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LAB3 Pty Ltd (LAB3) will provide to the party specified in the Statement of Work (Client) the goods and services specified in the Statement of Work (Goods and Services).
LAB3 will provide the Goods and Services with due care, skill and diligence and in accordance with the Statement of Work (which incorporates these Terms and Conditions). LAB3 will ensure that the LAB3 personnel providing the Goods and Services are properly qualified, skilled, experienced and trained for the tasks they are to perform under the Statement of Work.
Client acknowledges that any dates and times specified for the provision of the Goods or Services are estimates only and LAB3 is not liable to Client for any loss or damage arising from late provision of the Goods or Services.
Where the Service being provided is a human resource, then unless otherwise specified in the Statement of Work LAB3 may at any time substitute that resource with another resource of equivalent skills and experience.
Client must:
• provide LAB3 with all assistance and cooperation as reasonably requested by LAB3;
• make all necessary arrangements to enable LAB3 to provide the Goods and Services including access to personnel, systems and facilities and authority to work with third parties;
• provide to LAB3 all information and documentation as specified in the Statement of Work or as otherwise reasonably requested by LAB3 from time to time;
• respond in a timely manner to reasonable queries of LAB3 and avoid unreasonable delays in making decisions;
• act reasonably and in good faith in exercising any right, remedy, discretion or obligation under the Statement of Work, at law or otherwise;
• ensure that materials supplied to LAB3 are complete, accurate and in the format required by the Statement of Works or as otherwise agreed by the parties;
• appoint and maintain sufficient numbers of appropriately qualified personnel to liaise with LAB3 in relation to the provision of the Goods and Services;
• otherwise do all things it is required to do under the Statement of Work or other documents agreed between the parties; and
• promptly notify LAB3 if it becomes aware of any matter which may affect the Goods or Services.
The provision of the Goods and Services by LAB3 is subject to any assumptions and dependencies set out in the Statement of Work.
If any assumption proves to be incorrect or any dependency is not provided by Client when required this will impact the ability of LAB3 to provide the Goods and Services in accordance with the Statement of Work and the parties will in good faith negotiate a written variation to address the consequences.
LAB3 will not be in breach of the Statement of Work or otherwise be liable to Client to the extent that any failure by LAB3 to comply with its obligations under the Statement of Work is caused or contributed to by Client’s non-performance, delayed performance or breach of its obligations under the Statement of Work.
Unless stated otherwise in the Statement of Work, all prices are exclusive of GST and the currency is Australian Dollars.
Client will be invoiced at the times set out in the Statement of Work (or if nothing is stated, monthly). Invoices are payable within 30 calendar days of the date of the invoice.
If Client disputes an invoice, then Client must notify LAB3 as soon as possible in writing of the reasons why Client is disputing the invoice and pay all undisputed amounts within the time period specified above.
Risk in the Goods will pass to Client immediately upon the provision of the Goods to Client or delivery of the Goods to Client’s nominated location (unless otherwise agreed by the parties in writing).
Ownership and title of any Goods will not pass to Client until Client has paid all invoices related to the Goods to LAB3.
Either party may terminate the Statement of Work immediately where the other party commits:
• a material breach of the Statement of Work which is not capable of being remedied;
• a material breach of the Statement of Work which is capable of remedy and has not remedied the breach within 20 days of being notified by the other party in writing; or
• an act of insolvency or comes under any form of insolvency administration.
To the extent permitted by law, and regardless of how any liability arose, the total liability of LAB3 in connection with a Statement of Work will not exceed the sum of the amounts paid to LAB3 by Client under the Statement of Work in the 12-month period prior to the date on which the relevant cause of action arose.
To the extent permitted by law, LAB3 will not be liable for any indirect, consequential, or incidental damages (including loss of revenue, profit, anticipated savings or goodwill, costs of procurement of substitute goods, deliverables, services, rights or technology, loss, damage or corruption of data, and any loss not arising naturally 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 signed the Statement of Work as the probable result of the relevant breach, act or omission.
Any condition or warranty which would otherwise be implied into a Statement of Work is excluded. Where any law implies into the Statement of Work any condition or warranty that cannot by law be excluded, LAB3’s liability for any breach of such condition or warranty is limited, at LAB3’s option and to the extent permitted, to the repair or replacement of the applicable Goods or Services, or to payment of the cost of repairing or replacing the applicable Goods or Services.
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 Client has advised LAB3 is commercially sensitive.
Each party must:
• perform its obligations in compliance with the Privacy Act 1998 (Cth) and other applicable privacy legislation;
• only use personal information or data provided to it by the other party for the purposes of performing its obligations under the Statement of Work; and
• take reasonable steps to protect all personal information and data held by it from misuse and unauthorised access, modification or disclosure.
Unless expressly stated otherwise in the Statement of Work, Client is solely responsible for:
• providing and maintaining a secure network and network security components in respect of its systems, including any firewalls or security related hardware or software;
• ensuring its systems have adequate protection against viruses and malicious software and maintaining appropriate industry-standard virus checking software;
• protecting and backing-up its systems and data; and
• preparing, maintaining and implementing appropriate systems and data disaster recovery plans and procedures.
LAB3 will not be liable for, and will not be required to perform, any Client data re-entry, Client system recovery, or other disaster recovery assistance, unless the relevant issue or loss is solely the result of LAB3’s failure to have adequate protections, back-ups or disaster recovery practices in place as expressly required under in the Statement of Work.
Client permits LAB3 to associate in Client’s systems all relevant Microsoft attributions with LAB3. This may include enabling LAB3 to link or associate its Microsoft Partner ID (through PAL (Partner Admin Link) or CPOR (Claiming Partner of Record)) to Client’s Microsoft licences, products or consumption through subscription(s).
The ownership of the Intellectual Property Rights in any material which exists prior to the date of the Statement of Work or which is created independently of the Statement of Work (including modifications, amendments or enhancements to, or derivatives of, such material) will not be altered, transferred or assigned merely by virtue of any use of such material for the purposes of the Statement of Work.
All Intellectual Property Rights in a Deliverable are owned by and are assigned to Client upon payment in full to LAB3 for that Deliverable.
Subject to Client’s compliance with the Statement of Work, LAB3 grants Client a non-exclusive, non-transferable, revocable and royalty free licence to use LAB3 materials incorporated in the Deliverables, to the extent required for Client to enjoy the benefit of, and exercise its rights in, the Deliverables.
Client may sub-licence the above licence but only to a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) or with the written consent of LAB3.
Client grants to LAB3 a non-exclusive, non-transferable, royalty-free and sublicensable licence to use, copy and modify Client’s materials and data, and any third-party materials provided by or on behalf of Client, to the extent necessary to perform its obligations under the Statement of Work.
For the purposes of this provision:
Deliverables means those things that LAB3 is required to deliver to Client which are expressly described as “deliverables” in the Statement of Work (but excludes modifications, amendments or enhancements to, or derivatives of, pre-existing LAB3 materials).
Intellectual Property Rights means all rights generally falling within the scope of this term including patents, trademarks, service marks, circuit layout rights, trade names, inventions, trade secrets, copyright (including future copyright), moral rights, rights in a design, know-how, confidential information, whether registered or unregistered (and whether registrable or not), and all rights in any applications for or registrations of such rights, existing in Australia or elsewhere in the world.
Notwithstanding the provision of any other Client document, including Client’s Purchase Order Terms and Conditions or other commercial agreement, the Statement of Work will take precedence.
Where any provision in the body of the Statement of Work is inconsistent with these Terms and Conditions then the provision in the body of the Statement of Work will take precedence.
A Force Majeure Event is an event out of a party’s reasonable control, such as an act of God, fire, lightning, earthquake, cyclone, flood, subsidence or other natural disaster, pandemic or epidemic, national emergency, insurrection, civil disorder, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), military operations or act of terrorism, shortage of power or shortage of material from a normal source of supply and excludes any act or omission of a party.
Neither party will be liable for any delay or non-performance of its obligations under the Statement of Work to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
The affected party must:
• do all reasonable things to avoid, minimise the duration or, and mitigate the consequences of the Force Majeure Event;
• promptly notify the other party of the occurrence of the Force Majeure Event; and
• when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other party.
Nothing in this provision releases either party from any obligations to pay the other party in accordance with the Statement of Work.
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 specified in the Statement of Work.
The parties’ 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.
Client will be available for ad-hoc reference calls and case studies relating to the Goods and Services provided under the Statement of Work.
Unless otherwise agreed, LAB3 may use Client’s logo in reference material for future potential clients and stakeholders of LAB3.
LAB3 may subcontract, outsource or otherwise arrange for another person to provide the Goods or perform all or part of the Services (including parties who are outside of Australia), subject to obtaining Client’s prior written consent (not to be reasonably withheld or delayed).
Notwithstanding the above, LAB3 is not required to obtain Client’s prior written approval for the use of:
• individuals or subcontractors who are retained by LAB3 (including through a third-party employer of record) to perform day to day tasks of a kind ordinarily performed by employees of LAB3; or
• subcontractors who are not engaged specifically and solely in relation to the provision of the Goods or performance of the Services and who are instead engaged by LAB3 in relation to LAB3’s business generally.
Where LAB3 subcontracts, outsources or arranges for a party outside of Australia to provide the Goods or perform part or all of the Services, that party will have the same access to Client’s data, systems and materials as LAB3 personnel located in Australia for the purposes of providing the Goods and Services.
All LAB3 personnel (regardless of location) will be subject to LAB3’s supervision and training, be required to adhere to LAB3’s policies and standards and to any specific Client data protection and security requirements agreed in writing. LAB3 will remain liable to Client for the lawful acts and omissions of any subcontractor engaged by to LAB3.
During, and for 6 months after the end of, the term of the Statement of Work, neither party will solicit, engage or employ any personnel of the other party who is or has been employed by the other party and involved in the performance of the party’s obligations under the Statement of Work, without the consent of the other party.
This restriction does not apply to personnel who were approached by means not specifically targeted at that person, such as an advertising campaign open to all comers or through the use of recruitment tools on job boards, social media and networking sites to send messages to groups of people with a particular job title or set of skills.
Neither party may assign, novate or otherwise transfer any of its rights or obligations under the Statement of Work without the prior written consent of the other party (such consent not to be unreasonably withheld) except to any Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) or to a new holding company or controlling entity, provided that that party must immediately notify the other party in writing of any such assignment, novation or transfer.
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 only be amended or varied only by agreement in writing signed by the parties.
Each party will pay its own legal and other costs and expenses in connection with the preparation, execution, and completion of the Statement of Work.
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.
If a dispute arises out of or relates to the Statement of Work, neither party may commence any court or arbitration proceedings relating to the dispute unless it has first complied with this provision, except where a party seeks urgent interlocutory relief.
A party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties must first use reasonable endeavours to resolve the dispute by informal means.
If the dispute is not resolved within 21 days of notice being given (or within such further period agreed in writing by the parties), the parties must refer the matter to a mediation to occur in Melbourne, Victoria. The mediation will 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.
Both parties must continue to fulfil their obligations under the Statement of Work while the above procedure is being followed.
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.
