TERMS AND CONDITIONS - CARLAB

LSC provides CarLAB, which is an online database which provides users with information relating to automotive immobiliser and remote keyless entry systems.

This agreement sets out the terms and conditions on which LSC will provide the User with access to and use of CarLAB. This agreement applies regardless of how the User accesses and uses CarLAB, including but not limited to, by desktop computer, laptop, smartphone or tablet.

By clicking the ‘I accept’ button or otherwise confirming the User’s acceptance electronically, the User agrees that it has read, understood and will be bound by these terms and conditions and any LSC Notices (collectively, agreement).

1. Dictionary

In this agreement, the words below have the following meanings:

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.

CarLAB means the online database which made available by LSC for use by the User from time to time and which provides Users with information relating to automotive immobiliser and remote keyless entry systems.

CarLAB Services means the services described in clause 2.

Confidential Information means all information and other content disclosed by LSC to the User and includes this agreement, the Subscription Fees and information provided in connection with the CarLAB Services (including Data) but excludes information that:

(a) is public knowledge or becomes available to the User from a source other than LSC (otherwise than as a result of a breach of confidentiality); or

(b) is rightfully known to, or in the possession or control of the User and not subject to an obligation of confidentiality in accordance with the terms of this agreement.

Consequential Loss means:

(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and

(b) any loss beyond the normal measure of damages.

Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.

Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.

Data means all data, information, content or communications uploaded to, or accessible from, CarLAB or otherwise generated by CarLAB or as a result of the use or operation of CarLAB.

Documentation means any manuals, guides, reference materials or other similar documents in any form made available by LSC to the User in connection with CarLAB.

Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.

Government Authority means any governmental, semi-governmental, municipal, statutory, judicial or quasi-judicial authority, department, agency, body, entity, organisation, commission or tribunal.

Improvement means any modification, alteration, development, new use or other change to CarLAB which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way preferable.

Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.

Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.

LSC means Locksmiths Nominees Pty. Ltd. as trustee of the Locksmiths Supply Trust (ABN 73 809 492 283).

LSC Infrastructure means the computer servers or other hardware used by LSC in connection with its provision of the CarLAB Services.

LSC Notices means any notices provided to the User by LSC from time to time under this agreement (including by LSC posting or otherwise making the notice available on CarLAB).

Login Details means the user name, password and other login details used by the User from time to time for the purpose of accessing CarLAB.

Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.

PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

Registration Form means the registration or other form prescribed by LSC and submitted by the User to LSC for LSC to supply to the User the CarLAB Services.

Subscription Fees means the subscription fees payable to access CarLAB and to receive the CarLAB Services, as specified in the Registration Form.

Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any Government Authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.

Term means the period set out in the Registration Form.

Third Party Application means any product, service, system, application or internet site integrated or interfaced with CarLAB that is owned or operated by a Third Party Provider, and that is used by the User in connection with CarLAB.

Third Party Provider means any third party that provides support, technology and/or other products or services that are used by the User in connection with CarLAB.

User means the person who registers for, or otherwise requests that, LSC to provide them with the CarLAB Services.

2. Term

This agreement will continue for the Term, unless terminated earlier in accordance with clause 14.

3. CarLAB Services

3.1 During the Term LSC will provide the CarLAB Services to the User on the terms and conditions of this agreement.

3.2 The CarLAB Services will consist of LSC:

(a) using commercially reasonable endeavours to provide the User with access to and use of CarLAB during the Term;

(b) permitting the User to access and use CarLAB solely for the internal business purposes of the User; and

(c) providing the User with access to and use of the Documentation during the Term.

4. No exclusivity

The User acknowledges and agrees that all rights granted to the User under this agreement (including all rights to use CarLAB) are non-exclusive.

5. Features of CarLAB

The User acknowledges that LSC retains the sole discretion regarding the features, functions and other benefits of CarLAB. Nothing in this agreement requires LSC to provide or maintain any features, functions or other benefits in respect of CarLAB and LSC may at any time vary, modify or suspend the features, functions and other benefits available to the User in respect of CarLAB. The User also acknowledges and agrees that nothing in this agreement limits LSC’s right to discontinue or alter any such features, functions or other benefits from time to time.

6. Third Party Applications

The User acknowledges that CarLAB may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features or functionality. The User acknowledges that access to such Third Party Applications or services and any support for such Third Party Applications or services must be obtained directly from the relevant Third Party Provider at the User's cost. LSC does not make any representations or warranties regarding any such Third Party Applications or services and will not be responsible for any issues in respect of Third Party Applications or services or any Loss suffered by the User in connection with any Third Party Applications or services or the User's dealings with Third Party Providers.

7. Login Details

7.1 LSC may provide the User with Login Details from time to time.

7.2 The User must:

(a) keep all Login Details confidential and secure; and

(b) notify LSC immediately if the User has any grounds to believe that the Login Details may have been disclosed to or accessed by any other person.

7.3 The User agrees that LSC may change, amend, cancel or disable the Login Details at any time and for any reason LSC considers appropriate.

8. User responsibilities and obligations

8.1 The User will be responsible for:

(a) the day to day use and operation of CarLAB;

(b) ensuring that the use of CarLAB by the User complies with all applicable laws, regulations and codes of conduct;

(c) obtaining all consents, permits or approvals necessary to use CarLAB;

(d) satisfying itself that CarLAB is compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, Third Party Applications and other technology necessary to be able to access and use CarLAB;

(e) ensuring that it maintains back up or alternate systems for use if CarLAB is unavailable or is otherwise unable to be used by the User; and

(f) without limiting clause 8.2(c), ensuring that any other person who accesses CarLAB on the User’s behalf or with the User’s Login Details complies with the terms of this agreement as if that person were bound as the User.

8.2 The User must:

(a) use CarLAB and any Data only for its internal business purposes in accordance with this agreement;

(b) only use the Documentation to the extent necessary to use CarLAB;

(c) not permit any other person to use CarLAB;

(d) not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of CarLAB and not create derivative works from all or any part of CarLAB;

(e) not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in CarLAB;

(f) not create derivative works from all or any part of CarLAB;

(g) not distribute, transfer, assign, rent, lease, lend, sell, licence or otherwise dispose of all or any part of CarLAB or any compilation derived from CarLAB; and

(h) not make any part of CarLAB (including any Data) publicly available.

9. Support

Unless otherwise agreed in writing between LSC and the User, LSC is not required to provide any technical or other support to the User in relation to CarLAB and nothing in this agreement imposes obligations on LSC to develop, release or install for the User any updates, upgrades, patches, bug fixes, new releases or new versions in respect of CarLAB (Updates), provided, however, that if LSC does develop or release any Updates, it may deploy or install such Updates and/or require that all such Updates be used by the User.

10. Fees and expenses

10.1 In consideration of the provision of the CarLAB Services, during the Term the User agrees to pay to LSC the Subscription Fees.

10.2 The User will pay the Subscription Fees to LSC in accordance with the payment terms set out in the Registration Form.

10.3 If the User fails to pay any Subscription Fees or other amounts due to LSC under this agreement then (without prejudice to LSC’s other rights):

(a) LSC may charge the User interest on all amounts overdue at the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amounts become overdue until LSC receives effective payment of all such amounts (including all interest); and

(b) LSC may issue a notice to the User stating that the relevant amount is overdue (Overdue Notice). If LSC does not receive payment of the relevant Subscription Fees or other amounts within 14 days of the date of the Overdue Notice, LSC may cease providing the CarLAB Services and may disable the User’s access to CarLAB until such time as the outstanding amount is paid in full (together with any interest). LSC will not be liable for any Loss suffered by the User as a result of LSC exercising its rights under this clause 9.3(b).

11. Suspension

LSC may suspend the User’s right or ability to access CarLAB or any part of CarLAB where LSC determines such suspension is necessary including to address security risks or where the User has breached any obligation under this agreement. LSC will use reasonable endeavours to minimise the duration of any such suspension and to provide prior notice to the User of any such suspension. The User will be required to pay the Subscription Fees and any other amounts notwithstanding any suspension under this clause 12 and LSC will not be liable for any Loss incurred by the User as a result of or in connection with any suspension under this clause 12.

12. Force Majeure

12.1 LSC will not be liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to a Force Majeure Event.

12.2 If a Force Majeure Event under clause 13.1 exceeds 20 Business Days, LSC may immediately terminate this agreement by written notice to the User.

13. Termination

13.1 LSC may, by written notice to the User, terminate this agreement with immediate effect if:

(a) the User has breached any term of this agreement and, if the breach is capable of remedy, has not remedied the breach within 14 days or receiving notice requiring the breach to be remedied;

(b) the User is the subject of an Insolvency Event; or

(c) in accordance with clause 13.2.

13.2 Upon termination or expiry of this agreement taking effect:

(a) the User must immediately:

(i) cease using CarLAB;

(ii) pay to LSC all Subscription Fees, expenses or other amounts payable to LSC under this agreement which have accrued or are payable as at the date of termination;

(iii) return to LSC any Documentation in the User’s possession or control; and

(iv) if requested by LSC, provide LSC with written confirmation that it has completed its obligations under this clause 14.2(a); and

(b) LSC ceases to have any obligations under this agreement with respect to the provision of the CarLAB Services and may disconnect the User’s access to CarLAB, disable all Login Details and delete any Data stored on the LSC Infrastructure.

13.3 For the avoidance of doubt, following termination of this agreement taking effect, LSC will be entitled to retain any Subscription Fees paid by the User.

14. Confidentiality

14.1 The User:

(a) may use Confidential Information solely for the purposes of this agreement;

(b) must keep confidential all Confidential Information; and

(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by LSC; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of LSC.

14.2 The User must notify LSC immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

15. Intellectual Property

15.1 The User acknowledges that nothing in this agreement grants the User any ownership of, or (subject to clauses 16.3 and 17.2) rights in respect of, the Intellectual Property Rights in CarLAB, any Data, any Documentation, any Intellectual Property Rights in any materials created as a result of the performance of the CarLAB Services or any Improvements to CarLAB or Documentation created in connection with this agreement.

15.2 Any Intellectual Property Rights in respect of CarLAB, CarLAB Services, Data or Documentation which is created by or vests in the User during the Term is assigned to LSC immediately upon the Intellectual Property Rights being created or vesting in the User and the User agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.

15.3 During the Term LSC grants the User a limited, non-exclusive, non-transferrable and revocable licence to use CarLAB and Documentation solely to the extent such use is necessary for the User to receive the CarLAB Services. Unless revoked earlier by LSC, the licence granted under this clause 16.3 terminates immediately upon the termination or expiry of this agreement.

16. Data

16.1 The User acknowledges that LSC will own the Data and all Intellectual Property Rights in respect of the Data and that LSC may use and exploit the Data as its deems appropriate, including without limitation for providing the CarLAB Services to the User.

16.2 LSC grants the User a non-exclusive, non-transferable licence to use the Data during the Term solely for:

(a) the purposes of the User using CarLAB; and

(b) the User's internal business purposes.

16.3 The User acknowledges and agrees that:

(a) the Data does not constitute a recommendation by LSC or any other person regarding whether or not a User should undertake any particular course of action;

(b) LSC does not guarantee the accuracy of any Data;

(c) LSC retains complete discretion regarding the type of Data which will be made available through CarLAB and the format in which such Data will be made available; and

(d) to the maximum extent permitted by law, LSC makes no representations either expressly or impliedly concerning any Data and LSC accepts no liability whatsoever in connection with any Data.

17. Security of CarLAB

17.1 LSC will take all reasonable steps to ensure the security and safety of the Data and other information stored on the LSC Infrastructure, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies. Notwithstanding the above, the User acknowledges that transmissions over the internet cannot be guaranteed to be totally secure and LSC does not warrant and cannot ensure the security of any information or Data provided or uploaded through CarLAB.

17.2 Provided LSC complies with its obligations under clause 17.1 and subject to clause 22, LSC will not be liable for any Loss suffered by the User which arises out of or in connection with:

(a) any computer viruses or malicious code being transferred by or obtained as a result of the use of CarLAB;

(b) any hacking into or other similar attacks on CarLAB or the LSC Infrastructure; or

(c) any other data security issues in respect of CarLAB or the LSC Infrastructure.

18. Hosting and back ups

18.1 From time to time CarLAB may be unavailable for access or use (including for the undertaking of scheduled or unscheduled maintenance in respect of CarLAB or LSC Infrastructure) and LSC will not be liable for the consequences of any CarLAB unavailability and does not make any representations or provide any warranties regarding the availability of CarLAB or the timeframes within which any unavailability in respect of CarLAB will be resolved.

18.2 The User acknowledges that LSC does not provide back up or other similar services in respect of the Data and the User is responsible for implementing its own back up and data retrieval procedures in respect of the Data.

19. Subcontractors

The User agrees and acknowledges that LSC may subcontract the performance of any of its obligations or the exercise of any of its rights under this agreement to any person (without the User’s consent and on such terms and conditions as LSC deems fit from time to time).

20. Access

CarLAB may be accessed and used throughout numerous jurisdictions and LSC makes no representations that CarLAB complies with the laws of any particular jurisdiction. The User is responsible for complying with the laws in any jurisdiction in which they access or use CarLAB.

21. Warranties excluded

To the extent permitted by law, LSC does not warrant or guarantee that:

21.1 CarLAB will be compatible with, or capable of being used on or in connection with, the User’s computer and communications systems;

21.2 the User’s access to CarLAB will be uninterrupted or error free; or

21.3 CarLAB and any Data will be accurate, reliable or fit for any particular purpose.

22. Liability and indemnity

22.1 If the User is a Consumer, LSC acknowledges that the User may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the goods or services supplied by LSC and nothing in this agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.

22.2 If the User is a Consumer and any goods or services supplied by LSC to the User are non PDH Goods or Services, LSC’s liability to the User in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at LSC’s discretion) to:

(a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and

(b) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

22.3 If the User makes a claim against LSC which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, LSC expressly excludes all liability in respect of the goods or services supplied by LSC to the User.

23. GST

Unless otherwise expressly stated in writing in this agreement, all amounts payable by the User in connection with this agreement do not include an amount for GST. If GST is payable on any supply made by LSC under this agreement, the User must pay to LSC, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the User is required by this agreement to reimburse or indemnify LSC for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that LSC will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by LSC in respect of the reimbursement or payment. This clause does not merge on completion or termination of this agreement. In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning given to them by that Act.

24. Taxes

If the User is required by law to make any deduction or withholding for any Taxes from any payments to LSC under this agreement such that LSC would not receive the full amount of the Subscription Fees or other amount payable, the User agrees to:

24.1 deduct or withhold the amount for Taxes from the payment;

24.2 promptly pay the amount deducted to the relevant Government Authority on time and otherwise in accordance with the relevant law;

24.3 provide to LSC an original receipt, certificate or other evidence of payment of the deducted or withheld amount; and

24.4 pay an additional amount to LSC at the same time as the affected payment is due so that, after making the deduction or withholding and any further deductions or withholdings on the additional amount payable under this clause 24, LSC receives an amount equal to the amount it would have received if no deductions or withholdings had been made.

25. Miscellaneous

25.1 In this agreement:

(a) the singular includes the plural and vice versa;

(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;

(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;

(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;

(e) headings are inserted for convenience and do not affect the interpretation of this agreement;

(f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement; and

(g) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.

25.2 The parties acknowledge that LSC enters into this agreement in its capacity as trustee of a trust and not in its own capacity.

25.3 The User must not assign or otherwise deal with any of its rights or obligations under this agreement without LSC’s prior written consent. LSC may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under this agreement (including any right to be paid or chose in action) at any time in circumstances where, in the opinion of LSC acting reasonably, the assignment will not adversely affect the rights of the User.

25.4 A failure to exercise or delay in exercising any right under this agreement does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under this agreement must be in writing and is only effective to the extent set out in that written waiver.

25.5 If any provision of this agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this agreement without affecting the validity or enforceability of the remaining provisions.

25.6 This agreement is governed by the laws in force in Victoria, and the User and LSC submit to the non-exclusive jurisdiction of the courts of Victoria.

25.7 The termination or expiry of this agreement does not operate to terminate any rights or obligations under this agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 9.3, 14.2, 14.3, 16, 17, 23, 24, 25 and 26.

25.8 Each party must:

(a) do all acts necessary or desirable to give full effect to this agreement; and

(b) refrain from doing anything which might prevent full effect being given to this agreement.

25.9 The relationship between the parties is and will remain that of independent contractors, and nothing in this agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.