Home > Terms and conditions

Performl Platform Service Agreement

Performl Pty Ltd

ABN 12 651 425 768

Version effective from 10 June 2022

1. Your acceptance

1.1 Welcome to www.performl.com.au and thanks for taking the time to read our Platform Service Agreement. It is important that you understand your rights and responsibilities, so please keep reading.

1.2 Performl is turning billions of data points about people’s unmet support needs into meaningful answers. Customers self-service answers to important business questions using our subscription technology platform, public information, and field data we collect. Our social researchers, data scientists and software engineers are constantly expanding and updating the platform. Performl’s mission is to help those responsible for addressing people’s unmet support needs make better decisions quicker and cheaper. We do this by connecting government, philanthropy, sector leaders, social services and their advisors and analysts with the best information and ideas.

1.3 This Platform Service Agreement, the Platform Service Order Form(s) and any other Performl policies posted on the Platform, each of which may be modified from time-time-time (together, the Agreement), including all future amendments or modifications, form a contract between you and Performl. This Agreement governs your subscription to, and use of, Performl’s website, online service, software-as-a-service offering(s) provided to you and/or other related applications or services identified in the Platform Service Order Form(s), including any updates thereto, as may be available online or via mobile application (together, the Platform).

1.4 As the Customer, you agree to be bound by this Agreement and to the collection and use of your information as set forth in the Agreement by signing the Platform Service Order Form(s) that references this Agreement (and you expressly agree and consent to using electronic signatures to execute this Agreement), or by using the Platform, whichever occurs first. This Agreement applies to all users who access the Platform.

1.5 You may use the Platform only if you can form a binding contract with Performl, and only in compliance with this Agreement and all applicable laws and regulations.

1.6 The Platform may not be available to anyone previously removed from the Platform by Performl. By using the Platform, you represent and warrant that you have the full right, power and authority to enter into this Agreement and to fully perform all of your obligations hereunder. You further represent and warrant that you are under no legal impairment or contractual restriction that prevents you from entering into this Agreement.

2 Definitions and Interpretation

2.1 Definitions. In this Agreement, a reference to:

(a) Agreement has the meaning given in clause 1.3;

(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(c) Authorised Datasets means the third-party datasets described as an “Authorised Dataset” in each Platform Service Order Form signed by the parties or otherwise agreed by the parties in writing as being an “Authorised Dataset”;

(d) Authorised Dataset Licenses means the terms of the licences or equivalent document or instrument under which the Customer may access, use, store, adapt and/or otherwise create derivative works of the Authorised Datasets;

(e) Business Day means a day other than a Saturday, Sunday or public holiday in Sydney, Australia;

(f) Corporations Act means the Corporations Act 2001 (Cth);

(g) the Customer, you or your means the entity or person indicated in the relevant section of the Platform Service Order Form(s);

(h) Customer Generated Material means any materials (including reports, insights, or other analysis) generated or created by the Customer through the Platform;

(i) Customer Material means any content or data that you or your users submit or transfer to Performl using the Platform (including personal information). This includes data, templates, information, content, or material provided by the Customer to Performl or submitted to the Platform by the Customer or users in the course of using the Platform. Customer Material may be Disclosable Customer Material or Private Customer Material. To avoid doubt, Authorised Datasets, Customer Feedback and Customer Generated Material do not constitute Customer Material;

(j) Customer Feedback means: (i) comments the Customer posts in the feedback areas of the Platform; (ii) chats or other material or content the Customer posts or submits in any forums or other shared areas of the Platform; and (iii) any other feedback or suggestions provided by the Customer about the Platform itself, Performl or content on the Platform;

(k) Disclosable Customer Material means Customer Material owned by or licenced to the Customer submitted by the Customer to the Platform which the Customer expressly identifies (via the Platform or in writing) as being Customer Material which may be shared with or disclosed to third-parties (including other customers) subject to and in accordance with this Agreement;

(l) Intellectual Property Rights means any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trademarks, service marks, logos, domain names, good will, software, text, graphics, images, photographs, audio, video and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property rights.

(m) Limited Agent has the meaning given in your Platform Service Order Form(s) and Limited Agency has a corresponding meaning;

(n) Login means a username and password assigned to an individual user for purposes of accessing the Platform;

(o) Performl, we, us or our means Performl Pty Ltd (ABN 12 651 425 768);

(p) Personnel means a party’s related companies, and the party and its related companies’ employees, independent contractors, vendors, agents, users and/or permitted subcontractors;

(q) Platform has the meaning given in clause 1.3;

(r) Platform Improvement means work carried out by Performl to improve the Platform, including work in respect of benchmarking, text analytics, linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality and similar or analogous activities;

(s) Platform Service Order Form means Performl’s standard Platform Service Order Form(s) that: (i) specifies the Platform subscribed to by the Customer; (ii) specifies the number of Users, Subscription Fees, and Subscription Term; (iii) is governed by and incorporates by reference this Agreement; and (iv) is signed by authorised representatives of both parties;

(t) Private Customer Material means Customer Material owned by or licenced to the Customer submitted to the Platform by the Customer for the purpose of using the Platform or carrying out the Customer’s private business purposes or operations which the Customer expressly identifies as being private and confidential (via the Platform) and which must remain confidential subject to and in accordance with this Agreement;

(u) Renewal Term has the meaning given in clause 9.2;

(v) Subscription Fee means the recurring fee paid for access to the Platform as set forth in one or more Platform Service Order Form(s);

(w) Subscription Term means the duration for which the Customer has subscribed to the Platform as set forth in the applicable Platform Service Order Form(s);

(x) Third-Party Services means any applications, products, and services not provided by Performl that are used by the Customer in conjunction with the Platform; and

(y) Users means any person or entity to whom you provide access to our Platform, including any administrators or managers of your account, as well as visitors, contributors and others to whom you allow access to our Platform. Users include an individual who is authorised by the Customer to use the Platform, for whom a subscription to the Platform has been purchased, and who has a Login. Users may include the Customer’s employees, contractors, or agents.

2.2 Interpretation. Headings are for convenience only and do not affect interpretation. In this Agreement, unless the context otherwise requires:

(a) The singular includes the plural and vice versa.

(b) A reference to a person includes a reference to a body corporate, a government organisation, body or instrumentality, an unincorporated body and any other entity.

(c) A reference to this Agreement includes a reference to any variation, replacement or novation of it.

(d) A reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it.

(e) A reference to a thing includes a reference to any part of that thing.

(f) A reference to any party to this Agreement where relevant includes a reference to the party’s successors and permitted assigns.

(g) Where a word or phrase is defined, its other grammatical terms have corresponding meanings.

(h) A reference to conduct includes a reference to any omission, statement or undertaking, whether or not in writing.

(i) A word or phrase appearing in a certain context which, when used in a similar context in the Corporations Act would have a particular meaning, has that meaning in this Agreement.

(j) A reference to month is a reference to a calendar month.

(k) A reference to writing includes communication by electronic mail.

3 Platform Services

3.1 Service Provision. Subject to the terms and conditions of this Agreement, Performl will provide you with access to and use of the Platform ordered by you as described in the Platform Service Order Form(s) for the duration of the Subscription Term and any Renewal Term(s). You may order additional services by contacting Performl and we will invoice you for any additional services you order after the start of the Subscription Term at the time those additional Platform services are ordered.

3.2 Service Changes. We continually change and improve our Platform. Performl may, at its sole discretion, modify, remove, add, or enhance features and the user interaction of the Platform at any time without prior notice. We will endeavour to provide you with prior notice if we make a change to the Platform resulting in an overall material decrease in functionality of the Platform.

3.3 Service Suspension. We may limit or suspend the Platform from time-to-time at our sole discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If Performl limits or suspends the Platform, we will endeavour to give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action. Performl may also at its discretion, and in addition to other remedies, suspend your access to the Platform if any invoice remains unpaid for more than thirty (30) days.

3.4 Third-Party Services. If you elect to use the Platform in conjunction with Third-Party Services, you acknowledge that the Third-Party Service may access or use your Customer Material. Performl will not be responsible for any act or omission of the Third-Party Service, including if such Third-Party Services’ access to your Customer Material. Your use of Third-Party Services is subject to the terms and conditions applicable to such Third-Party Services and Performl makes no representations or warranties in relation to such Third-Party Services. Performl does not endorse or assume any responsibility for any Third-Party Services, site information, materials or products. If you access Third-Party Services, you do so at your own risk and understand that this Agreement does not apply to their use. You should contact the Third-Party Service for any issues arising from your use of the Third-Party Service.

4 Payment

4.1 Fees and Payment Terms. You shall pay all fees set forth in your Platform Service Order Form(s). Subscription Fees will be invoiced monthly and payable one (1) month in advance on a recurring, periodic basis for the duration of the Subscription Term (and any Renewal Term(s)) set forth in your Platform Service Order Form(s). Except as indicated in this Agreement or required by law (including the Australian Consumer Law), all fees paid by you are non-refundable. Unless explicitly stated otherwise, all fees and all references to “dollars” or “$” are to Australian Dollars. You authorise us to charge or debit your nominated payment method (as specified on your Platform Service Order Form(s)) or other payment method as agreed in writing between the parties from time to time.

4.2 Price Changes. Performl may amend fees and charges for existing Platform services, at any time in its sole discretion. We will provide you with thirty (30) days’ notice in writing before implementing amendments to any Platform fees and charges.

4.3 User Increases. In the event your usage of the Platform exceeds the number of users identified in the applicable Platform Service Order Form(s), your users will be increased and Performl will invoice you based on the then-current per-unit Subscription Fee (or as otherwise set forth in Platform Service Order Form), prorated for the remainder of the then-current Subscription Term or Renewal Term (as applicable). Any increase in the users shall be effective for the remainder of the then-current Subscription Term (or Renewal Term, as applicable).

4.4 Interest. Any fees remaining unpaid for more than thirty (30) days past their due date shall accrue interest at a rate of the lesser of 5% per month or the highest rate allowed by law. You will be responsible for all reasonable expenses including legal fees incurred by Performl in collecting such overdue amounts.

4.5 GST. Despite the definition of consideration in the GST law, and unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST. If a party makes a taxable supply under or in connection with this Agreement (the Supplier), the other party must pay to the Supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply. The Supplier must, as a precondition to the payment of GST, give the other party a tax invoice. If an adjustment event arises in connection with a supply made under this Agreement, the Supplier must give the other party an adjustment note in accordance with the GST law. If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.

5 Confidentiality

5.1 Definition. In this Agreement, Confidential Information means, without limitation, any confidential or proprietary information, product plans, inventions, technical data, trade secrets, know-how, the terms of this Agreement or other business information, in each case disclosed or made available by a party (the Discloser) to the other party (the Recipient) whether orally or in writing hereunder. To avoid doubt, and subject at all times to clauses 6.2 and 6.3:

(a) Private Customer Material and Customer Generated Material are both Confidential Information of the Customer;

(b) Disclosable Customer Material is not Confidential Information of either party; and

(c) Customer Feedback is Confidential Information of Performl.

5.2 Non-Use and Non-Disclosure. The Recipient shall, with respect to Confidential Information of the Discloser:

(a) not disclose such Confidential Information to any third-party at any time, and limit disclosure to its employees, prospective investors and financiers, contractors or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by confidentiality obligations that are at least as restrictive as the terms of this Agreement; and

(b) protect the confidentiality of the Confidential Information with at least the same degree of care as the Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care.

5.3 Exclusions. The obligations with respect to Confidential Information shall not apply with respect to Confidential Information the Recipient can demonstrate:

(a) use or disclosure of the Confidential Information was for the purpose of performing obligations (in Performl’s case, including in making the Platform available and functional to the Customer) or exercising rights under this Agreement;

(b) is now or becomes publicly available through no fault of the Recipient;

(c) is lawfully obtained from a third-party without a duty of confidentiality;

(d) is known to the Recipient without obligation of confidentiality prior to such disclosure.

5.4 Compelled Disclosure. Notwithstanding the foregoing, the Recipient may disclose Confidential Information solely to the extent necessary to comply with a court order, a compulsory notice requiring the production of information or documents issued by a regulator, a requirement of any applicable securities exchange or as otherwise required by law or a government body, but only after, if permitted by law, the Recipient:

(a) uses commercially reasonable efforts to notify the Discloser in writing;

(b) gives the Discloser the opportunity to challenge the requirement to disclose; and

(c) cooperates with the Discloser if the Discloser seeks an appropriate protective order.

5.5 Non-Disclosure Agreements. The provisions of this clause 5 (Confidentiality) will supersede any non-disclosure agreement between Performl and the Customer and such agreement will have no further force or effect.

6 Intellectual Property

6.1 Customer Intellectual Property Rights. You represent and warrant to Performl that either you own all Intellectual Property Rights to Customer Material or that you have secured all the necessary Intellectual Property Rights and other licences as may be necessary to permit access, use and distribution of Customer Material and other material as contemplated by this Agreement without infringing any person’s Intellectual Property Rights. As part of your use of the Platform, you or your users may upload or access materials and in doing so you must ensure that you do not infringe the Intellectual Property Rights of others, commit any unlawful activity and that you comply with any additional license rights and restrictions associated with accessing the material. You may create Customer Generated Material on the Platform incorporating Customer Material and any other material you have the right to use and the Platform is made available to you and your users solely for your internal purposes and operations. While ownership of the Customer Generated Material vests in the Customer upon creation (subject to the terms of this Agreement, in particular in respect of Customer Generated Materials incorporating Authorised Datasets), you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, or services obtained from the Platform. Your access and use of the Platform is strictly limited, non-exclusive, non-transferable, non-assignable and non-sublicensable. You must not upload (or authorise us or appoint us as Limited Agent for the purposes of uploading) to the Platform any Customer Material or Authorised Datasets or create on the Platform any Customer Generated Materials which would violate any person’s Intellectual Property Rights or violate clause 8 (Customer Obligations). You retain all ownership and Intellectual Property Rights to Customer Material. Performl does not claim ownership over any Customer Material. This Agreement does not grant us any licenses or rights to Customer Material except for the licenses granted in clause 6.2 and clause 6.3, or as otherwise required for us to provide the Platform to you, your users and other customers.

6.2 License for the Platform. For the Subscription Term and any Renewal Term(s), you grant Performl a royalty-free, worldwide and non-exclusive right and license to display, host, copy, use, reproduce, create derivative works, archive or otherwise use Customer Material submitted and created by you to the Platform and for the purposes of your use of the Platform to create Customer Generated Materials, but only to the extent permitted by applicable law and the other protections provided to the Customer under this Agreement (including clause 5) in respect of Customer Material.

6.3 De-Identified Data. You grant Performl a royalty-free, worldwide and non-exclusive right and license to display, host, copy, use, reproduce, create derivative works, market, sublicense, sell, archive or otherwise use Disclosable Customer Material and Customer Generated Materials for the purposes of Platform Improvement and creating de-identified and/or aggregated data including for commercial purposes to the extent permitted by applicable law and any applicable licences (De-Identified Data). De-Identified Data may be made publicly available (including for commercial purposes) and may be used after termination of this Agreement provided that such De-Identified Data cannot directly or indirectly identify the Customer or its users. Performl is not required to attribute ownership of De-Identified Data in connection with the rights granted to Performl under this clause 6.3. To avoid doubt, the rights in this clause do not apply to Private Customer Material.

6.4 Customer Data Review. You acknowledge that, in order to ensure compliance with legal obligations, Performl may be required to review certain content submitted to the Platform to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also prevent access to or refuse to display content that we reasonably believe violates the law or this Agreement. However, Performl otherwise has no obligations to monitor or review any content submitted to the Platform by you or any other person.

6.5 Customer Feedback. If you provide us with any Customer Feedback associated with the Platform, Performl may use that Customer Feedback without any obligation to you. You hereby assign to Performl all ownership and moral rights to any Customer Feedback or other suggestions, ideas, enhancement requests or other feedback provided by the you to Performl relating to the Platform. Performl may invite you to submit comments or ideas about the Platform including without limitation about how to improve the Platform or our products (Ideas). By submitting any Idea, you agree that the disclosure is gratuitous, unsolicited and without restriction and will not place Performl under any fiduciary or other obligation, and that Performl is free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You will take any steps we reasonable request of you to perfect the assignments described in this clause.

6.6 Publicity and Customer Lists. You permit Performl to use your name and logo to identify you as a customer on Performl’s website and in its marketing materials in accordance with any trademark guidelines or instructions provided by you. Performl may identify you by name and logo as a Performl customer in promotional materials or during promotional events. You permit Performl to issue a press release announcing you as a customer. Performl agrees to obtain your approval of the text of any such press release prior to publication and you agree that such approval will not be unreasonably withheld or delayed. Following an agreed-upon press release, Performl may use the content of the press release on Performl’s website and in marketing materials. If you do not want your name and/or logo to be used in this way, please contact us.

6.7 Performl Intellectual Property Rights. Except as expressly set out in this Agreement, all Intellectual Property Rights in and to the Platform and all materials within the Platform, are the exclusive and sole property of Performl and its licensors. Performl owns all content, data, software, inventions, ideas and other technology and intellectual property that it develops in connection with its products and the Platform. Nothing in this Agreement creates for you a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publish, adapt, edit or create derivative works from any Performl content. Use of Performl content for any purpose not expressly permitted by this Agreement is strictly prohibited.

6.8 Platform Sub-Processors. You agree that Performl and the Third-Party Service providers that are used by Performl to assist in providing the Platform to you have the right to access your account and to use, modify, reproduce, distribute and disclose Customer Materials to the extent necessary to provide or improve the Platform, including, without limitation, in response to you or your users’ support requests. Any Third-Party Service providers used by Performl will only be given access to your account and Customer Material as is reasonably necessary to provide the Platform to you.

6.9 Limited Agency. If you have appointed Performl as Limited Agent under any Platform Service Order Form(s), then you:

(a) represent and warrant that:

(i) you have the power, authority and capacity to appoint Performl as Limited Agent in accordance with the terms of such appointment as set out in the applicable Platform Order Service Form(s) and as otherwise contemplated by this Agreement; and (ii) you hold all rights and entitlements set out in the applicable Platform Order Service Form(s) in relation to the Authorised Dataset Licences such that you may appoint an agent to exercise those rights and entitlements on your behalf; (iii) the terms and conditions of the Authorised Dataset Licences do not prevent: (A) persons other than your employees, directors and officers from accessing or using the relevant Authorised Datasets; (B) you from appointing third-parties or agents to assist you in your authorised use of the Authorised Datasets; (iv) you only intend to use the Authorised Datasets and any Customer Generated Materials incorporating the Authorised Datasets for such uses and purposes as are expressly permitted by the relevant Authorised Dataset Licence; and (v) your use of the Authorised Datasets otherwise complies (and will comply) with the terms and conditions of the Authorised Dataset Licences and this Agreement; and

(b) undertake to use the Authorised Datasets and any Customer Generated Materials to the extent that they include, rely on, or are in any way derived from, the Authorised Datasets, solely for such uses and purposes as are expressly permitted by the relevant Authorised Dataset Licence.

7 Account Management

7.1 Account Security and Access. The Performl account gives you access to the services and functionality that Performl may establish and maintain from time-to-time and in our sole discretion. Performl may maintain different types of accounts for different types of customers. If a Customer opens a Performl account on behalf of a company, organisation, or other entity, then:

(a) “you” includes the Customer and that entity, and

(b) the Customer represents and warrants they are an authorised representative of the entity with the authority to bind the entity to this Agreement, and that the Customer agrees to this Agreement on the entity’s behalf. By connecting to Performl with a Third-Party Service, you give Performl permission to access and use your information from that service as permitted by that service, and to store your login credentials for that service.

You may never use another Customer’s account without permission. When creating an account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and the Customer must keep the Login and other access credentials secure. Performl encourages you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with the account. You may not allow any other party to access or use the Platform with your Login. You must notify Performl immediately of any breach of security or unauthorised use of the account. Performl will not be liable for any losses caused by any unauthorised use of your account.

By providing Performl an email address, you consent to our using the email address to send you Platform-related notices, including any notices required by law, in lieu of communication by postal mail. Performl may also use the email address to send other messages, such as changes to features of the Platform and special offers. If you do not want to receive such email messages, then you can request to opt out by selecting the “Unsubscribe” option where available at the bottom of an email message from us or by contacting us at hello@performl.com.au. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers about the Platform.

Performl usernames are provided on a first-come, first-served basis and may not be offered for sale, sold, bought, solicited, or inactively held for future use. Inactive accounts may be renamed at any time without notification.

Certain portions of the Platform may allow you to create or contribute to group accounts (Team). Access to a Team will be made available only to those who are authorised by the creator or controller of the Team (Team Owner). The Team Owner will be responsible for adding user to the Team, for managing permissions for authorised users, and for otherwise managing the account as set forth in this Agreement.

The Team Owner may contact Performl to assign a new Team Owner and will have access to the activity within the Team. Performl will act on the directions of the Team Owner with respect to any re-assignment of ownership and the deletion and retention of Customer Material within the Team. Ownership of any Customer Material created within the Team may be re-assigned to the Team Owner at the request of the Team Owner. It is the Customer’s responsibility to ensure that any information you want to continue to own or keep confidential is stored in a separate account and Performl will not be liable for any access the Team has to such Customer Material.

7.2 Customer Systems. You are responsible for providing, maintaining, and updating all hardware, software, operating systems, internet browsers, anti-virus software, networking and communications capabilities necessary for your access to the Platform.

8 Customer Obligations

8.1 Legal Compliance. You must use the Platform in compliance with, and only as permitted by any applicable laws. You are solely responsible for the accuracy, quality, integrity and legality of Customer Material and Authorised Datasets and of the means by which you acquired Customer Material or the Authorised Datasets. If your use of the Platform requires you to comply with industry-specific laws or regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Platform in a way that would subject Performl to any industry-specific laws or regulations. You acknowledge and agree that we are not responsible for any liabilities arising from your breach of this clause.

8.2 Unacceptable Conduct. You are responsible for your conduct and the conduct of your users and you must ensure that you and your users do not:

(a) copy, distribute, disclose or reproduce any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;

(b) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Platform or any of the software used to provide the Platform, or attempt to do so;

(c) use any automated system, including without limitation “robots”, “spiders” or “offline readers” to access the Platform in a manner that sends more request messages to the Performl servers than a human can reasonably produce in the same period of time by using a conventional online web browser;

(d) take any action that imposes, or may impose an unreasonable or disproportionately large load on our infrastructure;

(e) engage in abusive or excessive use of the Platform, which is usage significantly more than average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Platform for other customers and their users. Performl will endeavour to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Performl;

(f) transmit spam, chain letters, or other unsolicited email, or use the Platform for any commercial solicitation purposes;

(g) transmit or upload any viruses, malware, invalid data, worms, time bombs, trojan horses or other malicious software (or links to such software), code, instructions, files, scripts, agents or programs through the Platform;

(h) probe, scan or test the vulnerability of any Performl system, without Performl’s authorisation;

(i) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform;

(j) misuse the Platform by interfering with the proper working and normal operation or the Platform, or attempting to access the Platform using a method other than through the interfaces and instruction we provide;

(k) access any content on the Platform through any technology or means other than those provided or authorised by the Platform;

(l) directly or indirectly identify a user contrary to the terms of this Agreement or the Privacy Policy, or attempt to do so;

(m) collect or harvest any personally identifiable information, including account names, from the Platform;

(n) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity, including engaging in phishing activity or including misleading links or information to entice viewers to click through to an illegal or fraudulent website;

(o) bypass the measures we may use to prevent or restrict access to the Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Platform or the content therein;

(p) circumvent or attempt to circumvent any limitations or license, timing or use restrictions that Performl imposes on your account (such as any user limits in a Platform Service Order Form) or that are built into the Platform;

(q) use the Platform to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;

(r) rent, lease, sell, distribute, offer in service bureau, sublicense or otherwise make available the Platform to any third-party other than users; or copy, replicate, decompile, reverse-engineer, attempt to derive the source code of, modify, or create derivative works of the Platform, or any part thereof; or access the Platform for the purposes of building or marketing a competitive product;

(s) use any Performl content, including any Performl trademarks, in any manner that might tarnish, disparage, or reflect adversely on Performl;

(t) adopt or use, without our prior written consent, any word or mark which is similar to or likely to be confused with Performl trademarks;

(u) copy, imitate or use, in whole or in part, the look and feel of the Platform, including but not limited to all page headers, custom graphics, button icons, and scripts, without the prior written consent of Performl;

(v) upload any content that is illegal, sexual or pornographic, features child exploitation material or links to such material; or

(w) use the Platform to defame, threaten or discriminate against others, especially when based on race, religion, sex, sexual orientation, age, disability, ancestry or national origin; or use the Platform or any content in a manner which would or would likely support, incite or promote such discrimination, harassment, hostility, violence or any illegal behaviour.

8.3 Users. You must:

(a) ensure that your users comply with this Agreement, as applicable;

(b) obtain any consents required from each user to allow you and the administrators or managers of your account to engage in the activities contemplated by this Agreement, as required by applicable law;

(c) obtain any consent required from each user to allow Performl to provide the Platform, as required by any applicable law;

(d) not provide any person under the age of 18 with access to the Platform. You are responsible for all activities conducted by each user and each user’s compliance with the terms of this Agreement.

8.4 Suspension of Users. Without limiting the other rights and remedies available to Performl under this Agreement or otherwise, if a user breaches this Agreement or uses the Platform in a manner that Performl reasonably believes may cause Performl liability or disrupt others’ use of the Platform, then Performl may request that you suspend or close the applicable user account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Performl may suspend or close the applicable user account.

9 Term and termination

9.1 Agreement Term. The term of this Agreement shall commence and is effective on the earliest of:

(a) the date you sign the applicable Platform Service Order Form(s);

(b) first use the Platform; or

(c) the commencement of the Subscription Term;

and shall continue in full force and effect until the expiration of the Subscription Term specified in the Platform Services Order Form(s), unless otherwise terminated earlier as provided hereunder. To avoid doubt, the term of this Agreement continues during any Renewal Term.

9.2 Subscription Term. The initial Subscription Term shall be specified in the relevant Platform Service Order Form(s). Upon the expiration of the initial Subscription Term, the Subscription Term will automatically renew for successive twelve (12) month terms (Renewal Term), unless either party provides the other party with written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Term. The initial Subscription Term and any Renewal Term are collectively the “Subscription Term”. To avoid doubt, automatic renewals do not guarantee that the price paid for the Platform during the previous Subscription Term will remain the same for the next Subscription Term. Without prejudice to Performl’s rights under clause 4.2, Performl will notify you in writing no later than forty (40) days before the end of the initial Subscription Term or then current Renewal Term of any changes to the fees and charges applicable for the next Renewal Term.

9.3 Termination without Cause. Performl may terminate this Agreement for any reason by providing at least thirty (30) days’ prior written notice to you and will refund a prorated portion of prepaid amounts for the terminated portion of the Subscription Term or Renewal Term (as applicable).

9.4 Termination for Cause. Either party may terminate the Agreement immediately upon written notice in the event:

(a) the other party commits a non-remediable material breach of the Agreement and the other party fails to cure any remediable material breach within ten (10) days of being notified in writing of such breach;

(b) the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to control of an administrator, receiver, liquidator or similar authority, becomes subject to any bankruptcy or insolvency proceeding, or ceases its business operations. Performl may terminate this Agreement if any payment owed by you to Performl is ten (10) days overdue.

9.5 Termination due to Platform Price Amendment. The Customer may terminate the Agreement without further liability by providing thirty (30) days prior written notice where Performl exercises the right to increase Platform fees or charges under clause 4.2.

9.6 Data Exports. The Platform may include functionality that enables you to export Customer Material and Customer Generated Materials. If the foregoing functionality is not operational, we may assist you to export Customer Material and Customer Generated Materials existing in your account at the time of termination, provided you make such request before the end of the Subscription Term or Renewal Term (as applicable). However, we do not guarantee Customer Material and Customer Generated Materials will be able to be transferred to you.

9.7 Return of Confidential Information. The Customer must return all Confidential Information of Performl within 10 days of the date of termination or expiry of this Agreement.

9.8 Survival. Clauses 1, 2, 5, 6, 9, 10, 11.2, 12, 13, 14, 15 and 16 inclusive, shall survive any termination or expiry of this Agreement.

10 Privacy and Data Protection

10.1 Privacy. Performl’s Privacy Policy sets out how Performl collects, uses, discloses and stores personal information and how it is transferred and processed. It also contains details of how the Customer can exercise privacy rights and make complaints. In the course of using the Platform, you and your users may transfer to us Customer Material containing personal information. You agree and consent to the use, transfer, processing and storage of Customer Material in accordance with Performl’s Privacy Policy. Performl’s Privacy Policy is subject to change at Performl’s discretion. Under no circumstances will Performl be deemed a data controller with respect to Customer Material under any relevant law or regulation. Performl’s current Privacy Policy is available at https://www.performl.com.au/privacy. We may update our Privacy Policy from time to time and it is your responsibility to intermittently check for updates.

10.2 Customer Material Warranty. You warrant that you have obtained all necessary consents in respect of any Customer Material containing personal information which you provide to Performl or upload to the Platform.

10.3 Information Security and Data Privacy. Performl will use reasonable endeavours to maintain technical, organisational and administrative systems, policies and procedures in accordance with industry standards to help ensure the security and integrity of Customer Material and to mitigate the risk of unauthorised access to our use of Customer Material.

10.4 Security Measures. Performl cannot guarantee that unauthorised third-parties will never be able to defeat security measures or use the Customer’s personal information for improper purposes. The Customer acknowledges that personal information is provided at their own risk.

11 Warranties and Disclaimers

11.1 Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, that it has no outstanding agreement or obligation that conflicts with this Agreement, or that would preclude it from complying with this Agreement.

11.2 Disclaimer of Warranties. Except as expressly provided in this Agreement, the Customer understands and agrees that the Platform, to the maximum extent permitted by applicable law, is provided “as is” and on an “as available” basis and Performl expressly disclaims all warranties of any kind, whether express or implied and Performl:

(a) makes no representation, warranty or guarantee that the Platform will operate in combination with the Customer’s hardware, other software, Third-Party Services or Customer Material;

(b) makes no representation, warranty or guarantee regarding the availability, reliability, accuracy or completeness of the Platform, any Customer Material, any Authorised Dataset, any Customer Generated Materials or other materials prepared by Performl derived from in any way connected with any of the foregoing, or other content associated with your account;

(c) makes reasonable efforts to ensure the Platform is free from viruses or other harmful components, but cannot guarantee that the Platform will be free from unknown viruses or harmful components;

(d) cannot guarantee that the Platform will not incur delays, interruptions or other errors that are outside of Performl’s reasonable control and are inherent with the use of the internet and electronic communications;

(e) cannot guarantee that the Platform will meet your all requirements; that the Platform will be available at any particular time or location, uninterrupted or secure; or that any defects or errors will be corrected; and

(f) does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third-party through the Platform or any hyperlinked website or service, and Performl will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

11.3 Trial or Beta Services. From time-to-time Performl may invite the Customer to try, at no charge, features or functionality that are not generally available to customers and are identified as beta functionality or trial services (Trial Services). The Customer may elect to use Trial Services at its discretion. Trial Services are provided for evaluation purposes, not part of the Platform until made generally available to Performl’s Customers, may contain bugs or errors, and may be subject to additional terms. Trial Services will be provided on the terms agreed between the parties in writing. Trial Services are not considered part of the Platform for the purposes of Performl’s obligations under this Agreement and are provided “as is” and on an “as available” basis with no express or implied warranty. However, Trial Services are deemed part of the Platform for the purposes of our rights, your obligations and any disclaimers, limitations or exclusions of liability set out in this Agreement. Performl may discontinue Trial Services at any time at Performl’s sole discretion and may never make them generally available. Performl reserves the right to set eligibility requirements for Trial Services.

12 Limitation of Liability

12.1 Our Liability. To the maximum extent permitted by law:

(a) we will not be liable for any special, indirect, consequential, exemplary or incidental losses or damages, or any losses or damages that cannot reasonably be considered to arise naturally from a breach by us, however caused (whether under the law of contract, tort, equity or otherwise), arising out of or relating to the Agreement or the Platform, even if you have been advised of the possibility of such losses or damages. To avoid doubt, we will not be liable for any loss or corruption of data, interruption to business, loss or revenue, loss of opportunity, loss of sale, loss of profits, loss of business or any other economic loss or any loss of goodwill;

(b) our aggregate liability to you arising out of the Agreement and your use of the Platform will not exceed the Subscription Fees (to avoid doubt, excluding any third-party expenses or out-of-pocket expenses) paid by you to us under the Agreement in the twelve (12) months prior to the event or circumstance which gave rise to the relevant liability.

12.2 Your Liability. You agree that you remain liable for your use of the Platform, including by any third-party to which you have provided access (including but not limited to your Personnel), as though such use was by you.

12.3 Time Bar. Without limiting any defences a party may have under the Limitation Act 1969 (NSW), neither party shall be considered liable for any loss or damage resulting from any event or circumstances connected with the Agreement or the Platform unless a claim is formally made on the party at fault within six (6) years from the date on which the event or circumstance giving rise to the relevant loss or damage occurred.

12.4 Proportionate Liability. If either party is found liable to the other (whether under the law of contract, tort, in equity or otherwise), and the claiming party and/or a third-party has contributed to the loss or damage, the liable party shall only be liable to the proportional extent of its own contribution.

12.5 To the maximum extent permitted by applicable law, Performl assumes no liability or responsibility for any:

(a) errors, mistakes, or inaccuracies of Customer Material or third-party material;

(b) personal injury, death or property damage, of any nature whatsoever, resulting from your access to or use of the Platform;

(c) any unauthorised access to or use of our secure servers and/or any and all personal information stored therein;

(d) any interruption or cessation of transmission to or from the service;

(e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third-party;

(f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the service;

(g) Customer Material or the defamatory, offensive, or illegal conduct of any third-party;

(h) loss or deletion of Customer Material;

(i) loss or damage caused by a malicious act of you, your Personnel or a third-party; and/or

(j) loss or damage arising from any commercial, operational, investment, financing or similar decision made or steps taken (or not taken) in reliance or partial reliance on Customer Generated Materials or other data or insights generated through or by the Platform.

13 Indemnification

13.1 Customer Indemnity. The Customer shall defend Performl from and against any claim, demand or action in any form brought by a third-party (including without limitation any user) against Performl, and indemnify and hold Performl harmless from any damages, obligations, liabilities, losses, costs and expenses, including reasonable legal and expert fees, including by court order or forming part of a settlement, in each case to the extent arising from or related to:

(a) use of and access to the Platform by Customer or any user in a manner that breaches clause 6 or clause 7 of this Agreement;

(b) modification of the Platform by the Customer or its agents;

(c) Performl’s creation of designs, templates or materials pursuant to the Customer’s instructions;

(d) use of the Platform by the Customer, including any data or content transmitted or received including Customer Material;

(e) breach of any term of this Agreement by the Customer, including without limitation breach of any of the representations and warranties provided by the Customer;

(f) violation of any third-party right by the Customer, including without limitation any right to publicity or Intellectual Property Rights;

(g) violation of any applicable law, rule or regulation by the Customer;

(h) any other party’s access and use of the Platform with the Login(s);

(i) unauthorised or unlicensed use of the Platform by the Customer;

(j) all acts or omissions of Performl or its Personnel to the extent Performl was, at the relevant time, acting in its capacity as Limited Agent provided Performl is acting within the scope of its Limited Agency;

(k) any claims made against Performl or its Personnel by a third-party (including a regulator or government agency or body) that arise in connection with: (i) any claim that the Customer Materials infringed any person’s Intellectual Property Rights; (ii) any use or disclosure of the Customer Generated Materials which is not permitted by this Agreement; and (iii) the Authorised Datasets or the Authorised Dataset Licences provided such claim does not arise by virtue of a breach of this Agreement by Performl; and

(l) any breach by the Customer or its Personnel of the undertakings given in clause 6.9(b).

13.2 Performl Indemnity. Performl will defend the Customer from any claim brought against the Customer by a third-party alleging that the technology used to provide the Platform, or the Customer Generated Material (except to the extent that the claim relates to Customer Materials or Authorised Dataset(s) which are in whole or part incorporated into Customer Generated Materials) when used as authorised under this Agreement, infringes any third-party patent, copyright or trademark, and we will indemnify you and hold you harmless against any damages and costs finally awarded on the claim by a court of competent jurisdiction or agreed to via settlement executed by us, provided that we have received from you:

(a) prompt written notice of the claim, but in any event notice in sufficient time for us to respond without prejudice;

(b) reasonable assistance in the defence and investigation of the claim, including providing us a copy of the claim, all relevant evidence in your possession, custody, or control (to the extent permitted by law), and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for evidence and cross-examination; and

(c) the exclusive right to control and direct the investigation, defence, and settlement, if applicable, of the claim.

13.3 Other Remedies. If in our opinion Performl is likely to be enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion:

(a) procure the right for your continued use of the Platform or the Customer Generated Materials in accordance with this Agreement (as applicable);

(b) substitute substantially similar functionality to the Platform; or

(c) terminate your right to continue using the Platform and/or the offending Customer Generated Materials and refund any prorated portion of prepaid amounts for the terminated portion of the Subscription Term or Renewal Term (as applicable).

13.4 Exceptions. Our indemnification obligations in clauses 13.2 and 13.3 above do not apply:

(a) if the total aggregate fees we received with respect to your subscription to Platform in the twelve (12) month period immediately preceding the claim is less than $25,000 Australian Dollars;

(b) if the Platform is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification;

(c) if the Platform is used in combination with any non-Performl product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination;

(d) to unauthorised use of the Platform;

(e) to any claim arising as a result of: (i) your Customer Material or Customer Generated Materials in circumstances covered by your indemnification obligations in clause 13.1; (ii) any content or data accessed by you through the Platform carrying license conditions by third-parties beyond this Agreement you have not complied with; (iii) any third-party deliverables or components contained with the Platform; or (iv) if you settle or make any admissions with respect to a claim without our prior written consent.

13.5 Procedure. If one party (Indemnitee) receives any notice of a claim or other allegation with respect to which the other party (Indemnitor) has indemnity obligations, the Indemnitee must, within fifteen (15) days of receipt of such notice, give the Indemnitor written notice of such claim or allegation setting out in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee must not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor must immediately assume full control of the defence or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorised costs and expenses of such defence. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defence or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defence or settlement of the claim. The Indemnitor must have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorised by the Indemnitor.

13.6 Exclusive Remedies. The provisions of this clause 13 sets out Performl’s sole and exclusive obligations, and the Customer’s sole and exclusive remedies, with respect to infringement of any Intellectual Property Rights of any kind.

14 Amendments

14.1 Without prejudice to our rights set out in clause 4.2, Performl may amend this Agreement from time-to-time and the most current version will be posted on Performl’s website. If an amendment will have a material adverse effect on the Customer or the Customer’s rights or benefits under this Agreement or your use or enjoyment of the Platform, we will notify the Customer contact by email or when they next login to the Platform except in the case of an amendment being made to satisfy legal requirements, in which case we will provide you with advance notice of material amendments.

14.2 If Performl makes an amendment to this Agreement of which it was required to notify Customer pursuant to clause 14.1 (other than amendments required by law), you may terminate the Agreement by notifying us within thirty (30) days of receiving the amendment or date of publication for the updated version (otherwise, you will have been deemed to have consented to the amendment).

14.3 The terms and conditions of this Agreement shall apply to all existing Platform Service Order Forms and new Platform Service Order Forms following the date of publication of the updated version.

14.4 Any amendment to this Agreement not otherwise permitted by this clause 14 must be in writing, signed by you and Performl, and must expressly state that it is amending this Agreement.

15 Dispute Resolution, Governing Law and Jurisdiction

15.1 Subject to clause 15.3, before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:

(a) give the other party notice of the dispute and its nature;

(b) give the other party the opportunity to remedy any breach of this Agreement within thirty (30) days; and

(c) hold good faith negotiations with the other party to settle the disputed matter.

15.2 The Agreement will be governed by and construed in accordance with the laws of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia, in relation to any proceedings connected with this Agreement.

15.3 Both parties agree that a material breach (or attempted breach) of confidentiality or intellectual property may cause irreparable injury to other party for which monetary damages alone would not be an adequate remedy, and therefore the party shall be entitled to seek equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting security or proving actual damages.

16 Miscellaneous

16.1 Assignment. The Customer may not assign or novate this Agreement or any of its rights or obligations (as applicable) under this Agreement without Performl’s prior written consent, and consent shall not be unreasonably withheld. Performl may assign or novate this Agreement or any of its rights or obligations (as applicable) under this Agreement without the Customer’s prior written consent.

16.2 Entire Agreement. This Agreement and the associated Platform Service Order Form(s) constitute the entire Agreement of the parties with respect to their subject matter, and supersedes any prior representations, agreements, negotiations, or understandings between the parties, whether written or oral, with respect to the subject matter. In the event of a conflict between the terms of this Platform Service Agreement and a Platform Service Order Form(s), the terms set forth in the Platform Service Order Form(s) will prevail. This Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.

16.3 Force Majeure. Neither party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or internet equipment or service, other catastrophes, pandemic, epidemic, endemic, or any other occurrences which are beyond such party’s reasonable control. This clause 16.3 does not excuse the Customer’s payment of fees due under this Agreement provided that Performl continues to provide the Platform as set forth in the Agreement. Performl may terminate this Agreement if the force majeure event (as described above) affecting either party subsists for more than thirty (30) days.

16.4 Relationship of Parties. The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency (other than where we act as your Limited Agent) between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.

16.5 Waiver. The failure of either party to enforce at any time the provisions of the Agreement, the failure to require at any time performance by the other party of any of the provisions of the Agreement, or the express waiver by either party of any provision, condition or requirement of the Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.

16.6 Notices.

(a) Form. All notices, certificates, consents, approvals, waivers and other communications in connection with the Agreement must be in writing, signed by the sender (if an individual) or an authorised officer of the sender and marked for the attention of: (i) if the notice is to you, the person identified in the relevant Platform Service Order Form; and (ii) if the notice is to us, as follows: hello@performl.com.au. Communications sent by email need not be marked for attention in the way stated above. However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.

(b) Delivery. Communications must be: (i) left at the address set out above; (ii) sent by prepaid ordinary post (airmail if appropriate) to the address set out above; (iii) sent by email to the address set out above; or (iv) given in any other way permitted by law. However, if the intended recipient has notified a changed address or email address, then the communications must be to that address or email address.

(c) When Effective. Communications take effect from the time they are received or taken to be received under the below paragraph (whichever happens first) unless a later time is specified.

(d) When Taken to be Received. Communications are taken to be received: (i) if sent by registered post, 3 Business Days after posting (or 5 Business Days after posting if sent from one country to another); or (ii) if sent by email: (A) when the sender receives an automated message confirming delivery; or (B) four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first.

(e) Receipt Outside Business Hours. Despite above paragraphs, if communications are received or taken to be received after 5.00pm in the place of receipt or on a non-Business Day, they are taken to be received at 9.00am on the next Business Day and take effect from that time unless a later time is specified.

16.7 Severability. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.