Microsoft NCE Subscription Services Terms

1    Background

1.1   LAB3 Pty Ltd or LAB3 NZ Limited (as applicable) (LAB3, us or we) provide Microsoft New Commerce Experience Subscription Services (NCE Services) to our clients.
1.2   These terms (Terms) set out the terms and conditions upon which the NCE Services specified in a statement of work between the Parties (SOW) will be provided to you. These Terms form part of that SOW.
1.3   These Terms will continue to apply:
(a)   while the NCE Services are being provided to you; or
(b)   until terminated in accordance with their terms.
1.4  In case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including the SOW and the SOW Terms) then these Terms will take precedence in relation to the subject matter of these Terms.

2    NCE Subscription Term

2.1   The NCE Services are available either as a monthly Subscription term or a yearly Subscription term. Details of your Subscription will be set out in the SOW.
2.2   Monthly Subscriptions have a minimum term of one month and yearly Subscriptions have a minimum term of 12 months (Minimum Commitment Term).
2.3   At the end of your Minimum Commitment Term your Subscription will automatically renew for another Minimum Commitment Term, unless you advise us in writing no less than 90 days prior to the end of your then current Minimum Commitment Term that you do not wish to renew your Subscription.

3   Grace period

3.1 If your Subscription automatically renews:

(a) and you want to cancel that renewal; or

(b) with quantities or products that you want to change,

you have 144 hours from the time that your Subscription expired to provide us with full details of the required cancellation or change (Required Notice).

3.2 If you give us the Required Notice of cancellation within 24 hours from the time that your Subscription expired then you will not be charged for the cancelled Subscription.

3.3 If you give us the Required Notice of cancellation more than 24 hours (and less than 144 hours) from the time that your Subscription expired then you will be charged on pro-rata basis for the NCE Services provided up until the cancellation takes effect.

3.4 If you do not give 144 hours’ Required Notice of a cancellation then we may not be able to process your cancellation request in time and your Subscription will continue for another Minimum Commitment Term. You will be liable under clause 7 if you then cancel within that new Minimum Commitment Term.

4   Changes to Subscription during Minimum Commitment Term

4.1  During your Minimum Commitment Term you may not decrease the quantities or downgrade the types of products associated with your Subscription.

4.2 During your Minimum Commitment Term you may increase the quantities or upgrade the types of products associated with your Subscription. Any changes will be reflected in your invoices on a pro-rata basis for the remainder of your Minimum Commitment Term.

4.3 If at any time any NCE Service to which you are subscribed is no longer available, we may move you onto a comparable NCE Service or otherwise discuss and agree with you a Subscription to a different NCE Service.

5    Invoicing

5.1   We will invoice you the fees for your Subscription in arrears, at the times set out in the SOW.

5.2  Subscriptions with a yearly Minimum Commitment Term may be invoiced monthly where agreed in the SOW.
5.3   Each invoice must be paid within 30 days of the date of the invoice.

5.4  If you fail to pay an invoice within the required time then we may exercise the rights set out in clause 7.

5.5   If you dispute any part of an invoice then you must notify us in writing as soon as possible, informing us of your reasons for disputing the invoice.

6    Price variations

6.1   Microsoft reserves the right to make changes to the NCE Services, including to the nature of the products and services offered and the applicable pricing.
6.2   We reserve the right to make changes to your Subscription, including to the applicable fees, to reflect any changes made by Microsoft.
6.3   We will provide you with no less than 30 days’ notice of any changes that we intend to make to your Subscription pursuant to this clause 6.

7    Consequences of breach

7.1   If you fail to pay your invoice within the required time or commit any other breach of these Terms we reserve the right to:
(a)   suspend the provision of the NCE Services to you;
(b)   suspend the provision of any other services related to the NCE Services; and/or

(c) terminate your Subscription.

8    Cancellation

8.1   If:

(a)  you cancel your Subscription before the end of the Minimum Commitment Term;

(b) we terminate your Subscription in accordance with these Terms; or

(c) you terminate the SOW Terms (other for our breach) or we terminate the SOW Terms for your breach and, as a consequence, your Subscription ends,

before the end of the Minimum Commitment Term that action will constitute a cancellation of your Subscription and you will be liable to us for, and will indemnify us against, any Losses suffered or incurred by us as a result of that cancellation.

8.2   We will not provide refunds of any fees for any unused portion of a cancelled Subscription.

9    Liability and indemnity

9.1   You acknowledge and agree that you are liable for the total Subscription fees for each Minimum Commitment Term.
9.2   You agree to indemnify and hold us harmless from all Claims and Losses that we may sustain or incur in connection with any cancellation of a Subscription.

9.3 To the extent permitted by law, neither we nor our personnel will be liable to you for any indirect, consequential, or incidental damages (including damages for loss of business profits or revenue, business interruption, loss of business information or data, and the like) regardless of how that liability arose and even if we have been advised of the possibility of such damages.
9.4  To the extent permitted by law, our total liability in relation to the NCE Services and these Terms in a Minimum Commitment Term will not exceed the fees paid to us by you for your Subscription during that Minimum Commitment Term, regardless of how any liability arose.

10    Privacy

10.1   You consent to our and our NCE Services suppliers’ (including Microsoft) collection, use, storage and disclosure of your Personal Information and that of your personnel for purposes relating to the supply of the NCE Services to you, including:
(a)   disclosure to regulatory authorities or other third parties where required by law or to assist in the enforcement of law;
(b)   disclosure to our suppliers for purposes relating to the supply of the NCE Services to you;
(c)   billing, account and relationship management, product development and marketing to you; and
(d)   the provision or rectification of the NCE Services.

11    General

11.1   Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it. Termination or expiry of these Terms does not operate as a waiver of any breach and is without prejudice to any rights, remedies, liabilities or obligations that have accrued up to the date of the termination or expiry, including a right of indemnity.
11.2 Survival: Termination or expiry of your Subscription or these Terms for any reason will not affect the operation of the provisions of these Terms which by their nature survive termination or expiry.

11.3   Rights cumulative: Except as expressly stated otherwise in these Terms, the rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.

11.4   Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable to the SOW. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that jurisdiction and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

12    Definitions

In these Terms:

• Claim means any allegation, suit, action, demand, cause of action, judgement or proceeding of any kind made in respect of any Loss under or in connection with these Terms.
• Loss means any loss, damage, claim, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
• Party means you or us, as the context requires.
• Personal Information has the same meaning as in the Privacy Act 1988 (Cth).
• SOW Terms means the terms which govern the SOW, which may include terms attached to the SOW or an overarching master services agreement.
• Subscription means a subscription to the NCE Services.