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DRIVEN BY INNOVATION ®
DRIVEN BY INNOVATION ®
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DRIVEN BY INNOVATION ®
DRIVEN BY INNOVATION ®
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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 NZ Limited (LAB3) 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 damage) arising from late provision of the Goods or 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.
Risk in the Goods shall pass to the Client immediately upon the provision of the Goods to the Client or the delivery of the Goods to the Client’s nominated location (unless otherwise agreed by the parties in writing).
Ownership and title of any Goods 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:
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.
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 2020 (NZ) 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. 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 the Client’s Microsoft licences, products or consumption through subscription(s).
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 New Zealand or elsewhere in the world.
Deliverables means the Materials that LAB3 is required to deliver to the Client as expressly described in the Statement of Work (but excludes modifications, amendments or enhancements to, or derivatives of, pre-existing LAB3 Materials).
Material means material in any form, including documents, reports, information, diagrams, drawings, libraries, data, designs, software, products, code, templates, or tools.
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 the Client upon payment in full to LAB3 for that Deliverable.
Subject to the Client’s compliance with these Terms and Conditions, LAB3 grants the Client a non-exclusive, non-transferable, revocable and royalty free licence to use LAB3 Materials incorporated into the Deliverables, to the extent required for the Client to enjoy the benefit of, and exercise its rights in, the Deliverables.
The Client grants to LAB3 a non-exclusive, non-transferable, royalty-free licence to use, copy and modify the Client’s Materials and data solely to the extent necessary to perform its obligations under the Statement of Work.
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 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 or these Terms and Conditions to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
The affected party must:
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.
LAB3 may subcontract, outsource or otherwise arrange for another person to perform all or part of the Services (including parties who are outside of New Zealand), subject to obtaining the Client’s prior written consent (not to be reasonably withheld or delayed).
Notwithstanding the above paragraph, LAB3 is not required to obtain the Client’s prior written approval for the use of:
The Client agrees that where LAB3 subcontracts, outsources or arranges for a party outside of New Zealand to perform part or all of the Services, that party may access the Client’s data and environments for the purposes of performing the Services.
LAB3 will remain liable to the Client for the lawful acts and omissions of any subcontractor engaged by LAB3.
Each party agrees that during, and for 6 months after the end of, the term of the Statement of Work it will not 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 wirtten consent of the other party (such consent not to be unreasonably withheld) except to any Related Company (as defined in the Companies Act 1993 (NZ)) or to a new holding company or controlling entity, provided that the 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 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 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 use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation, or other 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 New Zealand. The mediation will be conducted in accordance with the Mediation Rules of the New Zealand Dispute Resolution Centre (NZDRC) and with a mediator as agreed by the parties or, failing agreement, as appointed by the CEO of the NZDRC.
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 New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.