incidental or consequential damages (such as loss of profits) resulting from any defect in the Services or the Products, their documentation or their installation, even if advised of the possibility of such damage. In particular, Synergy does not warrant that the operation or use of the Products will be error free and uninterrupted.
(vi) Synergy hereby assigns to the Customer any and all warranties that the manufacturer may provide to the end user for Products, and Customer agrees that any claims under or related to such warranties will be brought solely against the manufacturer and not against Synergy.
Apart from Sub-Clause (a) of this clause, there are no representations, warranties, conditions or other terms express or implied (whether statutory or otherwise) given or deemed to be given by Synergy relating to the Services or Products or to the resulting system or their merchantability, fitness for a particular use or any other condition whatsoever.
Any claims against Synergy under the warranties hereunder must be brought within six (6) months of the date the Service was provided or the Product delivered to Customer, or such claim shall be deemed waived.
Customer’s only rights and its exclusive remedy in connection with the performance of the Services or Products, are under this clause 3. The Customer may have other or different rights under applicable law.
Notwithstanding anything herein to the contrary, where damages are recoverable arising out of an Order, whether or not the claim is made pursuant to these Terms and Conditions, Synergy’s liability to Customer shall under no circumstances exceed (i) in the case of a claim made in connection with Products, the sums paid by Customer as the price of the Product Order in connection with which the claim is made or (ii) in the case of a claim made in connection with a Service Order, the sums paid by Customer as the price of the Service Order for the Order Term during which the cause of action for such claim arises.
In no case shall Synergy be liable to remedy any defect or failure to the extent that the same arises out of modifications, additions or other alterations made to the Products or the Customer’s system by the Customer or by any third party.
4. Limitation of Liability and Disclaimers
Privacy. It is the policy of Synergy to respect Customer's privacy. Synergy will not monitor, edit, or disclose any personal information about Customer's information or systems, without Customer's prior consent, unless Synergy has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any relevant authority; (ii) protect and defend the rights or property of Synergy; (iii) enforce the terms of an Order or these Terms and Conditions.
5. Indemnification: Customer agrees to defend, indemnify and hold harmless Synergy, its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims and expenses, including attorneys' fees, arising directly or indirectly out of the use of the Products and/or Services by Customer or third parties.
6. Invoicing and Payment: Synergy shall invoice the Customer on the basis set forth in the relevant Order or Change Order. Unless otherwise indicated on the invoice or in the Order or Change Order, invoices shall be payable upon receipt and a finance charge will be due on the unpaid balance at the rate of 1½% per month, which is an annual percentage rate of 18% (or if less, the maximum rate permitted by law). This charge will be computed by applying the daily rate of .0493% to the daily past due balance for the number of days past due from the invoice payment date. No finance charge will be incurred if payment is received prior to or on the due date. Synergy reserves the right to suspend Services to Customer and/or to decline the sale or delivery of Products to Customer if Customer is in default in payment of any invoice or if Synergy has a reasonable basis to believe the Customer is unable to make payment for Services or Products delivered.
In the event of a default with respect to the payment of an invoice or any part thereof, Customer shall be liable for all of Synergy's reasonable costs, disbursements and fees, including but not limited to attorneys’ fees, incurred in the collection of any amounts due.
7. Term and Termination: The terms of the Order and these Terms and Conditions are effective upon acceptance by Customer as set forth above and shall continue in full force until Services are terminated or Products are cancelled, pursuant to the terms hereof or any other written agreement between Synergy and Customer.
Termination of Services: Either party may terminate an Order for Services upon thirty (30) days written notice. Synergy reserves the right to suspend service to Customer as set forth herein and in the Master Service Agreement. If the Customer terminates or discontinues, for any reason, the Services to be provided under the Order, Customer shall not be entitled to a refund of any fees or amounts paid, or any credit for amounts remaining on the Customer's account
Cancellation of Products: All sales of Products are final, and at no time will Customer have the right to cancel the purchase or acceptance of any Product once the sale Order is made. A quote signed by Customer shall be deemed an agreed Order. Customer’s refusal to accept a Product ordered, or delay of delivery once ordered, will not revoke Customer’s liability to pay for such Product on the terms agreed in the Order.
8. No Hiring Without Prior Consent. Each party agrees not to recruit or hire any employee or contractor of the other party until one (1) year after the completion of the last Order in effect between the parties.
9. Confidentiality. Each party acknowledges that confidential information and material of a commercial value (“Confidential Information”), including but not limited to product/service specifications, prototypes, computer files and programs, models, drawings, marketing plans, financial data, source code, trade secrets, copyrighted material and other information, whether in tangible or intangible form, pertaining to the business of a party, its employees, contractors, clients and/or business associates, has or will come into the possession or knowledge of each party in connection with this Agreement or the performance hereof. Each party further acknowledges that the Confidential Information represents confidential and proprietary trade secrets, whose disclosure to or use by third parties will be damaging to the owner thereof. Each party agrees to hold the other’s Confidential Information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to those persons in their respective organizations requiring such information for the purposes of this Agreement, and not to release or disclose it to any third party without the non-disclosing party’s prior written consent. Neither party shall disclose the existence or terms of any Order to any third party without the other party’s prior consent. These restrictions shall not be construed to apply to information a) generally available to the public; b) released by a disclosing party generally without restriction; c) independently developed or acquired by a party or its personnel without reliance in any way on Confidential Information of the other party; d) approved in writing for use and disclosure by the disclosing party or its personnel without restriction; or e) required to be disclosed by law or order of a court or other authority of competent jurisdiction, PROVIDED THAT the disclosing party provides the non-disclosing party notice of such required disclosure sufficiently in advance of the intended disclosure to permit the non-disclosing party to take action to prevent such disclosure if the non-disclosing party so deems necessary.
10. Partial Invalidity. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by an applicable court decision, such unenforceability shall not render this Agreement unenforceable or invalid as a whole and, in such event such provisions will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decision.
11. No Assignment. The rights and obligations of the Customer are not assignable by Customer without Synergy's prior consent in writing.
12. Notices. Notices to Synergy shall be sent to: Level 6, 115 Pitt Street, Sydney, NSW, Attention Regional Manager. Notices to Customer shall be sent to the address provided by Customer on the Customer Contact Information sheet. All notices shall be in writing and sent by personal delivery or nationally recognized overnight courier. Notices shall be deemed effective upon receipt. Each party may from time to time change its address for notice upon no less than thirty (30) days written notice provided pursuant to the terms hereof.
13. Governing Law: The validity, interpretation and performance of the rights and obligations of the Customer and Synergy are governed by the laws of the State of New South Wales without regard to its rules concerning conflicts of law. The parties hereto irrevocably consent to suit and submit to the jurisdiction of the courts, federal and state, located in the State of New South Wales.
14. Entire Agreement. The Order (as modified by any Change Order), these Terms and Conditions, and the Master Service Agreement, if any, entered into between the parties, together constitute the entire agreement between Customer and Synergy for the provision of Services or sale of Products described in the Order. No course of dealing between Customer and Synergy and no usage of trade shall vary any terms and conditions contained in the Order, these Terms and Conditions or the Master Service Agreement. No modifications or waiver of the Order, these Terms and Conditions or the Master Service Agreement shall be binding upon Synergy unless approved in writing by Synergy.
15. Synergy's Rights. All of Synergy's rights under the Order and these Terms and Conditions are separate and cumulative and in addition to any other rights Synergy may have at law or in equity and no exercise by Synergy of any right thereunder or hereunder shall preclude Synergy from exercising any other legal or equitable right or remedy available to it.
Synergy reserves the right to amend these Terms and Conditions from time to time with regard to any Orders made after the date of such amendment.
Remember the T&C's you are agreeing to are with the office you are working with and not necessarily the one for the geography you are based in.