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For the purposes of these Terms and Conditions Goods and Services means the services and/or goods to be provided by LAB3 Pty Ltd to the Client under and in accordance with the Statement of Work.
All duration dates and times for the provision of the Goods and Services are only an estimate. LAB3 is not liable to the Client for any loss or damage (including consequential loss or damages) arising from late provision of the Goods and Services.
Where the Service being provided is a person, LAB3 (with the consent of the Client and at LAB3’s cost) may swap out the person and continue to provide the Service.
Services (and all required Goods) will be invoiced at the times set out in the Statement of Work (or otherwise monthly), and payable within 30 calendar days of the date of the invoice. LAB3 standard account application terms and conditions are incorporated into and form part of the Statement of Work.
All prices are exclusive of GST, freight and installation.
The risk in the Services (and any related Goods) shall pass to the Client immediately upon the provision of the Goods and Services to the Client or the delivery of the Goods by LAB3 to the Client’s nominated location (unless otherwise agreed by the parties in writing).
Ownership and title of any Goods used in the provision of the Goods and Services shall not pass to the Client until the Client has paid all that is owing to LAB3.
Either party can terminate the Statement of Work in writing without cause or explanation with 4 weeks’ notice (unless the duration of the Statement of Work is less than 4 weeks in which case the notice required is 2 weeks) (Termination Period).
The Client will pay LAB3 the Fees for all LAB3 resources specified in the Statement of Work during the Termination Period.
Either party may terminate the Statement of Work immediately where the other party commits:
To the extent permitted by law, neither LAB3 nor anyone else who has been involved in the creation, production, or delivery of the Goods and Services pursuant to the Statement of Work shall be liable for any indirect, consequential, or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) regardless of how that liability arose and even if LAB3 has been advised of the possibility of such damages.
To the extent permitted by law, the total liability of LAB3 under the Statement of Work and in relation to the Goods and Services will not exceed the sum of the amounts paid to LAB3 by the Client pursuant to the Statement of Work, regardless of how any liability arose.
In the event that LAB3 breaches any term or condition that is implied by law and which is not capable of being excluded, the parties agree that LAB3’s liability will be limited to, at LAB3’s discretion:
To the extent permitted by law, the Client indemnifies LAB3 from every liability, loss, damage, cost and/or expense incurred or suffered by LAB3 or any LAB3 representative as a result of attending, or providing the Goods and/or Services on, the Client’s premises, except to the extent that any liability, loss, damage, cost, and/or expense is caused by gross negligence or a wrongful act or omission of LAB3 or its representatives.
To the maximum extent permitted by law and other than as expressly stated in the Statement of Work, every condition, warranty, term, provision, representation, promise or undertaking (express, implied, written, oral, collateral, statutory or otherwise and regardless of whether arising under common law or statute) is excluded.
The Client waives and releases LAB3 and its directors, officers, employees, agents, contractors and advisers (each a Related Person) from all liability in respect of any and every condition, warranty, term, provision, representation, promise or undertaking (express, implied, written, oral, collateral, statutory or otherwise), other than as expressly stated in the Statement of Work, to the fullest extent permitted by law, except to the extent such liability arises due to fraud on the part of that Related Person.
Each party must keep confidential all confidential information of the other party, including but not limited to any information relating to the business and financial affairs, know-how, data, technology, or software of that party which is not publicly available other than due to a breach of the Statement of Work (Confidential Information).
Each party must not (except as required for the proper performance of the Statement of Work, by any applicable law, court order or the rules of any stock exchange) use or disclose or permit or assist anyone else in any way to use or disclose any Confidential Information of the other party.
Notwithstanding this term, LAB3 reserves the right to be able to reference the outcomes of the Statement of Work for future potential clients, provided that LAB3 will not disclose any information which the Client has advised LAB3 is commercially sensitive.
Any information that is collected by LAB3 in relation to the Client for the purpose of providing the Goods and Services to the Client in accordance with the Statement of Work, will be done so in accordance with the laws relating to the collection and disclosure of personal information under the Privacy Act 1998 (Cth) as amended from time to time.
Each party agrees to comply with all applicable privacy laws in respect of any incidental information that is accessed or disclosed to that party, including but not limited to, the laws relating to data protection and health records.
LAB3 will not be responsible for any disruption of a network, software or equipment of the Client caused by LAB3 providing the Goods and Services.
The Client is solely responsible for back-up and disaster recovery plans and procedures and shall not be entitled to any re-entry of lost data under the Statement of Work or any other agreement between the parties for the provision of the Goods and Services.
The Client is solely responsible for protecting data and images stored or transmitted by any of the equipment or Goods involved in the provision of the Services, including providing and maintaining a secure network and network security components (as necessary), including, without limitation, any firewalls or security related hardware or software and ensuring that all data is fully protected against viruses and malicious software.
The Client releases and fully discharges LAB3 for any disruptions of the nature referred to above.
The Client permits LAB3 to associate in the Client’s systems all relevant Microsoft attributions with LAB3. These may include LAB3 enabling LAB3 as the Client’s DPOR (Digital Partner of Record) and/or enabling LAB3 to link or associate its Microsoft Partner ID (through PAL (Partner Admin Link) or CPOR (Claiming Partner of Record)) to the Client’s Microsoft licences, products or consumption through subscription(s).
Intellectual Property Rights means any rights to patents, trademarks, service marks, trade names, inventions, trade secrets, copyright, moral rights, right in a design, know-how, confidential information, and all or any other intellectual or industrial property rights whether or not registered.
Material means material in any form, including documents, reports, information, diagrams, drawings, libraries, data, designs, software, products, code, templates, or tools.
Created Materials means any Material created by or on behalf of LAB3 in the course of providing the Services, whether tangible (such as documents, drawings, flow diagrams, software programs or routines or specifications) or intangible (such as ideas, know-how, designs, inventions, discoveries, techniques, formulae, processes, methods, or trade secrets). The ownership of, and all Intellectual Property Rights in, all Created Materials vests with LAB3 upon creation.
LAB3 Material means all Material which is owned or licensed by LAB3 or a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) of LAB3 and which is used or provided by or on behalf of LAB3 as part of the Services or in accordance with the Statement of Work and includes modifications to such Materials. LAB3 Materials remain the property of LAB3, and LAB3 retains all Intellectual Property Rights in all LAB3 Materials.
LAB3 hereby grants to the Client a non-exclusive, royalty free, revocable, non-transferrable licence to use the LAB3 Material and the Created Materials but only for the Client’s business purposes and only in connection with the Services and Deliverables. The Client will not disclose LAB3 Material or the Created Materials to any third party, including its other service providers.
Notwithstanding the provision of any other Client documentation including the Client’s Purchase Order Terms and Conditions or other commercial agreement, these Terms and Conditions of the Statement of Work will prevail and take precedence for the Goods and Services provided by LAB3.
A Force Majeure Event is an event that is taken to be beyond either party’s reasonable control, including (without limitation) strikes, lock outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, state, or federal government, government authority or instrumentality.
Neither party is not liable for any failure to comply with the Statement of Work or any other agreement between the parties for the provision of the Goods and Services if the failure (directly or indirectly) arises by virtue of a Force Majeure Event. If such circumstances occur, the performance of each party’s obligations in accordance with these Terms and Conditions of the Statement of Work will be suspended for so long as the Force Majeure Event continues or prevails.
Nothing in this provision releases either party from any obligations to pay the other party in accordance with the Statement of Work, or otherwise comply with the Terms and Conditions of the Statement of Work.
The Client acknowledges that in entering into the Statement of Work it has not relied on any representations or warranties about its subject matter except as expressly provided by the written Terms and Conditions of the Statement of Work.
The parties acknowledge and agree that their relationship under the Statement of Work is that of independent contractors and nothing in the Statement of Work should be construed as creating a relationship of employer/employee, principal/agent, partnership, or joint venture.
Nothing contained or implied in the Statement of Work creates any partnership, agency, or trust, and neither party has any authority to bind the other party in any way.
The Client will be available for ad-hoc reference calls and a case study relating to the Services being provided under the Statement of Work. The Client agrees to LAB3’s use of the Client’s logo in reference material for future potential clients and stakeholders of LAB3.
The Client may not assign or otherwise deal with its rights under the Statement of Work or allow any interest in them to arise or be varied in each case, without the written consent of LAB3.
LAB3 may assign its rights under the Statement of Work to any Related Body Corporate or to a new holding company or controlling entity, and may notify the Client of any name changes, by notice in writing effective immediately, and without approval in advance from the Client.
If the whole or any part of a provision of the Statement of Work is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of the Statement of Work has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This provision has no effect if the severance alters the basic nature of the Statement of Work or is contrary to public policy.
The Statement of Work may be amended or varied only by agreement in writing signed by the parties.
The parties agree to pay their own legal and other costs and expenses in connection with the preparation, execution, and completion of the Statement of Work and other related documentation except for stamp duty.
The Client agrees to:
The Statement of Work may consist of a number of copies, each signed by one or more parties to the Statement of Work. If so, the signed copies are treated as making up the one document and the date on which the last counterpart is executed will be the date of the Statement of Work.
The Statement of Work is governed by the laws of the state of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that state and the courts of appeal from them.
