Telecommunication

& Carriage Services

Terms and Conditions

1    Background

1.1   LAB3 Pty Ltd or LAB3 NZ Limited (as applicable) (LAB3, us or we) procures telecommunications services, carriage services and/or related products and services (each a Service) through third-party vendors, including Aussie Broadband Pty Ltd, TPG Network Pty Ltd and Vocus (New Zealand) Limited and their third-party suppliers (each a Vendor).
1.2   These terms (Terms) set out the terms and conditions under which any Service specified in a SOW between the Parties will be provided to you and form part of that SOW.
1.3   These Terms will continue to apply:
(a)   while the Service is being performed;
(b)   while any Vendor Infrastructure is deployed on Your Premises or is in your possession; or
(c)   until terminated in accordance with their terms.
1.4   Unless otherwise stated in the SOW or terminated in accordance with these Terms, a Service will be provided for the Initial Term. Upon expiry of the Initial Term the provision of the Service will continue on a month-to-month basis until terminated by either Party giving the other Party at least 30 days written notice of termination.
1.5   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    Performance

2.1   While the Vendor may provide availability and/or performance targets or a Service, you acknowledge that they are subject to change by the Vendor and are not within our control.
2.2   We will use our reasonable endeavours to pursue on your behalf any rights and remedies we may have against the Vendor for a failure to meet any availability or performance targets, provided that your recovery from us will not exceed any amounts or benefits that we recover from the Vendor.
2.3   Unless expressly stated otherwise in the SOW, we do not represent that a Service will be compatible with particular computer systems, software, data formats, equipment, or operating systems.

3   Supply of Services

3.1   While the Vendor will make all reasonable efforts to provision a Service in accordance with dates specified in the SOW, you accept that such dates are estimates only and that neither we nor the Vendor are liable for any failure to supply a Service by a specified date.
3.2   We and the Vendor will comply with your reasonable directions when accessing Your Premises.
3.3   You agree that we and the Vendor may monitor and retain data regarding your use of a Service and communications sent via a Service for billing, network monitoring and network management, and where required by Law.
3.4   You agree that the Vendor has no direct liability to you arising from the provision of a Service to you or the use of a Service by you.

4    Support

4.1   We will provide all direct support to you in relation to a Service. This includes technical support, Fault rectification, relationship management with the Vendor and dispute resolution.
4.2   You agree not to contact the Vendor directly and accept that Charges may apply if you do directly contact the Vendor.

5    Supplier Equipment

5.1   Title of purchased Supplied Equipment passes to you when you have paid the full purchase price. Until then you hold the Supplied Equipment as bailee for the Vendor.
5.2   The Vendor retains title in loaned or rented Supplied Equipment.
5.3   Unless and until title in Supplied Equipment passes to you, you must fully insure the Supplied Equipment for its replacement value and upon request provide us with a certificate of currency of the insurance.
5.4   Risk in Supplied Equipment passes to you upon:
(a)   delivery to Your Premises; or
(b)   pick up if the Supplied Equipment is being picked up by you, or on your behalf, from the Vendor or us.
5.5   You must keep loaned or rented Supplied Equipment or purchased Supplied Equipment that has not been fully paid for in good repair.
5.6   The Vendor may, or may ask us to, repair or replace defective Supplied Equipment, however if the defect is the result of your misuse, unauthorised repair or modification, you are liable for the cost of the repair or replacement.
5.7   To the extent we can do so, we will assign any manufacturer’s warranty or Vendor’s warranty in purchased Supplied Equipment to you. To the extent legally permissible, neither the Vendor nor we provide any further warranties in relation to Supplied Equipment.

6    Equipment and Infrastructure

6.1   You permit us, our authorised subcontractors, and the Vendor to access Your Premises to maintain or replace Vendor Infrastructure.
6.2   You:
(a)   must allow the Vendor to do anything necessary to establish or demonstrate that the Vendor owns;
(b)   must not remove any serial numbers or Vendor insignias from;
(c)   must not allow or create any Encumbrance to be created in relation to;
(d)   must ensure that appropriate care is taken of; and
(e)   are responsible for damage (other than fair wear and tear) or theft of,
Vendor Infrastructure or Supplied Equipment that has not been fully paid for by you.

7    Faults

7.1   You must report a Fault to us as soon as reasonably practicable after becoming aware of the Fault.
7.2   If a Fault occurs, we will work with you to diagnose the cause of the Fault and to confirm that the Fault is not caused by Your Equipment or by software, electrical supply, content or services supplied by parties other than us or the Vendor.
7.3   Unless otherwise expressly stated in a SOW, you are responsible for rectifying Faults relating to Your Equipment and software, electrical supply, content or services that were not supplied by us or the Vendor and for any costs incurred by us or the Vendor in relation to Faults that arise for such a reason.
7.4   We are responsible for reporting any Faults to the Vendor’s technical support helpdesk.
7.5   The Vendor is not responsible for repairing Faults that are outside its reasonable control, including Faults relating to software developed or licensed by any third-party that is used in relation to a Service. However, we or the Vendor may ask the third-party to rectify the Fault.
7.6   You are liable for any costs that we or the Vendor incurs in rectifying a Fault that arises as a result of:
(a)   your act or omission or that or your Personnel; or
(b)   defects or failures in networks, equipment, facilities or software that is not equipment provided by us or Vendor Equipment.

8    Maintenance

8.1   Maintenance may be performed us, our authorised subcontractors or the Vendor when required.
8.2   We will provide you with reasonable notice of Scheduled Maintenance. Where possible, we will request that Scheduled Maintenance by the Vendor is undertaken at a time that will minimise disruption to your use of a Service.
8.3   If unscheduled or urgent maintenance is required, it may not be possible for us to provide notice or to request that the maintenance be scheduled at a time that is convenient to you.
8.4   We or the Vendor may suspend a Service if necessary, because of a Force Majeure Event, an emergency, to comply with a Law or direction of a Regulatory Authority or to protect persons, equipment or Vendor Infrastructure.
8.5   Any suspension of a Service will not have any impact on the duration of the Initial Term for that Service, unless otherwise agreed.

9    Your obligations

9.1   You must:
(a)   comply with and ensure that your Personnel comply with all relevant Laws and requirements of Regulatory Authorities with regard to the use of a Service;
(b)   ensure that you have all necessary licences, approvals, permissions and permits required for the installation and operation of equipment at Your Premises;
(c)   provide any necessary assistance for us or the Vendor to obtain any licences, approvals, permissions, or permits to provide a Service or install equipment;
(d)   provide us and the Vendor with all information and assistance reasonably required in relation to a Service, including:

(i)   access to Personnel, information, equipment and data;

(ii)  safe and prompt access to Your Premises;

(e)   ensure that adequate space, utility services (including electricity, air conditioning and earthing) is provided for safe and adequate installation and operation of equipment necessary for a Service;
(f)   ensure that nothing is done or omitted to be done that could interfere with the operation of Vendor Infrastructure or Supplied Equipment;
(g)   not say or do anything that will compromise the security or integrity of Vendor Infrastructure;
(h)   provide and maintain your own equipment, network and network security where relevant to the operation of a Service;
(i)   where not installed by us, ensure that cabling at Your Premises used in the provision of a Service has been installed by a registered cabler and complies with applicable standards;
(j)   comply with applicable operational requirements, procedures and technical specifications reasonably required by us or the Vendor;
(k)   ensure that a Service is not used in a manner that interferes with Vendor Infrastructure or services provided to other parties;
(l)   comply with all interception and data retention obligations and Laws that apply to you as a result of your use of the Service;
(m)   must not use a Service or allow others to use a Service for illegal purposes or to create, publish, transmit material that is illegal, defamatory, threatening, indecent, abusive, discriminatory, in breach of confidence or confidentiality obligations, unwanted or which may damage our reputation, or that of the Vendor; and
(n)   ensure that a Service is not used to transmit viruses or other material that is designed to or could interfere with the functions of software or hardware.
9.2   You are responsible for any risks and Charges relating to your use of the Service, including non-authorised use.
9.3   Any IP address space that is provided by the Vendor remains the Vendor’s property and must be immediately relinquished to the Vendor upon the Vendor’s request or upon termination of the relevant Service or these Terms.
9.4   You agree to indemnify and hold us and the Vendor harmless from all Claims and Losses that we or the Vendor may sustain or incur in connection with a breach by you or your Personnel of these Terms.

10    Invoicing

10.1   We are responsible for invoicing you for a Service and we will do so in accordance with the SOW.
10.2   We may commence invoicing for a Service from the RFS Date, regardless of whether you have commenced using the Service and regardless of whether the Service is part of a larger solution.
10.3   If a Fixed Term Service is terminated during the Initial Term, any unpaid part of the Fixed Term Charge is immediately due and payable by you to us.
10.4   If you dispute any part of an invoice then you will notify us in writing as soon as possible, informing us of your reasons for disputing the invoice.
10.5   If an undisputed invoice or undisputed part of an invoice for a Service is not paid in accordance with the SOW Terms, then:
(a)   we may invoice you for any remaining Fixed Term Charges which become immediately due and payable;
(b)   the Vendor may suspend the provision of the Service and/or disconnect equipment used in relation to the Service; and/or
(c)   we or the Vendor may enter Your Premises to recover Vendor Equipment or Supplied Equipment in which title has not passed to you.
10.6   We or the Vendor may reconnect a suspended Service upon full payment of amounts due and any reasonable reconnection fee.

11    Changes to a Service or Charges

11.1   You acknowledge that we may vary a Service or the Charges, if varied by the Vendor.
11.2   The Vendor may vary a Service or the ongoing Charges including:
(a)   where the provision of the Service is directly affected by a new or varied tax, tax rate, levy, impost or regulation; or
(b)   to reflect any verifiable change in the Vendor’s costs resulting from a variation in the price of utilities and other inputs;
(c)   where a supplier of the Vendor varies, replaces or terminates its terms of supply to the Vendor.
11.3   We may require the payment of Charges in addition to those specified in the SOW if the Vendor notifies us that the Vendor requires services from a third-party supplier (Additional Supplier Charges).
11.4   If we notify you of Additional Supplier Charges, the relevant Service may be placed on hold pending your agreement to the Additional Supplier Charges. If you agree to the Additional Supplier Charges within the specified period, they will be invoiced by us. If you do not agree to the Additional Supplier Charges within the specified period, the SOW will be varied as agreed the Parties or, if agreement cannot be reached, the SOW will be terminated, and that termination treated as though it were termination of the SOW for a Force Majeure Event.

12    Privacy

12.1   You consent to our and the Vendor’s collection, use, storage and disclosure of your Personal Information and that of your Personnel for purposes relating to the supply of a Service 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 and the Vendor’s suppliers for purposes relating to the supply of a Service to you;
(c)   billing, account and relationship management, product development and marketing to you; and
(d)   the provision or rectification of a Service.
12.2   You acknowledge that the Vendor may be legally required to monitor a Service, intercept communications or retain data relating to communications over a Service if required by Law, a request from an authorised agency or a direction of a Regulatory Authority.

13    Liability

13.1   All Intellectual Property in any materials, domain names and internet protocol numbers provided by the Vendor in relation to a Service and Vendor Equipment remains the property of the Vendor.
13.2   You are granted non-exclusive, non-transferable, non-sublicensable licence to use the Intellectual Property owned by or licensed to the Vendor for the purpose of using a Service and subject to any conditions imposed by the Vendor.
13.3   When using Intellectual Property owned by or licensed to the Vendor, you must:
(a)   not copy any part of the Intellectual Property except where reasonably necessary for backup purposes;
(b)   treat the Intellectual Property as Confidential Information;
(c)   only use software on authorised equipment;
(d)   not decompile, reverse engineer, modify or disassemble the Intellectual Property;
(e)   return all copies of the Intellectual Property upon expiry or termination of these Terms.
13.4   We will give you prior notice of any third-party software licence terms (Third Party Licence) that will apply to your use of software that is used in a Service, and will provide you with a copy of the Third Party Licence.
13.5   Unless you raise any issues or objections in relation to the Third Party Licence within a reasonable time, you will be taken to have read and agree to be bound by the Third Party Licence.
13.6   You agree to indemnify and hold us and the Vendor harmless from any Claims made by a third-party software licensor arising from a breach of a Third Party Licence to which you or your Personnel have agreed.

14    Decision not to proceed with a Service

14.1   You may decide not to proceed with a Service prior to the applicable RFS Date by giving us no less than 14 days’ written notice prior to the RFS Date.
14.2   If you decide not to proceed with a Service prior to the RFS date then you will be liable to pay us all costs that we have incurred preparing for the Service, including costs relating to equipment, infrastructure, installation and any costs that are payable to the Vendor.

15    Termination

15.1   We may terminate these Terms and a Service without liability to you by giving written notice to you, if:
(a)   you fail to pay an undisputed invoice within 20 days of its due date and after being given 5 days’ notice from us requiring payment;
(b)   you commit a material breach of these Terms that is not capable of remedy;
(c)   you commit a material breach of these Terms that is capable of remedy but you fail to remedy the breach within 20 days of receiving a notice to do so;
(d)   a Force Majeure Event prevents us or the Vendor from substantially performing obligations in relation to a Service for more than 60 days;
(e)   the Vendor advises us that it cannot provide a Service or the Vendor alters its terms of supply which render the provision of a Service by us no longer possible;
(f)   any permit, consent, licence, or lease required for the provision of a Service cannot be obtained or retained; or
(g)   a change in Law makes it illegal or, in our or the Vendor’s reasonable opinion, commercially unviable to continue providing a Service.
15.2   You may terminate these Terms in accordance with the SOW Terms.
15.3   If termination occurs pursuant to clause 15.1(a), 15.1(b) or 15.1(c), you must pay to us on demand any applicable Fixed Term Charge.
15.4   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.
15.5   Termination of these Terms for any reason will not affect the operation of the provisions of these Terms which by their nature survive termination.
15.6   You acknowledge that if the Vendor has the right to terminate its agreement with us, then the Vendor may contact you directly to:
(a)   explain how termination of a Service may affect you; and
(b)   transfer the arrangements for a Service directly to the Vendor.

16    Personal Property Securities Act

16.1   You agree that you have no interest in any property or equipment owned by the Vendor nor any right to retain or register an interest in any Vendor property or equipment, including Supplied Equipment while title remains with the Vendor.
16.2   You agree that the Vendor may register its interest in property or equipment including Supplied Equipment in which it retains title and that you waive your rights to receive a copy of the registration. You agree that in relation to Supplied Equipment owned by the Vendor that the Vendor need not comply with any provision of the PPSA and Personal Property Securities Regulations 2010 (Cth) that may be contracted out of.
16.3   You must, if required by the Vendor, promptly and in any event within 30 days, execute any document that in the reasonable opinion of the Vendor is necessary for the Vendor to register its interests.
16.4   You must not part with possession of Supplied Equipment owned by the Vendor or permit such Supplied Equipment to become a fixture or subject to any Encumbrance, charge or loan without the Vendor’s prior written consent.

17    General

17.1   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.

17.2   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.

17.3   Consents: Except as expressly stated otherwise in these Terms, a Party may conditionally or unconditionally give or withhold any consent to be given under these Terms and is not obliged to give its reasons for doing so.

17.4   Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it.

17.5   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.

17.6   Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party.  Any purported dealing in breach of this clause is of no effect.

17.7   Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.

18    Definitions

18.1  In these Terms:

• Charge means a fee payable by you for Services or Supplied Equipment.
• 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.
• Encumbrance means a mortgage, lien, loan, fixed or floating charge, or any other interest granted to a third-party, or a registration by any party other than the Vendor pursuant to the PPSA.
• Fault means a fault or failure in the Service.
• Fixed Term Charge means the Charge payable for a Fixed Term Service for the Initial Term.
• Fixed Term Service means a Service supplied for a fixed Initial Term with a minimum Charge per charging period.
• Force Majeure Event has the meaning given in the SOW Terms.
• Initial Term means the minimum period specified for a Service in the SOW.
• Intellectual Property has the meaning given in the SOW 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).
• PPSA means the Personal Property Securities Act 2009 (Cth).
• Personnel means, in relation to Party, its employees, directors, officers, agents, representatives and contractors.
• Regulatory Authority means:
  • in Australia, any of the Australian Communications and Media Authority, the Department or Minister of Communications and the Arts, the Australian Competition and Consumer Commission, the Communications Alliance and the Telecommunications Industry Ombudsman;
  • in New Zealand, the Commerce Commission of New Zealand, the Department or Minister of Broadcasting, Communications and Digital Media New Zealand, the Department or Minister of Commerce and Consumer Affairs New Zealand; and
  • any other applicable government or statutory body or authority.
• RFS Date means the earlier of the date that the Vendor informs us that a Service is operational and ready for service, when the Service is made available for use, or when you commence to use the Service.
• Scheduled Maintenance means maintenance that the Vendor considers is required to ensure that it maintains an appropriate level of service.
• Service means a telecommunications service, carriage service, and/or a product or service supplied by the Vendor, as more particularly specified in a SOW.
• SOW Terms means the terms which govern the SOW, which may include terms attached to the SOW or an overarching master services agreement.
• Supplied Equipment means equipment supplied by the Vendor.
• Vendor means a third-party engaged by us to provide a Service, Vendor Equipment and/or Vendor Infrastructure and includes the Vendor’s own third-party suppliers.
• Vendor Equipment means equipment that the Vendor owns or uses that it allows us or you to use or access in relation to a Service.
• Vendor Infrastructure means any facilities, network or equipment (including Vendor Equipment) owned or used by the Vendor.
• Your Equipment means all of your fixtures, chattels, hardware, facilities, materials, fittings, plant, tools, devices, machinery, cables and equipment used in connection with a Service.
• Your Premises means your locations where we or the Vendor provides a Service.

19      Construction

19.1   Unless expressed to the contrary, in this document:

(a)    includes means includes without limitation;

(b)    a reference to:

(i)     a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority;

(ii)    a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;

(iii)   this document includes all schedules and annexures to it; and

(c)    headings do not affect the interpretation of this document.