1. Introduction
1.1 LAB3 Pty Ltd or LAB3 NZ Limited (LAB3, us or we) act as the reseller of software products and related services (Offerings) which are purchased either directly from a third party software or subscription provider (such as IBM or Microsoft) or through their distributor (each referred to in these Terms as a Vendor).
1.2 These Terms set out the terms and conditions upon which the Offerings specified in a quote provided to you by LAB3 (Quote) will be provided to you. These Terms form part of that Quote.
1.3 These Terms will continue to apply:
(a) while the Offerings are being provided to you; or
(b) until terminated in accordance with their terms.
2. Formation of Agreement
2.1 In case of any conflict or inconsistency between these Terms and the terms of any other agreement between you and LAB3 these Terms will take precedence in relation to the Offerings.
2.2 Any different or additional terms and conditions set forth in any purchase order, confirmation, statement of work, quote, or similar form, even if signed after the date of the Quote, will have no force or effect on the Quote or your order.
2.3 This Quote may only be amended by a written amendment signed by both parties expressly modifying the terms and conditions of the Quote (errors and omissions excepted).
2.4 From the occurrence of an Acceptance Event you are bound by the Quote and may not cancel or amend any associated order, except in the event of a material default by LAB3 (in which case cancellation must be in writing and specify in reasonable detail the nature of the default).
2.5 An Acceptance Event means the occurrence of any one of the following:
(a) your acceptance of the Quote;
(b) issuance of a purchase order to LAB3 referencing the Quote; or
(c) payment to LAB3 for the Offerings referred to in the Quote.
2.6 Notwithstanding the occurrence of an Acceptance Event, the Quote and any associated orders remain subject to acceptance and cancellation by the Vendor, and LAB3 reserves the right to reject or cancel any Quote and/or associated orders where rejected or cancelled by the Vendor or where the Vendor terminates any agreement.
2.7 LAB3 is not liable for any cancellation, rejection, termination, delay of any order, or discontinuation of any Offering, by the Vendor except where this has resulted from LAB3’s material default.
2.8 LAB3 has no obligation to provide any refund or credit or accept any returns, except to the extent the same is provided or accepted by the Vendor. You must comply with all procedures required by the Vendor, including proof of entitlement and the return of licence documentation, licence keys and other materials specified by the Vendor.
3. Vendor Terms
3.1 Your use of Offerings is subject to the applicable Vendor Terms (eg. the IBM Terms available at https://www.ibm.com/support/customer/csol/terms/ or the Microsoft IoT Terms available at https://learn.microsoft.com/en-us/windows/iot/iot-enterprise/eula/end-user-license-agreement) (as amended from time to time) and you agree that Acceptance Event also constitutes acceptance by you of these terms and the applicable Vendor Terms.
3.2 The Vendor is not a party to these Terms and has no direct obligations to you under these Terms.
3.3 Unless caused directly by LAB3 we will have no liability to you for:
(a) failure to allocate to you or reserve for you any Offerings;
(b) failure to deliver Offerings within a specified time period;
(c) availability and/or delays in delivery of Offerings;
(d) discontinuation of all or any part of an Offering; or
(e) cancellation of any order by the Vendor.
4. Offerings Warranties and Disclaimers
4.1 LAB3 is the reseller of the Offerings which it sources from the Vendor on your behalf and at your request.
4.2 LAB3 is not responsible for, disclaims liability for, and does not offer any warranties in relation to, the performance, quality, specifications, features, functionality, fitness for purpose, reliability and availability of the Offerings, the documentation relating to the Offerings, the delivery, implementation, deployment or provisioning of the Offerings by the Vendor, your use of the Offerings, or maintenance or support of the Offerings by the Vendor
4.3 LAB3’s only obligation in relation to the above is to pass through to you any transferable warranties, indemnities, and remedies provided to LAB3 by the Vendor, to the extent LAB3 is authorized to do so by the Vendor. Your sole and exclusive remedies relating to the Offerings are the remedies provided by the Vendor.
4.4 A sales receipt (or other documentation specified by the Vendor) is necessary for proof of warranty entitlement and to obtain applicable upgrades.
5. Payment Terms
5.1 The fees specified in the Quote will be invoiced in full upon the Acceptance Event, with invoices due for payment to LAB3 within 20 days of the invoice date.
5.2 If payment is not made on time, LAB3 may reschedule, suspend or cancel any outstanding orders and/or declare that all outstanding balances under all invoices are immediately due and payable.
5.3 You agree to pay interest in the amount of 1.5% per month, or the highest rate permitted by law, whichever is less, on any payment past due until paid to LAB3.
5.4 Amounts in the Quote are exclusive of all applicable taxes, levies, duties, VAT or GST which are your responsibility.
5.5 You agree to pay to LAB3 all costs and expenses, including reasonable legal fees and the fees of any collection agency and court costs, incurred by LAB3 in exercising any of its rights or remedies under, or enforcing, these Terms.
6. Term, Renewal, and Termination
6.1 Where an Offering is stated in the Quote to be subject to automatic renewal, you will notify LAB3 as soon as practicable (and in any event no less than sixty (60) days prior to the renewal date) if you do not wish to renew the Offering for a further term. If you do not provide the required notice the Offering will renew automatically for the same period.
6.2 Renewals of Offerings may be subject to a price review, including where any applicable foreign currency exchange rates apply.
6.3 Offerings which are subscription services do not commence until the first day of the subscription term stated in the Quote, even if made available to you in advance.
6.4 Where you have ordered Offerings for a committed term no credit or refund will be given by LAB3 if you terminate or cancel the Offering during that term and you agree to pay any unpaid amounts due for the committed term.
7. Your Obligations and Use Restrictions
7.1 You must comply with all installation, configuration and use restrictions set out in the Vendor’s documentation (including the Vendor Terms) and any restrictions on unbundling or separating Offerings components where supplied as part of an Offerings package.
7.2 You must not resell, sub-license, rent, lease, assign or transfer any Offerings, or use any Offering to provide hosting, managed, or other IT services to third parties, without LAB3’s written consent.
7.3 You must not use the Offerings in any system or application where their failure could result in death, serious injury, or property or environmental damage.
7.4 You must comply with all applicable import, export control, and economic sanction laws, and not export, re-export, transfer, or make available any Offering to any prohibited destination, entity, or person under applicable export laws.
7.5 You are solely responsible for the adequacy, legality, and accuracy of all data input to the Offerings, and for maintaining appropriate backups of that data.
7.6 You agree to provide written guidance of any security requirements for access to facilities, systems, and networks where required to ensure proper implementation, warranty, service, and support for the Offerings.
7.7 Where the Quote is for IBM Offerings which are “Passport Advantage Eligible Products” you warrant that you have a Passport Advantage Express (or equivalent) agreement in place with IBM.
7.8 Where the Quote is for Microsoft IoT Offerings you warrant that you have a valid Microsoft Customer License Agreement (CLA) number, which authorises you to obtain and use Microsoft IoT licenses.
8. Ownership and Intellectual Property
8.1 All intellectual property rights in the Offerings remain the property of the Vendor and you acquire only those rights expressly granted to you under the Vendor Terms.
8.2 Ownership and title of any goods used in the provision of the Offerings will not pass to you until you have paid all amounts owed to LAB3.
9. Audit and Verification
9.1 You must maintain for at least three years, and provide upon reasonable request, accurate records of your use of the Offerings, as well as proof of entitlement, licence documentation, receipts and activation or installation records.
9.2 We may use these records to verify that the Offerings have been used and paid for in accordance with the Quote and these Terms.
9.3 You acknowledge that the Vendor or its auditors may conduct license or entitlement verifications directly with you as permitted under the Vendor Terms and agree to cooperate with any vertifications conducted by the Vendor, including by providing access to records, documentation, systems or personnel as reasonably required.
10. Indemnities
10.1 LAB3 is not responsible for and has no duty to defend, indemnify, or hold you or any other party harmless from or against any claims, demands, or causes of action arising from or relating to actual or alleged product liability, breach of security, loss of data, or infringement of intellectual property rights related to the manufacture, sale, or use of the Offerings.
10.2 You agree to indemnify, defend and hold harmless LAB3, our affiliates and the Vendors, and each of ours and their respective officers, directors, employees, and agents from and against any liabilities, losses, damages, costs or expenses of any kind arising or resulting from claims, demands, actions or proceedings of any kind arising from or resulting from any of the following done by you, your affiliates or any of your or their personnel, officers, suppliers or agents:
(a) use of the Offerings in a manner other than as specified in the Vendor Terms, descriptions or specifications;
(b) breach of the Vendor Terms or these Terms;
(c) acts or omissions which result in a third party claim against LAB3 or a Vendor; or
(d) violation or alleged violation of any applicable laws or regulations.
11. Limitation of Liability
11.1 LAB3’s aggregate liability arising out of or in connection with the Offerings is limited to actual, proven, direct damages suffered by you, and will not exceed the amount paid by you to LAB3 for the Offerings in the 12 months prior to the date on which the relevant liability arose, regardless of the basis for the claim.
11.2 To the extent permitted by law, neither party will be liable for special, incidental, exemplary, indirect, or consequential damages, or for lost profits, business, value, revenue, goodwill, or anticipated savings.
12. Data Processing and Privacy
12.1 You consent to LAB3 and the Vendor collecting using, storing and disclosing your data, including your business and contact information, to the extent necessary to enable LAB3 and the Vendor to provide the Offerings and related services, process transactions, perform entitlement verification and to meet Vendor program requirements.
12.2 You agree that LAB3 may process data provided by you which contains personal information in accordance with our Privacy Policy, available at (available at https://www.lab3.com.au/privacy-policy).
12.3 You also acknowledge that IBM’s Data Processing Addendum (available at https://www.ibm.com/dpa) applies to any processing of personal data by IBM and that IBM processes business contact and account data in accordance with the IBM Online Privacy Statement (https://www.ibm.com/privacy).
