Econstruct Consulting Services Terms

1. Overview
1.1. These are the terms and conditions on which Econstruct Consulting Pty Ltd ACN 164 700 378 ( Econstruct ) will perform services specified in a Statement of Work (the Services ) for the Customer identified in that Statement of Work.
1.2. The Statement of Work and these terms and conditions (collectively referred to as the Agreement ) are the entire agreement between the parties relating to the services, and supersede all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
1.3. No pre-printed terms on any purchase order or on any confirmation, invoice or other document issued by or on behalf of the Customer will vary or form part of this Agreement.
1.4. Where there is any inconsistency between the Statement of Work and these terms and conditions, these terms and conditions shall prevail.
2. Supply of Services
2.1. Econstruct must perform the Services with due care and skill and in accordance with all laws applicable to it as a supplier of the Services.
3. Customer assistance
3.1. The Customer must provide Econstruct with all reasonable and necessary assistance, including by providing access to sites, information and any other items reasonably required by Econstruct, so as to facilitate the performance of the Services.
4. Delays
4.1. Both parties must use reasonable endeavours to perform their obligations in accordance with any milestones or timelines (if any) set out in a Statement of Work.
4.2. If an act or omission of the Customer delays or adversely impacts the performance of the Services then, in addition to the Charges, Econstruct will be entitled to recover the additional costs it incurs as a direct result of the delay or adverse impact.
5. Disclaimers
5.1. The Customer acknowledges and agrees that it has not relied on any representation or statement set out in any marketing, sales or other documentation that is not expressly included or incorporated in this Agreement or the Statement of Work. The Customer should ensure the Statement of Work adequately reflects its requirements.
5.2.

Any reports, advice or opinions, communications or other materials provided to the Customer by Econstruct (Deliverables) , whether written or oral:

(a) are provided solely for the use of the Customer in connection with this Agreement; and
(b) may not be disclosed to, or relied on by, any third party (other than the Customer's professional advisors advising on the performance of this Agreement) without Econstruct’s prior written consent.
5.3. In providing the Services, Econstruct may discuss ideas with the Customer orally, or show the Customer drafts of Deliverables. To the extent that the content of such draft Deliverables or oral advice is finalised and confirmed to the Customer in writing, such writing shall supersede any previous draft Deliverables or oral advice. Econstruct shall not be responsible or liable for any losses or damages suffered or incurred if the Customer or others choose to rely on, or act or refrain from acting on, the basis of such draft Deliverables or oral advice.
5.4. Econstruct has no obligation to update its advice, recommendation or assessments, or any of the Deliverables based on circumstances that occur after Econstruct has supplied the Services or if this Agreement has been terminated.
5.5.

The Customer acknowledges and agrees that:

(a) the Deliverables have been prepared based on information and other materials provided by the Customer to Econstruct ( Customer Information );
(b) Econstruct is not responsible for checking, verifying or otherwise confirming the quality, accuracy and completeness of the Customer Information;
(c) the quality of the Deliverables is contingent on the quality, accuracy and completeness of the Customer Information;
(d) while Econstruct uses its best endeavours to prepare the Deliverables accurately, the Customer acknowledges that there is always the possibility of error or ambiguity arising from the interpretation of the Customer Information or the performance of the Services;
(e) the Services are provided on the basis that the Customer will verify the Deliverables and ensure they meet its requirements prior to relying on them for its business purposes; and
(f) to the extent permitted by applicable laws, Econstruct excludes all liability to the Customer for any losses suffered or incurred by the Customer as a result of any inaccuracies in the Customer Information.
6. Charges, invoicing and payment
6.1. The Customer must pay Econstruct the Charges.
6.2. The Charges are exclusive of any expenses incurred by Econstruct, including travel, accommodation and subsistence, and of any goods and services purchased on the Customer’s behalf ( Expenses ). Econstruct may pass through any Expenses to the Customer in addition to the Charges.
6.3. The Charges are exclusive of any taxes or other charges which may be imposed on Econstruct in connection with this Agreement. This includes (but is not limited to) any goods and service tax ( GST ) imposed under the A New Tax System (Goods and Service Tax) Act 1999 (Commonwealth) as amended. If GST is imposed on a supply made under or in connection with this Agreement then, the consideration provided for that supply is increased by the rate at which that GST is imposed. If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed.
6.4. If this Agreement is terminated, Econstruct shall be entitled to be paid Charges for work performed and Expenses incurred up to the termination date.
6.5. Econstruct will invoice the Customer in advance or as otherwise specified in the Statement of Work.
6.6. Invoices are payable within 14 days of the date of the invoice (or such other payment period as may be specified in the Statement of Work).
6.7. Econstruct may suspend the performance of the Services if the Customer has not paid an amount due and payable under this Agreement.
7. Confidentiality and Privacy
7.1. Each party ( Recipient ) must keep confidential and not use or disclose any Confidential Information of the other party ( Disclosing Party ).
7.2. The Recipient must take all reasonable steps to safeguard the confidentiality of the Confidential Information of the Disclosing Party.
7.3.

The Recipient may disclose Confidential Information of the Disclosing Party to those of its Personnel:

(a) that need to know for the Recipient to exercise any of its rights or perform any of its obligations under this Agreement (and only to the extent that they need to know); and
(b) that have entered into a confidentiality agreement with the Recipient containing terms protecting the Confidential Information of the Disclosing Party which are no less onerous than this clause 7.
7.4.

The obligations in clause 7.1 do not apply to Confidential Information that is:

(a) required to be disclosed by applicable laws or the rules of any stock exchange upon which the Recipient's or any of its related entities' securities are listed;
(b) in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence; or
(c) already known, or rightfully received or created, by the Recipient independently of this Agreement.
7.5. Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement.
7.6. To the extent the Customer discloses any Personal Information to Econstruct, the Customer warrants that it has given all necessary notifications and obtained all necessary consents required to disclose that information to Econstruct and to enable its lawful use by Econstruct.
8. Intellectual Property
8.1. Each of Econstruct and the Customer owns, and will continue to own, all Intellectual Property Rights subsisting in any material it provides or makes available to the other party under or in connection with or under this Agreement ( Background IP ).
8.2. Each party grants to the other party a non-exclusive, world-wide, royalty free licence to use its Background IP for the purposes of performing its obligations, or exercising its rights under this Agreement.
8.3.

In relation to all Intellectual Property created by Econstruct, whether solely or jointly with others, during, arising out of or in the course of this Agreement (the Developed IP ), Econstruct:

(a) will own all right, title and interest to any and all of the Developed IP; and
(b) grants the Customer a perpetual, non-exclusive, licence to use the Developed IP for the purposes of performing its obligations under, and exercising its rights under, this Agreement.
9. Limitation of Liability
9.1. Under the Australian Consumer Law ( ACL ), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services.
9.2. Nothing in this Agreement operates to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, any statutory condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which cannot be excluded, restricted or modified.
9.3.

If Econstruct fails to comply with a statutory guarantee which by law may not be excluded, then to the extent the law permits Econstruct to limit its liability in respect of such failure, Econstruct’s liability is limited to:

(a)

in relation to services:

(i) re-performance of the services; or
(ii) the payment of the cost of having the Services re-performed; and
(b)

in relation to goods:

(i) the replacement or resupply of the goods; or
(ii) the repair of the goods; or
(iii) the payment of the cost of having the goods replaced or repaired.
9.4.

Except for liability to which clauses 9.2 or 9.3 applies:

(a) Econstruct's liability under or in connection with this Agreement (whether in contract, tort (including negligence), statute or otherwise) is limited in aggregate to the total amount of the Charges paid to Econstruct under this Agreement in the 12 months prior to the acts or omissions giving rise to that liability; and
(b)

Econstruct will not be liable for:

A. any loss of profit, loss of revenue, loss of anticipated savings, loss of goodwill, business interruption, loss of use, loss of data, loss of opportunity, economic loss or aggravated, punitive or exemplary damages; or
B. any other special, indirect or consequential loss or damages.
9.5. Subject to clause 9.2 and to the extent allowed by law, Econstruct excludes all implied terms, warranties and conditions in relation to the Services, including that the Services are suitable or fit for any purposes.
9.6. Each party’s liability to the other party in connection with this Agreement is reduced to the extent the liability was caused by the other party or any of its Personnel.
10. Termination
10.1.

Either party may terminate this Agreement by written notice to the other party:

(a) if the other party commits a material breach of its obligations under this Agreement that cannot be remedied or, if the breach is capable of remedy, the breach is not remedied within 30 days after receipt of a notice from the first party identifying the breach and requiring its remedy; or
(b) if the other party fails to pay an amount when due and payable under this Agreement (including in the case of the Customer a failure to pay Charges) and does not rectify the failure within 30 days after receipts of a notice from the first party requiring that the amount be paid.
10.2. On termination of this Agreement the rights and obligations of the Customer and Econstruct cease except in relation to clauses 7, 8, 9 and 12.1.
11. Insurance
11.1.

Econstruct will effect and maintain for the term of this Agreement:

(a) professional indemnity insurance with cover of $1 million per claim, and $2 million in the aggregate for all claims;
(b) public liability insurance with cover of $10 million per claim; and
(c) any other insurance required by law.
12. General
12.1. Each party will use best endeavours to attempt to resolve any dispute or disagreement arising out of this agreement through good faith negotiations prior to commencing any proceedings against the other party in a court or tribunal.
12.2. A party will not be liable to the other for a failure to perform its obligations that arises due to an event or circumstance that is beyond the reasonable control of that party, except that nothing in this clause excludes or limits a party's liability for a failure to pay money.
12.3. A notice or demand under this Agreement ( Notice ) must be in writing and signed by a person duly authorised by the sender and sent to the recipient's address for Notices specified a Statement of Work. A Notice takes effect on delivery if hand delivered, on the fifth business day after the date of posting if sent by prepaid, certified or registered post, and on the business day after the date the email enters the recipient’s mail server if sent by email.
12.4. The Customer consents to Econstruct subcontracting any part of this agreement, provided that Econstruct remains responsible for the acts of any subcontractor.
12.5. A delay by a party in exercising a right will not amount to a waiver of that right. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
12.6. Any variation to this Agreement must be in writing and executed by the parties.
12.7. If this Agreement is electronically served on and/or signed by the Customer by way of electronic communication (including the use of a third party platform to facilitate the service and signing of this agreement), the Customer agrees that the Customer's electronic signature and initials created for the purpose of signing this agreement are the same as handwritten signatures and initials for the purposes of validity, enforceability and admissibility.
12.8. This Agreement may be executed in counterparts. All executed counterparts constitute one document.
12.9. A term or part of a term of this agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement will continue in force.
12.10. This agreement is governed by the law of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
13. Definitions
13.1.

In this Agreement:

Charges means the fees and Charges set out in, or calculated in accordance with, the Statement of Work.

Confidential Information means, in relation to a party, all information of that party which is or has been:

(a) disclosed to the other party;
(b) learned or acquired by the other party; or
(c) designated as confidential by the first party, and includes in the case of Econstruct:
(d) the terms of this Agreement; and
(e) the design of, and processes that form part of, the Services.

Intellectual Property Rights means copyright and neighbouring rights (including moral rights), all rights in relation to inventions (including patents), registered and unregistered trademarks, business names, domain names, registered and unregistered designs, circuit layouts, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, data analytics, technological, literary or artistic fields.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Personnel of a party means that party's directors, employees, agents, subcontractors and advisers.

Privacy Laws means Privacy Act 1988 (Cth) and the Australian Privacy Principles.

Statement of Work means a proposal, service description, engagement letter, electronic form, electronic consent to a published service description, or other similar document or consent in a form approved by Econstruct that incorporates these terms and conditions.

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