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LAB3 Dr Migrate
Licence Agreement
Version 1.7 | Effective 29 August 2022
1.1 The LAB3 Group (being LAB3 Pty Ltd and LAB3 NZ Limited) (LAB3, us we) has developed software known as Dr Migrate which enables organisations to, among other things, determine and understand the complexity, cost and overall parameters, including for the migration of, an On-Premise systems environment to a cloud based solution.
1.2 These Licence Agreement terms (Terms) govern access to and use of Dr Migrate, including all associated features and functionalities, by individuals or organisations who purchase, or otherwise use, Dr Migrate (Client, you or your).
1.3 By deploying, accessing, or using Dr Migrate, or requesting LAB3 or a third party (such as Microsoft) to do so on your behalf, you accept these Terms as a binding contract (whether on behalf of yourself or a legal entity you represent).
1.4 These Terms will continue to apply to, and govern your use of, Dr Migrate while Dr Migrate is deployed on your environment. If you do not accept and comply with these Terms, you may not use Dr Migrate or its features.
1.5 In the case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including a statement of work, any master services agreement or work order or purchase order) then these Terms will take precedence in relation to the subject matter of these Terms.
2.1 These Terms take effect and bind the Parties from the date Dr Migrate is deployed on your environment (Effective Date). These Terms will continue to apply to, and govern your use of, Dr Migrate and the Dashboard for so long as Dr Migrate is deployed on your environment, or until these Terms are terminated in accordance with clause 17 (Licence Period).
3.1 Subject to payment of all applicable Licence Fees, we grant you a non-transferrable, non-exclusive, royalty-free licence to access and use Dr Migrate for the Permitted Purposes during the Licence Period only, and strictly in accordance with these Terms.
4.1 Subject to your compliance with these Terms, we permit you, on a non-exclusive basis, to:
(a) input de-identified data into Dr Migrate (Client Data);
(b) access and use the Dashboard;
(c) use any results displayed on the Dashboard, or otherwise produced by Dr Migrate, based on Client Data;
(d) utilise Dr Migrate to orchestrate the execution of migrations to a cloud based solution,
(each a Permitted Purpose) during the Licence Period.
5.1 You must comply with any reasonable directions as notified by us to you from time to time in relation to use of Dr Migrate and the Dashboard.
5.2 You must not (and you must ensure that your Personnel do not):
(a) sell, sub-licence, distribute or transfer any part of your right to access and use Dr Migrate or the Dashboard;
(b) use Dr Migrate or the Dashboard in any way or for any purpose other than as specifically contemplated by these Terms;
(c) attempt to modify, adapt, translate, de-compile, disassemble, copy, create or otherwise reverse engineer or reverse compile Dr Migrate or the Dashboard (or any part of them);
(d) attempt to circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Dr Migrate or the Dashboard or that control access to or use of Dr Migrate or the Dashboard;
(e) attempt to interfere with or disrupt Dr Migrate or the Dashboard;
(f) copy, share, distribute, alter, customise, modify or create derivative works of Dr Migrate or the Dashboard;
(g) tamper with, hinder the operation of or make unauthorised modifications to Dr Migrate or the Dashboard;
(h) attempt to access or discover the underlying algorithms or data models used to generate the Dashboard; or
(i) use Dr Migrate or the Dashboard for any unlawful purpose.
6.1 You are solely responsible (at your own cost) for:
(a) providing all equipment, software and internet access necessary to access and use Dr Migrate and the Dashboard; and
(b) ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with Dr Migrate and the Dashboard.
6.2 You must:
(a) provide us with all reasonable assistance and cooperation as reasonably requested by us from time to time in the provision of Dr Migrate, including (where applicable) by providing access to relevant platforms and systems upon which Dr Migrate is deployed and any Client Data that is inputted into Dr Migrate;
(b) immediately report any security violations or misuse of Dr Migrate to us;
(c) not alter, change, remove or obscure any notices or other indications (including copyright notices) as to ownership of Dr Migrate;
(d) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and
(e) comply at all times with applicable laws, protocols, policies, guidelines and any reasonable directions issued by us from time to time.
6.3 If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure.
6.4 We may suspend your access to Dr Migrate and the Dashboard at any time if required under law or if we reasonably consider that you are in breach of these Terms.
7.1 We acknowledge that, as between the Parties, all right, title and interest in the Client Data is owned by you.
7.2 You agree that we (including our Personnel) may access, use, modify and reproduce any Client Data in accordance with these Terms and as required to perform our obligations under these Terms.
7.3 You acknowledge and agree that the Client Data and any results produced by Dr Migrate (whether or not the results are based on the Client Data) may be used by us on a de-identified anonymised basis, without cost and at our discretion, for the purpose of improving Dr Migrate and for the purpose of supplying Dr Migrate and other products and services to our other clients.
7.4 You warrant that:
(a) you have all necessary rights and consents to use your Client Data in connection with Dr Migrate and the Dashboard and to permit us to use your Client Data in accordance with these Terms; and
(b) your Client Data and its use by us in the manner permitted by these Terms will not breach any laws or the rights of any person.
7.5 Notwithstanding anything to the contrary in these Terms, you consent to our collection of diagnostic, technical, usage and related information regarding your use of Dr Migrate and the Dashboard. We may use such information to monitor your compliance with your obligations under these Terms, to enable us to have discussions with third parties who may be funding your deployment of Dr Migrate and for internal business purposes.
8.1 You acknowledge that any log-in details or licence keys used to access Dr Migrate and the Dashboard are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.
8.2 You are solely responsible for any use (or misuse) of Dr Migrate and the Dashboard arising from a failure to keep information secure in accordance with clause 8.1.
9.1 We are the owner or authorised licensee of all Intellectual Property Rights subsisting in Dr Migrate and the Dashboard (including in any augmentations, modifications, improvements or enhancements to, or derivatives of, Dr Migrate and the Dashboard) and of any other materials provided by or on behalf of us to you in connection with these Terms (LAB3 IP).
9.2 Nothing in these Terms assigns or transfers ownership of any LAB3 IP.
9.3 Intellectual Property Rights in any materials (including any software, documents, results, information, data and business processes) created or developed by us (whether or not for you, us, or a third party) through use of Dr Migrate or the Dashboard, and otherwise in the performance of these Terms will, upon their creation, immediately vest in and be exclusively owned by us.
9.4 You assign to us immediately on creation any and all Intellectual Property Rights created or developed by you or on your behalf through your use of Dr Migrate or the Dashboard.
10.1 Each Party agrees to keep confidential, and not to use or disclose, other than as permitted in these Terms, any Confidential Information of the other Party, except:
(a) as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure;
(b) with the prior written consent of the Party who supplied the information;
(c) if the information is in the public domain or comes into the public domain other than as a result of breach of these Terms;
(d) if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or
(e) if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence.
10.2 Each Party agrees to take all prudent steps, including maintaining effective security measures, to protect the Confidential Information of the other Party from unauthorised access, use, copying or disclosure.
10.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms.
11.1 You must pay the applicable Licence Fees for Dr Migrate, which will be charged either direcctly by us or through a third party (such as Microsoft).
12.1 Neither Party will commence court proceedings or action against the other Party under or in connection with these Terms (other than where urgent interlocutory relief is required) unless it has first attempted to resolve the dispute using the following process (Dispute Resolution Process):
(a) following notice from either Party invoking the process, the Parties must meet within 7 days or such other time as agreed to discuss and attempt to resolve the dispute; and
(b) failing resolution of the dispute within 20 days after the first meeting between the Parties in accordance with clause 12.1(a), the Parties must refer the matter to a mediation to take place in Melbourne, Victoria and be conducted in accordance with the Australian Disputes Centre (ADC) Mediation Guidelines and with a mediator as agreed by the Parties or, failing agreement, as appointed by the CEO of the ADC.
13.1 We warrant that Dr Migrate will substantially conform to any applicable product and service specifications that we provide to you in writing.
13.2 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of clause 13.1, will be the re-supply of Dr Migrate in accordance with the warranty in clause 13.1, or if this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid Licence Fees for the remaining period in the Licence Period as at the date of termination.
13.3 Subject to any non-excludable terms and any express warranties in these Terms, Dr Migrate and the Dashboard are provided by us “as is”. To the fullest extent permitted by law, we exclude all warranties, representations, implied terms and guarantees not expressly stated in these terms, including any warranty or representation that Dr Migrate or the Dashboard will be fit for any particular purpose or will be error-free or uninterrupted. LAB3 does not make any representations or warranties with respect to the outputs of Dr Migrate or any results of use of Dr Migrate.
13.4 In particular, and without limiting clause 13.3, we do not take any responsibility for, do not support, and are not liable in any way to you for any third party services, products, platforms or add-ins (Third Party Services) (including Microsoft Azure or other Microsoft products) or for any failure of Dr Migrate or the Dashboard caused by such Third Party Services (including any changes to any such Third Party Services).
13.5 We will use commercially reasonable efforts to ensure that Dr Migrate is free of any code designed or intended to disable or impede the normal operation of, or provide unauthorised access to, your networks, systems, software or environments.
13.6 For the avoidance of doubt, nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified. If we are liable for breach of any guarantee or warranty that cannot be excluded or modified by law, then to the extent permitted by law, our liability for that breach will be limited to (at our discretion) re-supplying Dr Migrate or payment of the cost of having Dr Migrate supplied again in accordance with the respective guarantee.
13.7 You acknowledge and agree that:
(a) any use of, or reliance on, information which is made available to you through Dr Migrate and the Dashboard is undertaken entirely at your own risk; and
(b) we do not control the transfer of data over the internet and that access to Dr Migrate and the Dashboard may be subject to limitations, delays, and other problems inherent in the use of the internet.
14.1 We will provide agreed support services for Dr Migrate only where support services have been expressly purchased by you.
14.2 Where you have purchased support services then, regardless of which version of Dr Migrate was purchased by you, we will only support:
(a) the current release of Dr Migrate; and
(b) the immediately preceding release of Dr Migrate for 60 days after the release date of the current release,
unless we expressly agree otherwise.
14.3 To the extent permitted by law, all other support and warranties relating to previous releases of Dr Migrate or the Dashboard end when a new version is released.
15.1 You agree to indemnify us, and our Related Bodies Corporate and their respective directors, officers, agents and employees, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid, or incurred by us arising out of or in connection with:
(a) any breach by you or your Personnel of these Terms, except to the extent that such Loss is caused or contributed to by us; or
(b) any claim that our use of Client Data infringes the rights (including Intellectual Property Rights) of any other person; or
(c) any claim relating to Loss suffered as a result of your reliance on any information or results provided through Dr Migrate or the Dashboard.
16.1 Subject to clause 16.2, and to the extent permitted by law, LAB3’s maximum cumulative liability for any Loss sustained by you under or in connection with Dr Migrate and these Terms will be limited to AUD $100,000.
16.2 Nothing in these Terms limits or excludes the liability of a Party for:
(a) personal injury or death, or damage to or loss of real or personal property;
(b) a breach of clause 11.1 (Licence Fees); or
(c) acts of fraud, misrepresentation or wilful misconduct.
16.3 Each Party’s liability for Consequential Loss on any basis including under tort (including negligence), under statute, for breach of contract, at common law or in equity is entirely excluded.
17.1 Where not inconsistent any other agreement between the Parties relating to Dr Migrate (including a statement of work, master services agreement, work order or purchase order) you may terminate these Terms for your convenience at any time by providing us at least 30 days’ notice in writing, however you will forfeit any Licence Fees paid to us as at the date of termination.
17.2 We may terminate all or part of these Terms or suspend your access to and use of Dr Migrate and the Dashboard:
(a) if you have not paid a correctly rendered and undisputed invoice within 14 days after the date on which payment is due, and we have provided you with written notice that payment is overdue, and you have not made payment within 14 days of receiving such notice;
(b) immediately if you are in breach of these Terms; or
(c) for convenience by providing you with at least 30 days’ notice in writing.
18.1 Upon termination or expiry of these Terms:
(a) your licence to access and use Dr Migrate will immediately cease;
(b) the licence key (if any) provided to you will expire;
(c) we will be entitled to remove Dr Migrate from your environments; and
(d) each Party will promptly return to the other Party (or if requested to do so, securely destroy and certify the destruction of) all copies of all Confidential Information of the other Party in their possession or control, except to the extent that the Party is required by law to retain a copy of such Confidential Information or otherwise permitted to do so by these Terms.
18.2 Despite any other provision of these Terms, this clause 18, clauses 7.3 (Client Data), 10 (Confidentiality), 12 (Disputes), 14 (Release support), 15 (Indemnity), 16 (Liability) and 20 (General Provisions), and any other obligations which are expressed to or, by their nature, survive expiry or termination of these Terms and will continue to the benefit of and be enforceable by us.
19.1 You agree to permit us to associate all relevant Microsoft attributions with LAB3 in your systems. This may include enabling LAB3 as your DPOR (Digital Partner of Record) and/or enabling us to link or associate our Microsoft Partner ID (through PAL (Partner Admin Link) or CPOR (Claiming Partner of Record)) to your Microsoft licences, products and consumption through subscription(s).
20.1 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.
20.2 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.
20.3 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.
20.4 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.
20.5 Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Victoria, Australia. Each Party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts exercising jurisdiction in the State of Victoria, Australia 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.
20.6 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.
20.7 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.
In this document:
Confidential Information of a Party means in respect of a Party (the disclosing Party) any information obtained by the other Party from the disclosing Party or any Personnel or Related Body Corporate of the disclosing Party that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential.
Consequential Loss means any:
(a) loss of revenue, profit, anticipated profit, production, use, opportunity, savings, anticipated savings, contracts or goodwill;
(b) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
(c) loss, damage or corruption of data;
(d) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,
whether or not such loss may reasonably be supposed to have been in the contemplation of the Parties, at the time they entered into this Agreement, as the probable result of the relevant breach, act or omission.
Dashboard means that part of Dr Migrate, as made available to you pursuant to these Terms, which displays the results produced by Dr Migrate using Client Data that is hosted within your environments.
Effective Date is defined in clause 2 of these Terms.
Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trademarks all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world.
Licence Fees means the fees payable by you for the provision of Dr Migrate either directly by LAB3 or through a third party provider.
Licence Period is defined in clause 2 of these Terms.
Loss means 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.
On-Premise means information technology infrastructure physically located on the Client premises or data centre.
Parties means LAB3 and the Client and Party means either LAB3 or the Client, as the context requires.
Personnel means, in relation to an entity, that entity’s directors, officers, employees, agents, service providers and contractors and includes directors, officers, employees and agents of that Party’s contractors.
Related Body Corporate has the meaning given in the Corporations Act (Cth) 2001.
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.