Term of service (“Service Terms”).
1. Unless otherwise agreed in advance and in writing by Lifecycle Plus, Service Terms and any SOW constitute the entire agreement in relation to Lifecycle Plus’ provision of Services to Customer (“Contract”).
2. A Contract supersedes all prior understandings, arrangements and agreements between Lifecycle Plus and Customer in relation to the Services set out in a SOW.
3. Lifecycle Plus is under no obligation to:
a. enter into a SOW; or
b. otherwise provide any services to Customer.
4. To the extent of any inconsistency between any provision of Service Terms and a SOW, Service Terms will prevail but only to the extent of the inconsistency.
5. Each SOW will set out the manner in which the SOW may be terminated by Lifecycle Plus or Customer, however in the absence of such being set out, the SOW may be terminated:
a. immediately without notice by Lifecycle Plus in the event that Customer breaches any provision of Service Terms or the SOW;
b. by 30 days notice without cause by either of Lifecycle Plus or the Customer being given to the other,
and in all events of termination, Customer will pay Lifecycle Plus’ Fees for Services performed or part performed at the time of termination.
6. Services that Lifecycle Plus may provide Customer, include Lifecycle Plus:
a. receiving Assets from manufacturers, distributors or resellers at Facility;
b. performing pre-deployment activities on Assets such as imaging;
c. storing Assets at Facility;
d. sending Assets from Facility to Site (“Delivery”);
e. performing installation of Assets at Site;
f. performing de-installation of Assets at Site;
g. collecting Assets from Site and delivering to Facility (“Collection”);
h. erasing Data contained on Assets at Site or Facility (“Data-Wiping”);
i. inspecting, processing and recording specifications, condition and functionality details of Assets;
j. reporting the results of Processing to Customer;
k. recycling Assets;
l. providing an online platform through which Customer can manage its Assets.
7. Services will be deemed to have been accepted by Customer on Lifecycle Plus providing the Services.
8. Each SOW will set out:
a. fees that Customer will pay Lifecycle Plus for providing Services specified in the SOW (“Fees”);
b. the timing of when Lifecycle Plus may issue tax invoice(s) to Customer for Fees, however in the absence of such being set out, Lifecycle Plus may issue tax invoices to Customer for Fees immediately on completing the Services to which the Fees relate.
c. unless otherwise stated in an SOW, Fees are exclusive of GST and Customer must pay to Lifecycle Plus the GST Amount at the same time that it pays Fees for the Services to which the Fees and GST Amount relate.
9. Customer must pay any tax invoice issued by Lifecycle Plus within 30 days of Customer being provided the invoice by Lifecycle Plus.
Workplace Health Safety
10. Customer must ensure at all times that
a. any Site on which Personnel are present complies with all applicable work health and safety laws;
b. the health and safety of Personnel on Site;
c. it complies with Lifecycle Plus’s reasonable directions in relation to work health and safety while Personnel are on site.
a. except where Customer engages Lifecycle Plus by prior written agreement to erase Data, Customer warrants to Lifecycle Plus that any Assets in relation to which Lifecycle Plus provides Services do not contain any Data (“Data Warranty”); and
b. Customer maintains a recoverable backup of Data and other data and information on any systems or technology equipment to which Lifecycle Plus may have access during provision of Services (“Back-Up Warranty”).
12. Without creating or Lifecycle Plus assuming any obligation to investigate whether:
a. Assets hold Data; or
b. Customer has breached its Data Warranty,
where Lifecycle Plus discovers that Customer has breached its Data Warranty in relation to any Assets, Lifecycle Plus may:
c. at its discretion erase or delete that data from the Assets or physically destroy Drives in the Assets (using any erasure, deletion or destruction methods Lifecycle Plus sees fit to use) without any further reference to Customer (“Breach Wipe”); and
d. (without limiting in any way the operation of any of the Indemnities below) elect that:
i. Customer pay to Lifecycle Plus on demand; or
ii. Lifecycle Plus deems as a Deduction,
the costs of any Breach Wipe.
13. In the event that Data-Wiping fails or is otherwise unable to be performed on a Drive then Lifecycle Plus may destroy that Drive without any further reference to Customer and Lifecycle Plus is not liable or responsible to reimburse or pay any compensation to Customer for such destruction.
14. Customer is deemed to have consented to Lifecycle Plus performing all Breach Wipes and Data-Wipes (and to have obtained such consent, if necessary, from any applicable third parties).
15. Without limiting in any way the Indemnities below, under no circumstances will Lifecycle Plus be responsible or liable to Customer or any third party for:
a. any loss, deletion, destruction of, or loss of access to, Data and other data and information on any systems or technology equipment of Customer or any third parties to which Lifecycle Plus may have access during provision of Services; or
b. a failure or part failure to perform a Breach Wipe or any defect or error in any Breach Wipe,
or for any consequences of any event set out in clause 15(a) or (b) occurring.
Risk in Assets
16. Risk in an Asset only passes to Lifecycle Plus upon Lifecycle Plus receiving the Asset at Facility, prior to which event, risk in the Asset remains with the Customer. For the avoidance of doubt and without limitation, Lifecycle Plus initiating, managing, performing or paying for Transport of an Asset does not cause risk in that Asset to pass to Lifecycle Plus.
17. Where risk in an Asset has passed to Lifecycle Plus, it remains with Lifecycle Plus until it leaves Facility.
18. Prior to an Asset being received by Lifecycle plus at Facility, Lifecycle Plus is not liable or responsible for, nor does it assume any liability or responsibility to protect against, Data on or in that Asset being:
a. misused, interfered with, lost or stolen;
b. accessed, modified or disclosed; or
c. otherwise released to a third party,
or the consequences arising from any such event, in any circumstances including during Transport.
19. The provisions in clauses 16 to 18 apply in all circumstances and are not affected by Lifecycle Plus being engaged by Customer (or any other person) to erase Data from an Asset.
20. All LIPR and Know-How remains the property of and vests in Lifecycle Plus. Nothing in Service Terms, SOWs or Contracts confers any right, title or interest in LIPR or Know-How on or to Customer.
21. In the event Customer obtains any right, title and interest in LIPR or Know-How, Customer hereby assigns to Lifecycle Plus all such present and future rights, title and interest in LIPR and Know-How.
22. Customer agrees to perform on demand all further acts necessary to perfect any of Lifecycle Plus rights under clause 21, including by the execution of any deeds or documents.
23. Customer must:
a. not disclose Confidential Information to any person without the prior written consent of Lifecycle Plus;
b. only use Confidential Information to the strict extent it is necessary to so do for the operation of the Service Terms;
c. maintain the confidentiality and security of Confidential Information; and
d. take all steps necessary to safeguard the confidentiality of Confidential Information.
24. Customer’s obligations of confidentiality do not extend to Confidential Information which:
a. is or becomes public knowledge without the fault of Customer or a person to who Customer has disclosed that Confidential Information;
b. is or becomes available to Customer from a source other than Lifecycle Plus, unless such source has disclosed that Confidential Information in breach of obligations of confidentiality it owes to Lifecycle Plus; or
c. is independently developed by Customer without reference to or use of Confidential Information.
25. A receiving Party may disclose Confidential Information strictly to the extent it is necessary to conform to an applicable law provided that prior to such disclosure, Customer:
a. notifies Lifecycle Plus of the requirement to make and the details of, that disclosure; and
b. allows Lifecycle Plus reasonable opportunity to resist such disclosure.
26. Customer must:
a. comply with all applicable Privacy Legislation in relation to Lifecycle Plus’ Personal Information, whether or not Customer is an organisation bound by Privacy Legislation;
b. not do anything or omit to do anything with Lifecycle Plus’ Personal Information that will cause Lifecycle Plus to breach any Privacy Legislation;
c. take all reasonable steps to ensure that the Lifecycle Plus’ Personal Information is protected against any misuse, loss, unauthorised access, modification or disclosure;
d. ensure that Customer’s personnel, agents and representatives complete such privacy training as may be required to ensure their compliance with this clause 26;
f. not transfer Lifecycle Plus’ Personal information outside the country in which it was disclosed to Customer by Lifecycle Plus without Lifecycle Plus’ prior written consent.
27. If Customer becomes aware or suspects that:
a. there has been unauthorised access to, or unauthorised disclosure of, Lifecycle Plus’ Personal Information or Confidential Information ("Information Breach"); or
b. Lifecycle Plus’ Personal Information or Confidential Information has been lost in circumstances where unauthorised access to, or unauthorised disclosure of, the Lifecycle Plus’ Personal Information or Confidential Information may occur (“Loss of Information”),
then Customer must immediately notify Lifecycle Plus of that Information Breach or Loss of Data.
28. If Lifecycle Plus becomes aware, or suspects, that:
a. an Information Breach or a Loss of Data has occurred; or
b. Customer has (or ought to have) notified Lifecycle Plus of an Information Breach or Loss of Data in accordance with clause 27,
then Customer must:
c. Immediately disclose to Lifecycle Plus all information relevant to that actual or suspected Information Breach or Loss of Data (including all relevant information about the processes, procedures, protocols, and security practices and procedures used by Customer);
d. co-operate with Lifecycle Plus in investigating whether an Information Breach or Loss of Data has occurred and the circumstances surrounding that Information Breach or Loss of Data;
e. give Lifecycle Plus all information and access to Customer’s premises, staff, processes and systems reasonably required by Lifecycle Plus for the purpose of carrying out an investigation into the actual or suspected Information Breach or Loss of Data; and
f. advise Lifecycle Plus of the steps taken to stop the Information Breach, the steps taken to prevent any future compromises of the same or a similar type and the steps taken to recover or rectify any compromised Lifecycle Plus’ Personal Information or Confidential information.
29. Customer will promptly provide Lifecycle Plus with all information it requests under or in connection with Service Terms and Contracts (“Customer Information”).
30. Customer warrants to Lifecycle Plus that:
a. all Customer Information is complete, true, accurate, not misleading or deceptive; and
b. Customer will immediately notify Lifecycle Plus in writing of any change to any Customer Information,
Warranties and representations
31. All warranties given and representations made by Customer to Lifecycle Plus in Service Terms are made and given on an ongoing basis.
32. Customer gives and makes the following warranties and representations to Lifecycle Plus:
a. if Customer is a corporation, it is duly organised, validly existing and in good standing in all jurisdictions where the nature of the business transacted by it makes such qualification necessary;
b. Customer has the power, and has taken all necessary actions, to enter into, execute, deliver and carry out the terms and provisions of Service Terms and Contracts and other documents to be executed and delivered as contemplated under Service Terms and Contracts;
c. Service Terms and Contracts are valid and binding on Customer in accordance with their terms;
d. Customer has authority to make the representations and warranties in Service Terms;
e. there is no proceeding pending or threatened, or any other event, matter, occurrence or circumstance which to Customer’s knowledge, challenges or may have a material adverse impact on Service Terms, SOWs or Contracts or the ability of Customer to perform its obligations under Service Terms, SOWs or Contracts (and Customer must immediately notify Lifecycle Plus of any such event that occurs);
f. Customer will comply with and do all things reasonably necessary to help Lifecycle Plus comply with all federal, state, and local laws, regulations, and ordinances in connection with Service Terms and Contracts.
g. Customer is not in breach of, nor will cause Lifecycle Plus to breach any third party Intellectual Property Rights in the performance of Service Terms or Contracts.
33. Customer will defend, hold harmless and indemnify Lifecycle Plus from and against any and all claims, damages, costs (including all legal costs), liabilities and governmental or regulatory action (including any third party claims and liabilities) arising as a consequence or result of:
a. Customer breaching its Data Warranty, Back-Up Warranty or Information Warranty;
b. Customer breaching any other warranties it has given to Lifecycle Plus under Service Terms or a Contract;
c. any representation made by the Customer to Lifecycle Plus in Service Terms or a Contract being incomplete, untrue, inaccurate, misleading or deceptive;
d. any breach of Service Terms or a Contract by Customer;
e. an event of Information Breach or Loss of Data; or
f. a failure or part failure to perform a Breach Wipe or any defect or error in any Breach Wipe by Lifecycle Plus,
34. Customer must not set off any sums owing to it by Lifecycle Plus against any sums Customer owes to Lifecycle Plus, without the prior written consent of Lifecycle Plus. Lifecycle Plus may set off any sums owing to it by Customer against any sums Lifecycle Plus owes to Customer, without needing to give notice to or obtain the consent of Customer.
35. Lifecycle Plus and Customer are independent contractors and nothing in Service Terms or a Contract may be construed as creating a relationship of employment, of partnership, of joint venture, of principal and agent or of trustee and beneficiary.
36. Customer has no right or authority to and must not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of Lifecycle Plus or bind Lifecycle Plus in any way.
37. Lifecycle Plus may subcontract the performance of the Contract or part thereof to any third party at any time without notice to Customer or the consent of the Customer being required.
38. Lifecycle Plus may transfer, assign or novate its rights or obligations under Service Terms or Contracts without Customer’s consent. Customer must not transfer, assign or novate its rights or obligations under Service Terms or Contracts without Lifecycle Plus’ prior written consent.
39. Lifecycle Plus may revise, amend or cancel Service Terms (“Revised Terms”) at any time and by way of any of the following:
a. giving Customer notice; or
b. posting Revised Terms on Lifecycle Plus’ website, and
by continuing to enter SOWs, Customer agrees:
c. to be bound by Revised Terms; and
d. any and all resulting SOWs and Contracts will be governed by the Revised Terms.
40. Other than in the case of Revised Terms, any amendment or variation of any provisions of Service Terms, SOWs or Contracts must be by prior written agreement of Lifecycle Plus.
41. Lifecycle Plus excludes to the extent permitted by law all guarantees, terms, conditions, warranties, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into Service Terms concerning the activities covered by Service Terms. Customer agrees that it does not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by or on behalf of Lifecycle Plus which is not expressly stated in Service Terms. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to Service Terms and Lifecycle Plus is not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (“Non-Excludable Provision”) and Lifecycle Plus is able to limit the remedy of Customer for a breach of the Non-Excludable Provision, then Lifecycle Plus’ liability for breach of the Non-Excludable Provision is limited to (at Lifecycle Plus’ election):
a. in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); or
b. in the case of services, the supply of the services again (or payment of the cost of doing so).
Subject to Lifecycle Plus’ obligations under the Non-Excludable Provisions and clauses 42, 43 and 44, Lifecycle Plus’ maximum aggregate liability to Customer in respect of any one claim or series of connected claims under Service Terms or in connection with its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise (“Claim”) is limited to an amount equal to the lesser of $100,000 or the amount paid to Lifecycle Plus by Customer under Service Terms in the six months preceding the events giving rise to the Claim.
42. Any liability of Lifecycle Plus for any loss or damage under or in connection with Service Terms, SOWs or Contracts will be reduced in proportion to the extent that Customer or its agents caused or contributed to that loss or damage.
43. Lifecycle Plus will not in any circumstances be liable to Customer or any third party for any indirect, incidental, special or consequential loss or damage which arises out of the performance or failure to perform any obligation contained within or connected to Service Terms, SOWs or Contracts, whether the claim is in contract, tort (including negligence), strict liability or otherwise.
44. Customer must take all reasonable steps to mitigate any costs, expenses, loss, liability or damage it suffers or incurs in relation to or in connection with Service Terms or a Claim. Where this clause 44 conflicts or contradicts any other provision in Service Terms, this clause 44 shall prevail and the other provision shall be modified but only to the extent to give effect to this clause 44.
45. In the event of any provision of Service Terms or an SOW becoming invalid, illegal or unenforceable for any reason, such provision will be deemed to be severed from the other provisions of Service Terms or the SOW, and such invalidity, illegality or unenforceability will not affect any other provisions of Service Terms or SOW which will remain valid and in force.
46. A failure, delay, or indulgence by Lifecycle Plus in exercising any power or right conferred on it by Service Terms or SOW does not operate as a waiver of the power or right. A waiver of any right or power of Lifecycle Plus under Service Terms or SOW does not operate as a waiver of any other breach by Customer.
47. Lifecycle Plus will not be liable for any delay or failure to perform its obligations under Service Terms if such delay is due to an event of Force Majeure.
48. The following will survive termination of Service Terms:
a. Customer’s obligations regarding Confidential Information and Lifecycle Plus’ Personal Information;
b. Title Warranty, Data Warranty, Back-Up Warranty and Information Warranty;
c. any other warranty given or representation made by Customer to Lifecycle Plus in Service Terms;
d. any Indemnity;
e. any other provision of Service Terms which by its nature should survive termination of Service Terms.
49. Service Terms, SOWs and Contracts are governed by and construed in accordance with the laws of New South Wales, Australia. Lifecycle Plus and Customer submit to the exclusive jurisdiction of the courts of New South Wales, Australia in respect of all matters arising out of or relating to Service Terms, SOWs or Contracts, their performance or subject matter.
50. Lifecycle Plus may give notices to Customer by email to Customer’s last known email address and are taken to be delivered upon receipt by Lifecycle Plus of an acknowledgment that the communication has been properly transmitted to Customer. Customer may give notices to Lifecycle Plus by email to firstname.lastname@example.org and are taken to be delivered upon such email entering the electronic systems of Lifecycle Plus.
“Asset” means any technology equipment or good.
“Business Day” means a day other than a Saturday or Sunday or any public holiday declared in New South Wales, Australia.
“Confidential Information” means confidential information of Lifecycle Plus in verbal, written or in any other form including electronic form; knowledge or information regarding Lifecycle Plus’ business transactions, affairs, property, policies, pricing, processes, activities, financiers or finance partners; any document which is marked confidential by Lifecycle Plus; and any document, tangible item or information which Lifecycle Plus advises Customer is confidential or which Customer knows or ought to know is confidential.
“Customer” means the person that wishes for Lifecycle Plus to provide it with Services.
“Data” means data, information or other similar material contained on or in an Asset and/or its parts or components, including where it is defined as Personal Information or Personal Data in and subject to Privacy Legislation.
“Drive” means a hard disk drive, solid state drive or other data storage device or media.
“Facility” means a facility, site or other location operated by Lifecycle Plus.
“Force Majeure Event” means without limitation any insurrection or civil disorder, war or military operations, terrorist act, pandemic or epidemic, national or local emergency, acts or omissions to act of any Governmental Authority, compliance with any statutory, regulatory or legal obligation, severing by a third party of national or international telecommunications facilities, fire, earthquake, lightning, explosion, flood, subsidence, weather of exceptional severity, closure of transport or shipping lanes or any other cause outside of Lifecycle Plus’ reasonable control.
“GST” means a goods or services tax imposed by or through GST Legislation.
“GST Amount” means the amount of GST payable on receiving any taxable supply under a Contract, calculated at the rate of GST in the applicable GST Legislation.
“GST Legislation” means where a supply is made in: Australia the A New Tax System (Goods and Services Tax) Act 1999; in Singapore the Goods and Services Tax Act 1993; in New Zealand the Goods and Services Tax Act 1985.
“Intellectual Property Rights” means all intellectual property rights, whether or not now existing, both registered and unregistered, protected by statute, common law or equity in Australia or elsewhere in the world, including copyright, trade marks, designs, patents, patentable information, circuit layouts and plant varieties, licences and other rights to possess and use the works and other subject matter of intellectual property rights, trading names and domain names, but excluding moral rights.
“ITSG” means Lifecycle Plus Pte. Ltd., Singaporean Unique Entity Number 201910623Z.
“Lifecycle Plus” means LPAU, ITSG or LPNZ (as the case may be).
“Lifecycle Plus’ Personal Information” means information or data in the nature of Personal Information provided by Lifecycle Plus or Personnel to Customer.
“LIPR” means all Intellectual Property Rights which are owned by, or licensed to, or created, developed by Lifecycle Plus or made available by Lifecycle Plus in carrying out its obligations under Service Terms, SOWs or Contracts (including any improvements, modifications or developments thereto).
“LPAU” means Industry Trading Pty Ltd ATF Industry Trading Unit Trust trading as Lifecycle Plus, Australian Business Number 84 675 175 616.
“LPNZ” means Lifecycle Plus Limited, New Zealand company number 6295355.
“Personal Information” has the same meaning as that defined in Privacy Legislation and is also a reference to the term Personal Data where the term Personal Information is not defined in the appliable Privacy Legislation.
“Personnel” means directors, employees, contractors, subcontractors or agents of Lifecycle Plus.
“Privacy Legislation” means the Australian Privacy Act 1988 (Cth), the Singaporean Personal Data Protection Act 2012, the New Zealand Privacy Act 2020 or any other similar law applicable to Data.
“Site” means a site or other location operated by Customer or notified to Lifecycle Plus by Customer.
“Services” means services to be provided by Lifecycle Plus to Customer under Service Terms and as set out in a SOW.
“SOW” means a statement of work or other written documentation agreed in advance in writing by Lifecycle Plus from time to time under Service Terms which sets out the Services to be provided by Lifecycle Plus to Customer.
“Transport” means Delivery, Collection or any other event of Lifecycle Plus taking possession of and/or transporting an Asset.
The following rules of interpretation shall apply unless the text otherwise dictates:
headings are for convenience only and do not affect the interpretation of the underlying text; the singular includes the plural and vice versa; any thing includes the whole and each part of it; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; the words ‘such as’ and ‘including’ and similar expressions are not used as nor are they intended to be interpreted as words of limitation; when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; a person means a natural or legal person of any type or form; an item includes a part of that item; a reference to a person includes its successors and permitted assigns; a clause, term, schedule or attachment is a reference to a clause or term of, or schedule or attachment to these Service Terms; applicable law includes any relevant legally binding decree, law, Ministerial decision, regulations, rule, order, by‐law, ruling, decision or directive issued by a Governmental Authority or Court, and, in each case is a reference to that applicable law as amended, consolidated, re-enacted or replaced.