Subscription Terms and Conditions

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This Agreement is made on and commences on the date on which Econstruct accepts an Order Form submitted by the Customer. The parties to this agreement are Econstruct Consulting Pty Limited ABN 15 164 700 378 (“Econstruct”) and the party whose name and details are set out in the Order Form (“Customer”).

1. Definitions and interpretation

1.1 Definitions

In this Agreement:

Ancillary Software	means third-party software and technology services not owned or controlled by Econstruct, including but not limited to Xero.
Commencement Date	means the date on which Econstruct accepts an Order Form submitted by the Customer.
Confidential Information	of a person means all information (regardless of the form of disclosure or the medium used to store it) treated by that person as confidential, or which the person to whom it is disclosed ought to reasonably know is confidential, and in the case of Econstruct includes the terms of this Agreement and its subject matter, but in the case of the Customer, Confidential Information does not include the Customer Data.
Consequential Loss	means: (a) any indirect, incidental, consequential, special, exemplary, or punitive loss or damages, whether or not the other party has been notified of the possibility of those losses or damages; and (b) any loss of business, loss of profits, loss of revenue, loss of goodwill, loss of business opportunity, loss of anticipated savings, loss of data, or loss arising from business interruption.
Customer Data	means any data that the Customer or any of its Users upload or import to the SaaS Services.
Fees	means the Subscription Fees, and Professional Services Fees (as applicable).
Intellectual Property Rights	means all intellectual property rights and related rights, anywhere in the world, registered or unregistered, including: (a) patents, copyright (including software), rights in circuit layouts, registered designs, trade marks, know-how, inventions and the right to have confidential information kept confidential; and (b) any application or right to apply for registration or grant of any of the rights referred to in paragraph (a) above.
IPR Claim	means a claim by a third party against the Customer claiming that the Customer’s use of the SaaS Services in accordance with this Agreement infringes the Intellectual Property Rights of that third party but excluding any claim arising from: (a) Customer Data; (b) access or use of the SaaS Services in combination with any hardware, system software or other materials or services not provided by Econstruct; (c) modifications of the SaaS Services other than by or on behalf of Econstruct; or (d) any breach of the restrictions in this Agreement.
Order Form	means the order form, fee proposal, webform, webpage or other similar mechanism adopted by Econstruct from time to time through which the Customer orders the SaaS Services and the Services.
Professional Services	means professional services provided by Econstruct to the Customer, as detailed in an Order Form.
Professional Services Fees	means the fees for professional services specified in the Order Form or other document agreed by the parties.
Services	means the Professional Services or the Support Services.
SaaS Services	means the software product described in the Order Form supplied through a ‘software as a service’ delivery model (but does not include any Ancillary Services).
Subscription	means a subscription for SaaS Services.
Subscription Fees	means the fees specified in the Order Form.
Subscription Term	means the term of a Subscription, as determined in accordance with clause 3(b).
Support Services	means services relating to the support of the SaaS Services.
Usage Metric	means the applicable subscription or usage level specified in an Order Form for the SaaS Services.
User	means the Customer’s officers, employees, contractors and agents.

1.2 In this Agreement:

(a) all amounts are specified in and are payable in Australian dollars;

(b) reference to one gender shall be deemed to include a reference to the other genders;

(d) a reference to a person shall be deemed to include a reference to a company, local government or other statutory body, partnership or other unincorporated association; and

(e) a reference to any statute or statutory provision shall be deemed to include a reference to any amendment, extension, re-enactment or replacement to that statute or statutory provision from time to time.

2. Agreement

2.1 Each time the parties agree an Order Form, a contract will be formed between Econstruct and the Customer for the items described in the Order Form (Agreement) which comprises:

(a) the Order Form;

(b) these Econstruct Subscription Terms and Conditions; and

2.2 If there is any inconsistency between the components of an Agreement, the component listed first in clause 2.1 will prevail to the extent necessary to resolve that inconsistency.

3. Term

(a) The term of each Agreement commences on the Commencement Date and, unless terminated earlier in accordance with its terms, ends:

(i) for SaaS Services, on expiry of the applicable Subscription Term; and

(ii) for Professional Services, on completion of the performance of the applicable services and all related obligations specified in the applicable Order Form.

(b) The Subscription Term will be a recurring monthly term (or such other recurring period specified in an Order Form) and will automatically renew until a party notifies the other that it wishes to end the Subscription Term, in which case the Agreement will terminate at the end of the then current Subscription Term or in 30 days, whichever is later.

4. Use rights

4.1 Terms of Licence

(a) Econstruct grants to the Customer a revocable (in accordance with this Agreement), non-exclusive, non-sublicensable and non-transferable licence to access and use, and permit its Users to access and use, the SaaS Services solely for the Customer’s internal business purposes for the duration of the Subscription Term.

(b) The Customer may only use the SaaS Services in accordance with any documentation, specifications, or manuals provided as part of the SaaS Services.

(c) The Customer acknowledges and agrees that this Agreement does not give the Customer a right to use, supply or licence the SaaS Services to, for or on behalf of a third party.

(d) The Customer acknowledges that usage and access of the SaaS Services will be via either a web address or a mobile device application (App). In this instance, the Customer’s use of the App will allow mobile connectivity in respect of the SaaS Services so that the Customer can, amongst other things, upload site photos, employee cards and initiate chat facilities in a remote fashion and without the need of a desktop computer. If the Customer wishes to use the App, the Customer must download the App from the Apple App Store or the Google Play Store.

(e) To avoid any doubt, the Customer has no right to download, reproduce or copy the SaaS Services or App (or parts thereof) onto its own or any third-party computer, phone or other machine, other than as specified in this Agreement.

(f) The Customer agrees that Econstruct or its related bodies corporate owns all rights, title and interest, including all Intellectual Property Rights in the SaaS Services and the App and in all related collateral and materials, including domain names, company and business names, trademarks, logos and goodwill.

(g) Any feedback, comments, recommendations, feature requests, ideas and suggestions for improvements provided by the Customer to Econstruct (Feedback) will be considered non-confidential and non-proprietary to the Customer. All Feedback will be exclusively owned by Econstruct.

4.2 Trial Period

(a) Econstruct may provide the Customer with a 30-day trial (or such longer period as may be agreed between Econstruct and the Customer) during which the Customer may use the SaaS Services on the terms of this Agreement, but without charge (Trial Period).

(b) If, on completion of the Trial Period:

(i) the Customer chooses not to continue with its subscription for the SaaS Services, this Agreement will terminate at the end of the Trial Period; or

(ii) the Customer chooses to continue with its subscription for the SaaS Services, the Customer must pay the Subscription Fees with effect on and from completion of the Trial Period.

4.3 Customer Acknowledgment

The Customer acknowledges and agrees that:

(a) the Customer is responsible for all acts or omissions of its Users and of any other persons that access or use (or attempt to access or use) the SaaS Services on its behalf or with its permission, or using any logins or credentials assigned to it;.

(b) it must not exceed the Usage Metrics for the SaaS Services, and additional fees may apply for usage that exceeds the applicable Usage Metrics for SaaS Services;

(c) nothing in this Agreement conveys to the Customer any right, title or interest in the SaaS Services except those expressly granted pursuant to this Agreement; and

(d) all Intellectual Property Rights created by Econstruct under or in connection with this Agreement are the sole property of Econstruct.

4.4 Ancillary Software

(a) The Customer acknowledges and agrees that:

(i) the SaaS Services may be designed to integrate or interoperate with Ancillary Software;

(ii) if the Customer wishes to use certain functionality of the SaaS Services which integrates or interoperates with Ancillary Software, it must enter into a separate contract with the suppliers of the Ancillary Software. No rights to any Ancillary Software are granted or provided by Econstruct; and

(iii) the Customer may be required to provide the Customer’s registration details to Econstruct in respect of the Ancillary Software for the purposes of integrating and interoperating with the SaaS Services.

(b) Econstruct excludes any liability to the Customer for any damage or loss suffered or incurred by the Customer relating to:

(i) a failure of any Ancillary Software to operate in accordance with the applicable specifications for that software; or

(ii) the use or operation of any Ancillary Software.

4.5 Unauthorised Use

(a) The Customer agrees to take all reasonable steps, consistent with good industry practice, as are necessary to prevent unauthorised use and/or copying of the SaaS Services or any additions, amendments, modifications or improvements thereto or rewrites thereof in any other computer language in whole or in any part whatsoever or any data or information with respect to the SaaS Services.

(b) The Customer will not use the SaaS Services to provide a bureau service to or for other persons.

(i) copy or reproduce the whole or any part of the SaaS Services (or any related documentation) for any reason whatsoever; or

(ii) merge, modify, adapt, translate, reverse, compile or disassemble the SaaS Services or change the configuration of the SaaS Services; or

(d) permit any person to use the SaaS Services other than the Customer and its Users.

5. Customer Data

5.1 Customer Data

(a) The Customer grants Econstruct and its related bodies corporate an irrevocable, non-exclusive and royalty-free licence to:

(i) use, reproduce, host, store, modify, adapt and display Customer Data and all other material that the Customer or any of its Users provide to Econstruct for the purposes of performing Econstruct’s obligations, or exercising Econstruct’s rights, under this Agreement; and

(ii) to sublicence their personnel (including their respective third party suppliers) to exercise the rights granted under clause 5.1(a)(i)

(b) The Customer acknowledges and agrees that Econstruct may also use the Customer Data on an anonymised and aggregated basis for Econstruct’s business and operational purposes, including for ongoing product development and enhancement.

(c) During the Subscription Term, the Customer may export or download the Customer Data from the SaaS Services as provided in the relevant documentation.

(d) The Customer is responsible for ensuring that it has all necessary rights, authorisations and consents (including privacy consents) to enable the Customer to provide the Customer Data to Econstruct, and to permit Econstruct to process, access and use the Customer Data for the purpose of delivering the SaaS Services and the Services and otherwise in accordance with this Agreement.

5.2 Customer acknowledgements regarding data and access

The Customer acknowledges and agrees that:

(a) it must obtain access to the internet, either directly or through devices that access web-based content, and pay any respective service fees associated with such access. In addition, the Customer must provide its own equipment necessary to make such a connection to the internet;

(b) data and information are sent via major telecommunications companies and/or its internet services providers in respect of the SaaS Services, and Econstruct can therefore only influence the receipt with respect to transmission of such information within the technical constraints imposed by the abovementioned providers;

(c) access to the internet and other communication media is associated with risks including but not limited to authentication, data security, privacy, availability of services and reliability of transmission; and

(d) Econstruct will use reasonable endeavours to keep Customer Data secure by maintaining reasonable administrative, physical, and technical safeguards and measures designed to prevent unauthorised access to, or disclosure of, Customer Data, however, Econstruct does not guarantee such security and the Customer hereby acknowledges that there can be no guarantee of security on the internet.

5.3 Privacy

(a) Both parties agree to comply with the Privacy Act 1988 (Cth) and any other relevant legislation as amended from time to time.

(b) In performing its obligations under this Agreement, Econstruct will comply with its privacy policy (which is accessible via https://www.Econstructconsulting.com.au/privacy-policy/) .

6. Confidential Information

6.1 Confidential Information

(a) Each party:

(i) may use Confidential Information of the other party solely for the purposes of this Agreement;

(ii) except as permitted under clause 6.1(a)(iii), must keep confidential all Confidential Information of the other party; and

(iii) may disclose Confidential Information of the other party only:

(A) to its officers, employees, contractors, agents and other personnel who are subject to a legally binding obligation to keep confidential the Confidential Information;

(B) to government authorities in response to a request or demand for information; or

(b) The Customer permits Econstruct to use and reproduce the Customer’s name, logo and any testimonials or quotes provided by the Customer or any of the Users in Econstruct’s marketing materials, and on Econstruct’s websites.

(c) Econstruct may, with the Customer’s prior written consent (which will not be unreasonably withheld or delayed), make media releases regarding the Customer’s decision to use the SaaS Services or to acquire services from Econstruct more generally.

6.2 Media releases

Econstruct may, with the Customer’s prior written consent (which will not be unreasonably withheld or delayed) make media releases regarding the Customer’s decision to use the SaaS Services or to acquire services from Econstruct more generally.

6.3 Trade secret

The Customer acknowledges that the SaaS Services are a trade secret of Econstruct and that irreparable harm may be caused to Econstruct by the unauthorised disclosure of the SaaS Services notwithstanding that Econstruct may have licensed or otherwise disclosed the SaaS Services to other customers or potential customers of Econstruct.

7. Services

7.1 Professional services

The terms set out in Schedule 1 of this Agreement apply if Econstruct supplies Professional Services to the Customer.

7.2 Support Services

The terms set out in Schedule 2 of this Agreement apply to Support Services supplied as part of a Subscription.

8. Changes to this agreement or the SaaS Services and the Services

8.1 Service Changes

(a) The Customer acknowledges and agrees that:

(i) the SaaS Services is supplied using a ‘one to many’ delivery model;

(ii) Econstruct is required to continually update and change its software and related service offerings in order to maintain currency with industry standards and otherwise meet evolving product and business requirements; and

(iii) the Fees have been determined and agreed on the basis that Econstruct will have the flexibility to change the SaaS Services, the Services and this Agreement as set out in this Agreement.

(b) Econstruct may from time to time, change or amend this Agreement, the SaaS Services or the Support Services (a Service Change). However, Econstruct will not make a Service Change that requires the Customer to pay any additional Fees, or deprives the Customer of a substantial or material benefit of the SaaS Services, the Services or this Agreement.

(c) Econstruct will notify the Customer of any Service Change, which will ordinarily be by email sent to the Customer’s contact person as nominated in the Order Form. A Service Change will take effect on the later of 30 days after the date of the notice or the date of the next renewal of the Subscription Term, or at such later time specified by Econstruct in the notice.

9. Payments

9.1 Fees

(a) The Customer must pay the Fees as follows:

(i) Subscription Fee: payable on the first day of the Subscription Term and on each renewal of the Subscription Term; and

(ii) Professional Services Fees: within 14 days of the date of the invoice.

(b) The Fees shall be paid by the Customer by wire transfer into such bank account as Econstruct may from time to time nominate.

9.2 Review of Fees

(a) Econstruct has the right to review and adjust the Fees from time to time by notice to a Customer, but not during a Subscription Term. Any increase in Fees will take effect on the later of 30 days after the date of the notice or the date of the next renewal of the Subscription Term, or at such later time specified by Econstruct in the notice.

(b) The Customer and Econstruct may from time to time agree to changes to the product configuration of and/or Usage Metric for the SaaS Services, and Econstruct shall notify the Customer of any resulting changes to the Fees.

10. Suspension

10.1 Suspension

(a) Econstruct may suspend the Customer’s (and some or all Users’) access to the SaaS Services if:

(i) Econstruct (acting reasonably) considers that suspension is necessary to avoid or mitigate a risk of loss, harm or damage to the Customer or the Customer Data, to the SaaS Services, or to any of Econstruct’s other customers;

(ii) the Customer is in breach of clause 4.5 of this Agreement; or

(iii) the Customer fails to pay an amount due in accordance with this Agreement and does not rectify that failure:

(A) for the SaaS Services, within 14 days of receipt of a reminder notice from Econstruct; and

(B) for the Professional Services, within 30 days of receipt of a reminder notice from Econstruct.

10.2 Notice of suspension

(a) Econstruct will use reasonable endeavours to:

(i) provide prior notice of any suspension pursuant to clause 10.1; and

(ii) limit any suspension pursuant to clause 10.1 to the extent necessary to avoid or mitigate the relevant loss.

(b) Econstruct will lift any suspension once it is satisfied, acting reasonably, that the basis for the suspension has been remedied.

11. GST and other taxes

The Customer is liable for any duty or tax, including any goods and services tax (GST) (but excluding income tax), payable for any goods or services supplied under this Agreement provided that Econstruct provides the Customer with a tax invoice which complies with GST law. Further, to avoid doubt, any and all income tax and/or superannuation liabilities (and other similar taxes and levies) owed by the Customer to their staff are the sole responsibility of the Customer and the Customer hereby indemnifies Econstruct in respect of any liability arising in connection with such matters.)

12. Warranties

12.1 Econstruct Warranty

Econstruct warrants that:

(a) the SaaS Services will comply with the applicable documentation, specifications or manuals in all material respects; and

(b) it will comply with laws applicable to it.

12.2 No implied terms or representation

The Customer acknowledges and agrees that:

(a) Econstruct provides the SaaS Services and the Services to the Customer subject only to the terms, conditions, representations and warranties expressly contained within this Agreement, and those imposed by law which cannot be excluded. All other terms, conditions and warranties, whether express, implied or imposed, are excluded;

(b) the SaaS Services and the Services have not been specifically designed or tailored for the Customer, and that the Customer responsible for ensuring that the SaaS Services and the Services will meet the Customer’s requirements and will achieve the results that the Customer wishes to achieve from use of the SaaS Services and the Services;

(c) Econstruct does not guarantee that the SaaS Services will always function without disruptions, delays or imperfections; and

(d) the Customer is responsible for ensuring that it has the software, hardware and other systems or infrastructure required to access and use the SaaS Services.

12.3 Warranty Void

The warranty set out in clause 12.1 is void to the extent that failure of or defects in the SaaS Services are caused by:

(a) a breach of this Agreement by the Customer, or the negligence of the Customer, its personnel or any of its Users;

(b) the Customer’s abuse or misapplication of the SaaS Services, including where the Customer has not used the SaaS Services in accordance with the application documentation or specifications;

(d) any additions, amendments, modifications or improvements to the SaaS Services made without the written approval of Econstruct; or

(e) the use of the SaaS Services with any databases, operating systems, software, infrastructure, or hardware other than as approved in writing by Econstruct from time to time.

12.4 Australian Consumer Law

(a) In this clause, Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

(b) Nothing in this Agreement limits, excludes or modifies any terms, warranties or guarantees that are conferred on the Customer under the Australia Consumer Law and which it is unlawful under the Australian Consumer Law to exclude (Non-Excludable Term).

(c) If it is legally permitted to do so, where Econstruct is liable for a breach of any such Non-Excludable Term, then Econstruct limits its liability to the following:

(i) the supplying of the SaaS Services or Services again; or

(ii) the payment of the cost of having the SaaS Services or Services supplied again.

12.5 Customer Warranties

The Customer hereby warrants and undertakes that:

(a) it has full power and authority to enter into, and perform its obligations under, this Agreement;

(b) it will comply with all applicable laws, rules and regulations relating to the SaaS Services and its use by the Customer;

(c) it will remain responsible for the creation, maintenance and control of Customer Data and the uploading of such information via the SaaS Services;

(d) it will ensure that Customer Data does not breach confidentiality, Intellectual Property Rights, applicable laws or any other rights.

13. Liability

13.1 Customer Indemnity

(a) The Customer indemnifies Econstruct against all damages, losses, costs and expenses (including legal costs on an indemnity) suffered or incurred by Econstruct arising out of:

(i) any claim by a third party against Econstruct arising out of Econstruct’s access to, or use or processing of, Customer Data in accordance with this Agreement;

(ii) any material breach by the Customer (or any of its Users) of its obligations under this Agreement (for the purposes of this clause 13.1(a)(ii) a breach of clauses 4.5 and 6 is a material breach of this Agreement); and

(iii) any claim against Econstruct by a User, or by any third party using any logins or credentials assigned to Customer, other than where the claim arises from a breach of this Agreement by Econstruct.

13.2 Limitation and exclusion

(a) Subject to clauses 12.4, and 13.2(b):

(i) neither party will be liable for any Consequential Loss; and

(ii) a party’s total aggregate liability for any and all losses, costs, damages or expenses of any kind arising as a result of or related to:

(A) the SaaS Services, is limited to the Subscription Fees actually paid by the Customer in the 12 month period immediately preceding the date of the claim; and

(B) the Professional Services, is limited to the Charges actually paid by the Customer for Professional Services under the applicable Order Form.

(b) The exclusions and limitations in clauses 13.2 and 13.2(a)(ii) do not apply to limit or exclude:

(i) liability for a party for fraud or fraudulent misrepresentation;

(ii) liability of Econstruct under clause 12.4;

(iii) liability of the Customer for a breach of clause 6;

(iv) the Customer’s liability to pay the Fees;

(v) Econstruct’s liability under clause 14; or

(vi) liability of the Customer under the indemnities in clause 13.1(a).

14. IP infringement

14.1 Third party IP claims against Customer

(a) The Customer shall promptly notify Econstruct in writing of any actual, suspected or anticipated infringement of Econstruct’s Intellectual Property Rights coming to its attention.

(b) If there is an IPR Claim, then provided that the Customer has complied with clause 14.1(c), Econstruct will indemnify the Customer against:

(i) the Customer’s reasonable costs of investigating and defending the IPR Claim;

(ii) a settlement amount approved by Econstruct and paid by the Customer to settle the IPR Claim; and

(iii) any damages finally awarded against the Customer in the IPR Claim.

(i) notify Econstruct promptly on becoming aware of an IPR Claim;

(ii) provide reasonable cooperation to Econstruct (at Econstruct’s expense) in the defence and settlement of the IPR Claim; and

(iii) provided that Econstruct has acknowledged its obligation to indemnity the Customer in accordance with this clause, grant Econstruct control of the defence and settlement of the claim.

(d) If the SaaS Services, or any portion of it is, or in Econstruct’s opinion, are likely to be, claimed to infringe any third party Intellectual Property Rights, Econstruct may, at its option and sole cost and expense:

(i) obtain the right for the Customer and its personnel to continue to use the SaaS Services as contemplated by this Agreement;

(ii) modify or replace the SaaS Services, in whole or in part, to make the SaaS Services non-infringing, while providing materially equivalent features and functionality; or

(iii) by written notice to the Customer, terminate this Agreement, and require the Customer to immediately cease any use of the relevant SaaS Services.

(e) If Econstruct terminates this Agreement under clause 4.5(c)(ii), the Customer will be entitled to a refund of any prepaid charges for any remaining unused portion of the Subscription Term as of the effective date of such termination by Econstruct.

(f) This clause 14 sets out the Customer’s sole and exclusive remedy and Econstruct’s sole liability in connection with an IPR Claim.

15. Termination

15.1 Econstruct Termination Rights

Econstruct may terminate this Agreement immediately by notice to the Customer if:

(a) the Customer breaches any of the restrictions on use or disclosure contained in this Agreement;

(b) the Fees, or any other sum due and payable to Econstruct by the Customer remains outstanding for more than 14 days after service of a notice on the Customer specifying the sum due and requiring payment;

(c) Econstruct has suspended the Customer’s access to the SaaS Services in accordance with clause 10 of this Agreement as a result of a breach of this Agreement by the Customer, and the Customer has not remedied the basis of suspension after 14 days; or

(d) the Customer breaches any provision of this Agreement and fails to rectify such breach within 14 days of being required in writing to do so (but this sub-clause does not apply to breaches referred to in sub-clause 15.1(a)).

15.2 Customer Termination Rights

(a) The Customer may terminate this Agreement for convenience, with such termination to take effect at the end of the then current Subscription Term of this Agreement.

(b) The Customer may terminate this Agreement by notice to Econstruct if Econstruct is in material breach of this Agreement and such breach is not capable of being remedied, or is not capable of being remedied within 30 days of receipt of notice from the Customer requiring it to do so.

15.3 Action on Termination

(a) Immediately upon becoming aware of the termination of this Agreement the Customer must:

(i) delete the SaaS Services (if applicable) from its IT systems or environment;

(ii) destroy all related original and copy documentation, the Intellectual Property Rights in which are owned by Econstruct; and

(iii) remove access to the SaaS Services.

(b) To avoid doubt, upon termination, the Customer shall have no right to any refund of monies paid by it in respect of this Agreement from the date of such termination.

(i) it must export or download the Customer Data before the effective date of termination or expiry of this Agreement;

(ii) Econstruct will have no obligation to maintain or provide any Customer Data stored in the SaaS Services or which is otherwise in Econstruct’s possession or control after the date on which this Agreement terminates or expires, except that where the Customer has terminated this Agreement for cause Econstruct will retain and make the Customer Data available to the Customer for 30 days from the effective date of termination; and

(iii) Econstruct may delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, after a reasonable period of time.

15.4 Without Prejudice

Termination of this Agreement is without prejudice to any rights or claims of the parties against each other pursuant to this Agreement up to the date of termination.

15.5 Survival

The rights and obligations contained in clauses 6, 12, 13, 14 and 17 of this Agreement, and any other terms that by their nature are intended to survive termination or expiration of this Agreement, will survive termination or expiration of this Agreement.

16. Force majeure

16.1 Neither party shall be liable in respect of any breach of this Agreement due to any cause beyond its reasonable control including but not limited to act of god, inclement weather, flood or escape of water, lightning or fire, industrial action, or lockouts, the act or omission of Government, any Regulatory Body or other competent authority, war, military operations, or riot, or congestion or non-operation of the public networks, and failures of telecommunication providers or internet service providers, failure of third party suppliers, service providers, or vendors (Force Majeure Event).

16.2 If a Force Majeure Event arises:

(a) the party that is wholly or partially unable to, or otherwise fails to perform its obligations by the Force Majeure Event (Affected Party), must promptly after the Force Majeure Event arises, notify the other party of the extent to which the Affected Party is unable to perform its obligations; and

(b) the Affected Party must use its best endeavours to mitigate the effect of the Force Majeure Event.

16.3 The Customer hereby agrees that any inability by it to use the SaaS Services or provide the resultant documentation or materials to the Customer’s personnel or to any third parties as a result of a Force Majeure Event shall not relieve the Customer from payment of Fees due and payable to Econstruct.

17. Dispute resolution

17.1 The parties shall, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any court proceedings.

17.2 If a party requires resolution of a dispute it shall do so in accordance with the provisions of this clause and compliance with these provisions is a condition precedent to any entitlement to claim relief or remedy whether by way of proceedings in a court of law or otherwise in respect of such disputes, but nothing contained herein prevents or precludes a party from applying at any time to a court for interim injunctive relief.

17.3 If a party requires resolution of a dispute it shall immediately submit full details of the dispute to the chief executive officer of the other party.

17.4 If the dispute is not resolved through negotiation between the parties either party may submit the dispute for mediation in accordance with and subject to the Australian Disputes Centre’s Guidelines for Commercial Mediation.

17.5 If after a period of 42 days from the commencement of the mediation, the parties have not been able to resolve or agree on a process to resolve the dispute, at the written request of either party the dispute will be submitted for arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators Australia or other similar commercial arbitration organisation and generally in accordance with the Commercial Arbitrations Act 2010 (NSW).

17.6 The arbitration will be conducted in Sydney, Australia by the Australian Disputes Centre. Each party shall be entitled to representation at such arbitration by duly qualified legal practitioners.

17.7 The finding of the arbitrator is final and binding on the parties and no appeal lies therefrom.

17.8 Until a dispute is resolved, whether by agreement between the parties or by arbitration, the parties are obliged to perform their obligations under this Agreement.

18. General

18.1 This Agreement supersedes, revokes and replaces all and any prior representations, promises, conditions, understandings and agreements concerning the subject matter of this Agreement and may only be altered or amended by an instrument in writing executed by both parties.

18.2 Each provision of this Agreement is severable and in the event that any provision is declared invalid or unenforceable for any reason then each and every other provision remains in full force and effect.

18.3 Any notice, demand or other document under or relating to this Agreement (Notice) must be in writing is deemed sufficiently served if:

(a) delivered personally or prepaid ordinary mail addressed to the party to be served at the address of such party specified in this Agreement;

(b) sent by email to the email addresses specified in the Order Form; or

(c) delivered at such other address that may from time to time be notified in writing, and such Notice is deemed to be delivered

(d) at the time of delivery;

(e) if sent by email, an hour after the time the sender’s information system recorded that email left the sender’s information system unless within one business day after that time, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient; or

(f) if service is effected in any other manner set out above, at the time when it would in the ordinary course be delivered,

18.4 This Agreement is governed and construed in accordance with the laws in force in New South Wales and the parties hereby agree to submit to the non-exclusive jurisdiction of the Courts of that State.

18.5 A party’s failure or delay in exercising a power, right or remedy pursuant to this Agreement is not a waiver of that power, right or remedy and any waiver of one power, right or remedy is not a waiver of any other powers, rights or remedies or any subsequent breach. No waiver is effective unless it is in writing and executed by a person authorised by the party making the waiver to do so.

18.6 The Customer must not assign, transfer or charge in any way this Agreement or its rights hereunder or any part thereof other than to a subsidiary or related body corporate of the Customer without the prior written consent of Econstruct, which may be granted or withheld by Econstruct in its absolute discretion.

Schedule 1 Professional Services Terms

1 Professional Services

(a) Econstruct must perform the Professional Services, and the Customer must perform its associated responsibilities, tasks, and dependencies, specified in the applicable Order Form.

(b) Econstruct will perform the Professional Services with due care and skill.
(c) The Customer must provide Econstruct with all reasonable and necessary assistance so as to facilitate the performance of the Professional Services.
(d) All emails in relation to the Professional Services are to be sent to: [email protected] (or such other email address specified by Econstruct from time to time) for processing by Econstruct.

2 Delay

(a) Each party must use its reasonable endeavours to avoid any delays in the performance of the Professional Services (a Delay), and notify the other party on becoming aware of any actual or potential Delay.

(b) If a Delay is caused by:

(i) the Customer failing to perform an obligation under this Agreement by the due date;

(ii) Econstruct exercising its rights under clause 11 of this Agreement;

(iii) any of the assumptions specified in the Agreement including any Order Form (or any other order documents) being inaccurate or incorrect or any Customer dependency specified in an Order Form (or any other order document) not being met; or

(iv) a Force Majeure Event, then the due dates for the performance of the Professional Services will be automatically extended by a period equal to the length of that Delay.

(c) If section 2(b) of this Schedule applies other than because of a Force Majeure Event, Econstruct may give the Customer an invoice for, and the Customer must pay, all costs and expenses that Econstruct suffers or incurs relating to that delay to the extent that Econstruct is not otherwise able to recover those amounts under this Agreement.

3 Developed IP

(a) Econstruct will own all Intellectual Property Rights developed by any person in connection with the Professional Services, except that the Customer will own any enhancements of the Customer’s pre-existing Intellectual Property Rights developed by any person in connection with the Professional Services.

(b) The Customer grants Econstruct and its personnel a licence to access, use, modify, adapt and create derivative works of any of the Customer’s pre-existing Intellectual Property Rights to the extent necessary for Econstruct to perform its obligations under this Agreement.

4 Reliance and representations

Any reports, advice or opinions, communications or other materials provided to the Customer by Econstruct whether written or oral in supplying the Professional Services:

(a) are provided solely for the use of the Customer in connection with this Agreement; and

(b) may not be disclosed 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 Customer Information

The Customer acknowledges and agrees that:

(a) the deliverables it supplies as part of, or as an output of, the Professional Services (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 are 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 Professional Services. Accordingly, the Customer should therefore verify the Deliverables and ensure they meet its requirements prior to relying on them for its business purposes; and

(e) 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.

Schedule 2 Support services

1 Support Services

1.1 Econstruct will provide the following Support Services in respect of the operation and use of the SaaS Services:

(i) Online guides and manuals;

(ii) Email support service; and

(iii) Discretionary face to face support service.

1.2 Econstruct shall provide links and other materials required to ensure the Customer can access and use the relevant online guides and manuals required in respect of the usage and operation of the SaaS Services.

1.3 Econstruct’s support email service is responsible for receiving support emails from Customers about the SaaS Services and ensuring that these emails are responded to and/or resolved in a timely manner.

1.4 Additionally, Econstruct, at its discretion may provide a direct staff support contact to assist with support issues the Customer may have in accordance with this Agreement.

1.5 All support emails are to be sent to:.

(i) [email protected], for support emails relating to the PX360 product; and

(ii) [email protected] for support emails relating to all other products and services,

(or such other email address specified by Econstruct from time to time) for processing by Econstruct.

1.6 Econstruct will provide a response in respect of the Customer’s support email which will advise on Econstruct’s support response time frames, fixes and or other available options to resolve the requisite problem.

1.7 Econstruct will accept support emails for the SaaS Services, and emails in relation to the Services where the Customer is up to date in their payment of the Fees.

1.8 The Customer must:

(a) when logging a support email, provide the following information with regard to the problem:

(i) all error messages that were displayed in regards to the problem including message numbers and text;

(ii) in what form/panel/screen/program/process the problem occurred; and

(iii) contact information for response including e-mail address;

(iv) relevant company and project number(s); and

(vi) screenshots (if applicable) relating to the problem

(b) provide internet terminal access either through “TeamViewer” or similar remote terminal access software, or through such other means required by Econstruct, in respect of problems related to login/application or other issues derived outside of the App or SaaS Services;

(c) provide App or SaaS Services remote access in respect of problems or other issues derived inside of the App or SaaS Services;

(d) check e-mail on a regular basis for responses;

(e) ensure that documentation is distributed and read by appropriate personnel prior to the loading of a new release.

1.9 Nothing in this Agreement requires or obliges Econstruct to:

(a) correct errors or defects caused by operation of the SaaS Services in a manner other than that specified by Econstruct (including in any applicable documentation);

(b) correct errors or defects caused by modification, revision, variation, translation or alteration of the SaaS Services not authorised by Econstruct;

(d) correct errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the SaaS Services;

(e) train operating or programming staff;

(f) rectify user errors;

(g) rectify errors caused by incorrect use of the SaaS Services;

(h) rectify errors caused by a fault in the Customer’s hardware;

(i) diagnosis or rectify of faults not associated with the SaaS Services (including faults arising out of or in connection with the Ancillary Software);

(j) supply or maintain accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Econstruct; or

(k) correct errors arising directly or indirectly out of the Customer’s failure to comply with this Agreement or any other agreement between the parties relating to the SaaS Services.