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SaaS Agreement

Perfect Circles Software-as-a-Service Agreement

  1. Introduction
    1. This Perfect Circles Software-as-a-Service Agreement (agreement) is made between Perfect Sircles Pty Ltd (ACN 635 735 705) of Suite 2B, 120 Old Pittwater Road, Brookvale, NSW, 2100 (Perfect Circles, we, our or us) and the person or entity listed in the Access Portal (Customer, you or your).
    2. This agreement, the Privacy Policy, and the Authorised User terms and conditions govern the Customer’s access to, and use of, the Perfect Circles Platform and the Services which made available through the Website and App on a subscription basis.
    3. Upon the Customer accepting the terms and conditions of this agreement, the Customer will use the Access Portal to create a unique account (Customer Account) for the Customer to use during the Subscription Term.
    4. The Customer Account will be operated by a Username (Customer Username) and password (Customer Password) which can be changed at any time by the Customer through the Access Portal.
  2. User subscriptions
    1. Use of Perfect Circles Platform by Authorised Users
      1. Subject to the terms of this agreement, the Customer and your Authorised Users are granted a non-exclusive, revocable, personal, non-transferable and non-sub-licensable licence to access and use the Perfect Circles Platform during the Subscription Term solely for its business purposes.
      2. The Customer and your Authorised Users will not acquire, or be entitled to, any rights other than those rights expressly set out in this agreement.
      3. In relation to the Authorised Users, the Customer undertakes that:
        1. the Customer will ensure that each Authorised User enters into the Authorised User Terms and Conditions and otherwise complies with the terms and conditions of this agreement; and
        2. each Authorised User will keep a secure non-transferable username (User Name) and password (User Password) for his/her access to the Perfect Circles Platform and the Services. The Customer will immediately notify Perfect Circles in writing of any unauthorised use of its Customer Account or its Customer Password. The Customer is responsible for all activities that occurs through the use of its Customer Password/User Passwords or Customer Account and we are not responsible or liable for any Loss due to misused, stolen or hacked Customer Passwords/User Passwords or Customer Account. The Customer can change any Customer Username/User Name or Customer Password/User Passwords at any time, through the Access Portal.
    2. Use of the Perfect Circles Platform by Customer
      1. The Customer acknowledges that:
        1. it is responsible for maintaining control over, and the confidentiality of, the Customer Username and Customer Password, and all User Names and User Passwords. The Customer must implement security measures to ensure that no unauthorised person may gain access to the Perfect Circles Platform using the Customer Username/User Name or Customer Password/User Passwords;
        2. it is responsible for all use of the Services by all Authorised Users or any other person, whether or not authorised by the Customer, who accesses the Perfect Circles Platform and Services (directly or indirectly) through use of the User Names and User Passwords;
        3. it controls each Authorised User’s level of access to the Perfect Circles Platform, and can revoke or change an Authorised User’s access, or level of access, at any time, and for any reason using the Access Portal; and
        4. if there is any dispute between the Customer and an Authorised User regarding access to the Perfect Circles Platform or use of the Services, Perfect Circles will decide what access or level of access the Authorised User shall have to the Perfect Circles Platform, if any.
      2. The Customer or any of your Authorised Users will not impersonate another client, Authorised User, or provide false identity information to gain access to the Perfect Circles Platform or the Services.
  3. Customer obligations
    1. Access to Perfect Circles Platform
      1. When setting up your Customer Account, the Customer must at all times provide us information that is true, accurate and not misleading or deceptive.
      2. During the Subscription Term, the Customer must (at the Customer ‘s cost):
        1. obtain and maintain all hardware, software and communications equipment necessary to access and use the Perfect Circles Platform and the Services;
        2. not permit its Customer Password/User Passwords to be used by any person not authorised to operate its Customer Account. In the event that the Customer Password/User Passwords has been (or the Customer believes may have been) compromised the Customer must immediately take steps to disable any such Username and User Password;
        3. provide us with all necessary cooperation in relation to this agreement and all necessary access to such systems, data and Personnel as may be required by us to provide Customer Data;
        4. comply with all Relevant Laws with respect to its obligations under this agreement;
        5. comply with all reasonable directions, policies and guidelines of Perfect Circles, as advised from time to time;
        6. carry out all of its responsibilities set out in this agreement in a timely and efficient manner; and
        7. ensure that the Authorised Users use the Perfect Circles Platform strictly in accordance with this agreement and the Authorised User Terms and Conditions and the Customer will be responsible for any act or omission of an Authorised User.
    2. Indemnity
      The Customer will defend, indemnify and hold Perfect Circles, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of, any:
      1. breach or non-performance by the Customer or Authorised Users of any its obligations under this agreement and the Authorised Users breach or non-performance of the Authorised User Terms and Conditions;
      2. negligent, wilful or wrongful act or omission, committed by the Customer or Authorised Users;
      3. loss or damage suffered or incurred by the Customer, any Authorised User or any third party as a result of the Customer’s failure (or any Authorised User’s failure) to upload or submit accurate or reliable information or Customer Data onto the Perfect Circles Platform;
      4. breach by the Customer or any Authorised Users, of any third party’s Intellectual Property; and
      5. actual or alleged breach by the Customer, or an Authorised User of any Relevant Law.
  4. Restrictions
    1. Access restrictions
      The Customer will not access, store, distribute or transmit:
      1. any viruses, worms, trojans or other malicious code; or
      2. any material during the Subscription Term that:
        1. is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
        2. facilitates illegal activity;
        3. infringes the Intellectual Property of a third party;
        4. may be unlawful, unethical, harmful, threatening, defamatory, obscene, pornographic, sexist, violent, harassing or racially or ethnically offensive or otherwise objectionable; and
        5. corrupts, degrades or disrupts the operation of the Perfect Circles Platform, or the Services.
    2. User restrictions
      The Customer must not do (nor attempt to do) any of the following:
      1. copy, modify, duplicate, create derivative works from, mirror, republish, download, display, transmit or distribute all or any portion of the Perfect Circles Platform;
      2. violate Perfect Circles’ Intellectual Property;
      3. copy, modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Perfect Circles Platform in any way or otherwise learn the source code, object code, or algorithms underlying the Perfect Circles Platform;
      4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Perfect Circles Platform available to any third party except the Authorised Users;
      5. engage in illegal behaviour, including by engaging in any unauthorized access to the services, systems or networks by probing, scanning or testing the vulnerability of a system or network or to breach security or authentication measures without express authorization of Perfect Circles;
      6. interfere with service to any user, host or network including, by mail bombing, flooding, or overloading a system;
      7. use the Customer Account without our authorization, collect information by deceit, including, by scamming, password robbery, phishing, security hole scanning, and port scanning; and by engaging in any activity or conduct that is in breach of any Relevant Laws; and
      8. make or publish any false, disparaging, malicious or defamatory statement or content (whether written or oral, including, without limitation, on social media) about the following (whether during or after the Subscription Term):
        1. Perfect Circle or any of our Affiliates (including Personnel of any of the foregoing);
        2. the Services; or
        3. the Perfect Circles Platform.
    3. No guarantees
      1. The Customer acknowledges that we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Services or the Perfect Circles Platform (or any goods or services provided connection with the Perfect Circles Platform).
      2. We will not be liable if the Services or the Perfect Circles Platform are unavailable for any reason, including directly or indirectly as a result of:
        1. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
        2. negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
        3. maintenance or repairs carried out by us or any third-party service provider in respect of any of the systems used in connection with the provision of the Services or the Perfect Circles Platform;
        4. services provided by third parties (including internet service providers) ceasing or becoming unavailable; and
        5. Force Majeure Events.
  5. Perfect Circles obligations
    1. Service obligations and exclusions
      1. During the Subscription Term, we undertake to provide the Customer with access to, use of, the Perfect Circles Platform and the Services substantially in accordance with this agreement.
      2. The undertaking in clause 5.1 shall not apply in the event of:
        1. any problem caused, or contributed to, by use of the Services and the Perfect Circles Platform contrary to our instructions or the terms of this agreement;
        2. modification or alteration of the Services and the Perfect Circles Platform by any party other than Perfect Circles or our duly authorised Personnel;
        3. the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the Perfect Circles Platform and Services are used;
        4. Force Majeure Events; and
        5. the unsuitability or malfunction of the Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider.
    2. Remedial action
      1. In the event that Perfect Circles fail to provide access to the Perfect Circles Platform and the Services in accordance with clause 5.1, we will, at our expense, use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking in clause 5.1. Notwithstanding the foregoing and subject to requirements of any Relevant Laws, we:
        1. do not warrant that the Customer’s use of the Perfect Circles Platform and the Services will be uninterrupted, virus-free or error-free, nor that the Services will assist the Customer to achieve its desired result or be fit for the Customer’s intended purpose;
        2. are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Perfect Circles Platform and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks; and
        3. are not responsible for the reliability, accuracy or currency of any information or Customer Data uploaded or submitted to the Perfect Circles Platform by the Customer or anyone else. The Customer or its third party providers are solely responsible for uploading or submitting to the Perfect Circles Platform and Third Party Products the most up-to-date information or Customer Data.
    3. Customer support services
      1. We will provide the Customer with access to, and use, of training and self-help modules through the Perfect Circles Platform.
      2. Perfect Circles may, at our absolute discretion, charge the Customer for the provision of training services (supplied in-person or by remote means) or support in relation the Perfect Circles Platform and the Services.
    4. Set-Up Services
      1. The Customer may request that Perfect Circles provide set-up and integration services in order to migrate Customer Data to the Perfect Circles Platform (Set-Up Services).
      2. Perfect Circle may, at our absolute discretion, charge the customer a fee for Set-Up Services at our prevailing rates at the time (Set-Up Fees).
      3. The Customer:
        1. acknowledges that the provision of the Setup Services will require the Customer to provide Perfect Circle with certain information and access to your systems, Customer Data, information and Personnel; and
        2. agrees to promptly provide Perfect Circles with all such information and access at Perfect Circles’ written request.
    5. Changes to Perfect Circles Platform
      The Customer acknowledges and agrees that:
      1. we may from time to time, at our absolute discretion, change add or delete the functions, features, performance, or other characteristics of, or otherwise upgrade or replace, the Perfect Circles Platform or the Services;
      2. the Customer may request customisation or changes to the Perfect Circles Platform, or the Services, which we will reasonably consider but is under no obligation to accept or implement. Additional fees may apply any customisation or changes to the Perfect Circles Platform or the Services requested by a Customer; and
      3. except as expressly provided by this agreement, we are under no obligation to provide any Customer support services or error correction.
    6. Maintenance services
      1. We will use reasonable endeavours to make the Services and the Perfect Circles Platform available to the Customer and Authorised Users available 24 hours a day, 7 days a week, except for:
        1. planned maintenance carried out at times advised in advance by Perfect Circles Platform;
        2. any Force Majeure Event; and
        3. unscheduled maintenance which may need to be performed from time to time. We will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of normal business hours.
      2. The Customer’s access to, and use of, the Perfect Circles Platform and the Services may be interrupted or unavailable during scheduled or unscheduled maintenance.
  6. Payment
    1. Payment of Fees
      1. Except for during the Trial Period, to access and use the Perfect Circles Platform and the Services, the Customer must pay the Perfect Circles, the Subscription Fees and other amounts owing under this agreement during the Subscription Term. The Subscription Fees are payable in advance (on a monthly basis) as specified on the Perfect Circles Platform.
      2. During the Trial Period, the Customer will not be required to pay the Subscription Fees to access and use the Perfect Circles Platform and the Services, except Perfect Circles may, at our absolute discretion, charge the Customer for the provision of Set-Up Services and/or standard customer support services.
      3. All Subscription Fees are in Australian Dollars. To the fullest extent permitted by any Relevant Laws, the Subscription Fees are non-refundable.
      4. When setting up the Customer Account the Customer will be offered payment options to pay the Subscription Fees. We may, at our absolute discretion and without notice, change the payment methods that can be used to access and use the Perfect Circles Platform and the Services, at any time.
      5. Perfect Circles use a Third Party Payment Processor to process payments made to us. By making payment of the Fees or any other amounts owing under the agreement, the Customer will provide Perfect Circles with accurate and complete billing information, and the Customer authorises us to share your billing information with our Third Party Payment Processor for the purpose of processing your payment.
    2. Fee increases
      We may increase our fees for the provision of the Perfect Circles Platform and the Services at any time upon 30 days’ written notice to the Customer. If the Customer does not agree to these fee increases, the Customer may terminate the agreement by written notice to the us no later than 14 days after the date the Customer received written notice of the fee increases.
    3. Outstanding amounts
      1. If the Customer fails to pay our Subscription Fees or any amount owing under this agreement by the due date (including because any payment fails to be processed), without limiting any other remedies available to us under this agreement or any Relevant Law, we may, at our absolute discretion, do any or all of the following:
        1. immediately suspend your access to all or any part of the Perfect Circles Platform and the Services and disable the Customer Account/User Names Customer Password/User Passwords (without liability to the Customer, your Authorised Users or anyone else) until all overdue amounts (including interest) are paid in full;
        2. charge interest on such overdue amounts, from the due date up to the date of actual payment, at an interest rate of 1.25% per month (15% per annum). Such interest will accrue on a daily basis and be compounded quarterly;
        3. set-off any and all overdue amounts against any amounts owing to the Customer by us under this agreement; or
        4. terminate the agreement in accordance with clause 12.
      2. The Customer will pay us, all costs and expenses incurred in recovering any outstanding invoices (including any interest), legal costs and expenses paid by us in relation to enforcement steps or mercantile or collections agents.
  7. GST
    1. A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) is, unless the context indicates otherwise, a reference to that term as defined or used in the GST Act.
    2. Any amount referred to in this agreement which is relevant in determining a payment to be made by 1 of the parties to the other is exclusive of any GST, unless indicated otherwise.
    3. If GST is imposed on a supply made under or in connection with this agreement, the consideration provided for that supply is increased by the rate at which that GST is imposed. The additional consideration is payable at the same time as the consideration to which it relates.
    4. The supplier must issue a tax invoice to the recipient of the supply at the time of payment of the GST inclusive consideration or at another time agreed by the parties.
    5. If 1 of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
  8. Customer Data
    1. Licence for Customer Data
      1. When the Customer establishes the Customer Account and uses the Services, the Customer will be required to provide Customer Data to Perfect Circles. The Customer will retain ownership of Customer Data supplied and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
      2. Subject to clause 10, the Customer grants Perfect Circles a worldwide, non-exclusive, royalty-free, perpetual, non-transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the Customer Data (and all Intellectual Property contained therein) for the purpose of:
        1. enabling Perfect Circle to provide the Perfect Circles Platform and the Services, and otherwise perform its obligations and exercise its rights under this agreement;
        2. informing the Customer of other products or services that Perfect Circles may offer from time to time, or in relation to Third Party Products; and
        3. identifying usage patterns, trends, and other statistical or behavioural data derived from use of the Perfect Circles Platform and the Services, in aggregated anonymized form, for the purposes of providing, operating, maintaining, or improving the Services or the Perfect Circles Platform (or any goods or services provided connection with the Perfect Circles Platform or otherwise provided by Perfect Circles); and
        4. sharing Customer Data with an Affiliate or other third party (with whom we may contract or be affiliated with from time to time) for the purposes of performing or improving the Services and the Perfect Circles Platform.
    2. Back-Up and Loss of Customer Data
      1. In the event of any Loss to Customer Data, the Customer’s sole and exclusive remedy shall be for Perfect Circles to use reasonable endeavours to restore the Customer Data, that is lost or damaged.
      2. Perfect Circles will not be responsible for any Loss, destruction, alteration, corruption or disclosure of Customer Data caused by an act or omission of the Customer, any Authorised Users, any third party, or a Force Majeure Event.
    3. Personal Information
      The Customer warrants that, in relation to any Personal Information comprising Customer Data:
      1. it has been collected in accordance with its own privacy policy and applicable Privacy Laws; and
      2. it has obtained all necessary consents and rights, including from Authorised Users and your clients, to grant us the licence in clause 8.1(b), or to otherwise make available to us, such information as contemplated herein.
  9. Third party providers
    1. The Customer acknowledges that the Services and the Perfect Circles Platform, may enable or assist the Customer to use or access Third Party Products and the Customer does so solely at its own risk.
    2. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products, or any transactions completed, and any contract entered into by the Customer, with the owner, licensor or operator of such Third Party Products.
    3. We recommend the Customer refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products.
    4. We do not endorse, sponsor or approve any Third Party Products or services made available via the Perfect Circles Platform. It is the Customer’s sole responsibility to determine that specific products or services, introduced or used by the Customer, or Authorised User, meets the needs of its business and/or are suitable for the purposes for which they are used.
    5. Any rights the Customer may have to access Third Party Products shall be limited to:
      1. the extent of our ability to pass on such rights to the Customer; or
      2. the relevant third party licensor terms.
  10. Proprietary and Intellectual Property rights
    1. The Customer acknowledges and agrees that Perfect Circles and/or its licensors own all Intellectual Property in the Services and the Perfect Circles Platform (including all updates, Modifications, New Versions and anything else arising or generated from the foregoing). Except as expressly stated herein, this agreement does not grant the Customer or Authorised Users (or anyone else) any rights to, or in, the Intellectual Property, or any other rights or licences, in respect of the Perfect Circles Platform, the Services or Documentation, whether existing now or at any time in the future.
    2. The Customer agrees not to submit, publish or input Customer Data, Personal Information or any other information onto the Perfect Circles Platform unless the Customer has the rights to do so (and the Customer will ensure that your Authorised Users comply with this obligation).
    3. The Customer hereby grants Perfect Circles permission to use and publish its name, logo and trademark, together with reference(s) to the fact that the Customer is a Customer of Perfect Circles, in any medium whatsoever, including, without limitation, on our website or our marketing collateral.
  11. Liability
    1. Non-excludable Obligations
      1. To the extent that the Customer acquires goods or services from us as a consumer within the meaning of the Australian Consumer Law or under any other applicable law, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
      2. Nothing in this clause 11 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
        1. contravene that statute; or
        2. cause any term of this agreement to be void.
    2. Exclusion of liability
      Except in relation to Non-excludable Obligations:
      1. all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this agreement;
      2. Perfect Circle’s liability to the Customer, any Authorised User or any third party arising directly or indirectly under or in any way connected with this agreement or the performance or non-performance of this agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
        1. we exclude all liability for Loss (including Consequential Loss) incurred by, or awarded against, the Customer in relation to the Services and the Perfect Circles Platform under or in any way connected with this agreement;
        2. we exclude all liability for any loss or damage to any property, or for any personal injury or death; and
        3. our total aggregate liability in respect of the Services and the Perfect Circles Platform under or in any way connected with this agreement is otherwise limited to the amounts paid by the Customer to Perfect Circles under this agreement in the 1 month immediately preceding the date on which the Claim giving rise to such liability arose.
    3. No warranties
      Except as expressly and specifically provided in this agreement:
      1. the Customer assumes sole responsibility for information or results obtained from, or outcomes arising from, the Customer’s access to, and use of, the Perfect Circles Platform and the Services. We will have no liability to the Customer, any Authorised User or any third party for any:
        1. decision, act, or failure to act by Customer based on any results obtained from the Customer’s access to, and use of, the Perfect Circles Platform, the Services, the Additional Services and the Documentation; and
        2. damage caused by errors or omissions in any information or instructions provided to Perfect Circles by the Customer in connection with the Perfect Circles Platform, the Services, the Additional Services or any actions taken by us at the Customer’s direction;
      2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Relevant Laws, are excluded from this agreement; and
      3. the Perfect Circles Platform, the Services, the Additional Services and Documentation are provided to the Customer and Authorised Users on an ‘as is’ basis.
  12. Term and termination
    1. Subscription Term
      This agreement will commence on the Commencement Date, and shall continue for a period of one month (Trial Period), and unless the Customer terminates the agreement in accordance with clause 12.2 on or before the end of the Trial Period, thereafter the agreement will continue until terminated in accordance with the terms (Subscription Term).
    2. Termination
      1. During the Trial Period, either party may immediately terminate this agreement at any time by giving the other party written notice (including by the Customer deactivating their account).
      2. During the Subscription Term (but excluding the Trial Period), either party may terminate this agreement at any time by giving the other party 4 weeks’ written notice (or by the Customer deactivating their account). If the agreement is terminated by either party in accordance with this clause, Perfect Circles shall provide the Customer with a pro rata refund of the Subscription Fees representing any unused portion of the Subscription Term.
      3. Perfect Circles may immediately terminate this agreement (without any liability):
        1. if the Customer commits a breach of any of its material obligations under this agreement, and if the breach is capable of remedy, does not remedy that breach within 7 days after receipt of notice of the breach or any further time allowed by the party; or
        2. an Authorised User commits a material breach of this agreement or the Authorised User Terms and Conditions; or
        3. if an Insolvency Event occurs in respect of the Customer.
    3. Effect of termination
      Upon termination of this agreement for any reason:
      1. the Customer must within 7 days pay any outstanding Subscription Fees and any other amounts that may be due to us under this agreement;
      2. we may without liability to the Customer or Authorised User permanently delete the Customer Account (except for the Customer’s contact details), and may destroy or otherwise dispose of any Customer Data in our possession unless Perfect Circles receives, no later than 10 days prior to termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of Customer Data. Perfect Circles shall use reasonable commercial endeavours to either make the back-up available for download by the Customer or deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by Perfect Circles in returning or disposing of Customer Data.
      3. the Customer will immediately destroy or return to Perfect Circles (at our option) all Documentation, Confidential Information, Intellectual Property and in your possession, custody or control and, in the case of destruction, certify to Perfect Circles that you have done so;
      4. all licences to use the Perfect Circles Platform, the Services and rights of access granted under this agreement will immediately terminate; and
      5. the Customer will have no right to access or use the Services or the Perfect Circles Platform.
    4. Survival
      Provisions of this agreement which are either expressed to survive its expiry or termination, or from their nature or context it is contemplated that they are to survive, will remain in full force and effect notwithstanding such expiry or termination. Without limitation, the parties agree that clauses and will survive the termination of this agreement.
  13. Confidentiality and privacy
    1. Confidential Information
      1. The Customer:
        1. may use Confidential Information of Perfect Circles only for the purposes of accessing and using the Perfect Circles Platform and the Services; and
        2. must keep confidential all Confidential Information of Perfect Circles except:
          1. for disclosures to Personnel who have a need to know the Confidential Information for the purposes of this agreement and are bound by confidentiality obligations equivalent to those set out in this clause 13 and that apply to the Confidential Information; and
          2. to the extent (if any) the Customer is required to disclose any Confidential Information by law or in accordance with the rules of an applicable stock exchange.
      2. If the Customer is required by law to disclose any Confidential Information to a third person (including government), the Customer must:
        1. before doing so:
          1. notify Perfect Circles; and
          2. give Perfect Circles a reasonable opportunity to take any steps that Perfect Circles considers necessary to protect the confidentiality of that information; and
          3. notify the third person that the information is confidential to Perfect Circles.
      3. The Customer acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Customer of its obligations under this clause 13, and agrees that Perfect Circles may seek such equitable relief (including interim or injunctive relief) as is necessary, to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
  14. Privacy compliance
    1. Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is provided or made available to or by either party under or for the purposes of this agreement, including by providing all information, obtaining all consents and giving all notices (or ensuring that such information, notices and consents have been given or provided) required pursuant to applicable Privacy Laws.
    2. You warrant that you and your Authorised Users, and any other individuals whose Personal Information is disclosed to Perfect Circles in connection with this agreement, are aware that Perfect Circles may use and disclose their Personal Information in accordance with this agreement and the Privacy Policy, and have consented to such use and disclosure.
    3. The Customer must immediately notify Perfect Circles in writing in the event of any withdrawal of any relevant consent by any individual whose Personal Information is contained or used in or processed by the Perfect Circles Platform, giving sufficient details of the withdrawal to enable us to comply with our obligations under applicable Privacy Laws.
    4. The Customer must keep adequate accounts, documents and records to evidence its compliance with this clause 14.
    5. The Customer must immediately notify Perfect Circles in writing if it becomes aware of a complaint or allegation of breach of an applicable Privacy Law by any person, or an investigation or enforcement action by a regulatory authority, in connection with this agreement.
  15. Additional services
    1. Subject to compliance by the parties with the process set out in clause 15(b), Perfect Circles will provide the Additional Services to the Customer in accordance with the terms of this agreement.
    2. The Customer may, at any time during the Subscription Term, request Perfect Circles to provide Additional Services in relation to the Perfect Circles Platform by giving Perfect Circles a written request to that effect (Additional Service Request).
    3. Perfect Circles will consider any Additional Service Request within 14 days of such request and will notify the Customer within a reasonable period whether Perfect Circles:
      1. is willing to provide some or all of the additional services as set out in the Additional Service Request, in which case Perfect Circles will prepare and submit to the Customer a proposal (Additional Services Proposal), which will set out the applicable fees for the Additional Services; or
      2. does not agree to provide the Additional Services.
    4. The parties agree that they may, acting reasonably, continue to exchange drafts of the Additional Service Proposal until such time as each of them agree on a final version.
    5. An Additional Service Proposal will not be binding on either party (and, to avoid doubt, Perfect Circle will be under no obligation to provide the relevant additional Services) unless the Additional Service Proposal has been signed by duly authorised representatives of both parties.
  16. Dispute resolution
    1. Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
    2. The parties must in good faith attempt to resolve any dispute between them.
    3. If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
    4. Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.
  17. Force majeure
    Perfect Circles will have no liability to the Customer, any Authorised User or anyone else if Perfect Circles is prevented from or delayed in performing its obligations under this agreement, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disaster, epidemic, pandemic, mandatory government shut-down, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of hosting or data centre providers or other suppliers or sub-contractors, or shortage of suppliers, equipment or materials (Force Majeure Event).
  18. Notices
    1. By using the Perfect Circles Platform and the Services the Customer accepts that communication with Perfect Circles will be mainly electronic. Perfect Circles will contact the Customer by email or provide the Customer with information by posting notices on the Perfect Circle Platform.
    2. The Customer acknowledges that all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement may be provided electronically and comply with any legal requirements that such documents be in writing.
    3. Notice will be deemed received and properly served immediately when posted on the Perfect Circles Platform or 24 hours after an email is sent to the Customer. As proof of service, it is sufficient that the email was sent to the email address specified by the Customer in the Access Portal.
  19. General
    1. Waiver
      A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Invalid or unenforceable provisions
      1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
      2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
    3. Entire agreement
      This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
    4. Relationship
      Nothing in this agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
    5. Assignment
      Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except Perfect Circles may assign, sell or transfer its rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of Perfect Circle’s business.
    6. Inconsistencies
      To the extent of any inconsistency between the terms and conditions of this agreement and the Authorised User Terms and Conditions, the terms and conditions of this agreement will prevail.
    7. Governing law
      The laws of the State of New South Wales, Australia govern this agreement. The Customer agrees to submit to the exclusive jurisdiction of the Courts of New South Wales.
  20. Definitions and interpretation
    1. Definitions
      The definitions in this clause apply in this agreement.
      Access Portal means the self-service portal provided to Customers and Authorised Users to access and use the Perfect Circles Platform.Account Login means the portal used by a Customer and Authorised User to subscribe to the Perfect Circles Platform.App means the mobile application comprising the Perfect Circles Platform.Additional Services means the services outside the then current scope of the services provided by Perfect Circles under this agreement that you request Perfect Circles to provide, and that Perfect Circles agrees to provide, as set out in an Additional Service Proposal agreed by the parties in accordance with clause 15(b).Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.Authorised Users means:
      1. those Personnel of the Customer; and
      2. facilities or asset managers, contractors and sub-contractors
      who are authorised by the Customer (either on a restricted or unrestricted basis) to access and use the Perfect Circles Platform and the Services and who have agreed to abide by the Authorised User Terms and Conditions.Authorised User Terms and Conditions means the authorised users terms and conditions between Perfect Circles and an Authorised User.Business Day means any day which is not a Saturday, Sunday or public holiday in New South Wales.Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.Commencement Date means the date the Customer uses the Access Portal to subscribe to the Perfect Circles Platform and Services.Confidential Information means:
      1. the following information, regardless of its form and whether the Customer becomes aware of it before, or after the date of this agreement:
        1. information that is by its nature confidential.
        2. information that is designated by Perfect Circles as confidential.
        3. information the Customer knows, or ought to know, is confidential.
      2. all notes and other records prepared by the Customer based on or incorporating information referred to in clause (i) above.
      3. all copies of the information, notes and other records referred to in clauses (i) and (ii) above.
      4. the Perfect Circles Platform, the Services and the Documentation, but in all cases excludes information that:
        1. the Customer creates (whether alone or jointly with any third person) independently of Perfect Circles.
        2. is public knowledge (otherwise than as a result of a breach of confidentiality by the Customer or any of its permitted discloses).
      Customer Data means all building and construction data, project management documentation, planners, construction work flow, diagrams, photographs and repair and maintenance information and data:
      1. uploaded to, or stored on the Perfect Circles Platform by the Customer, or an Authorised User;
      2. transmitted by, or through the Perfect Circles Platform at the instigation of the Customer or an Authorised User;
      3. supplied by a Customer, an Authorised User or third party for uploading to, transmission by, or storage on, the Perfect Circles Platform; or
      4. generated by the Perfect Circles Platform as a result of the use of the Services by the Customer or an Authorised User.
      Documentation means the manuals, user guides and other documents made available to the Customer by Perfect Circles from time to time, which sets out a description of the Perfect Circles Platform and the Services and any updates, replacements, revisions and additions to such documentation, provided or made available by Perfect Circles from time to time.Insolvency Event means, for a party, the happening of one or more of the following events:
      1. a Controller, administrator, liquidator, trustee in bankruptcy or similar person is appointed to it or to any of its assets or undertakings or any step is taken to do so;
      2. a resolution that it be wound up is passed or proposed or process is filed in a court seeking an order that it be wound up unless that process is withdrawn, struck out or dismissed within 5 Business Days of it being filed;
      3. it resolves to enter into, or enters into, any moratorium, arrangement, compromise or composition with any of its creditors, other than in the ordinary course of its business;
      4. it is or is presumed to be insolvent, applies to be deregistered or commits an act of bankruptcy;
      5. it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act 2001 (Cth), or any event or circumstance set out in section 461 of the Corporations Act 2001 (Cth) occurs in relation to it;
      6. any distress, attachment, execution or other Court process or judgment is levied or enforced on or against it or any of its assets or revenues and is not fully stayed, set aside or satisfied within 10 Business Days; or
      7. anything having a substantially similar effect to any of the events specified in paragraphs (a) to (f), inclusive, of this definition happens to it under the law of any jurisdiction.
      Intellectual Property means all Confidential Information, designs, copyright, derivative works, trademarks, trade mark applications, patents, patent applications, semi-conductor or circuit layout rights, operations, software or systems, inventions, discoveries, trade names, service marks, and domain names, trade secrets, know-how, technical information, specification, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including all consequential loss.Perfect Circles Platform means the online platform (CMS) owned and operated by the Perfect Circles and made available to Customers via the Website and/or App, and which is used by the Perfect Circles to provide the Services, including the application and database software for the Services (including content management system), the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property contained therein, provided or otherwise made available by Perfect Circles as part of the Services.Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.Personnel means any agents, advisors, consultants, contractors, employees, directors, officers or sub-contractors of party and the personnel of any such agents, advisors, consultants, contractors or sub-contractors.Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which the Customer carries on its business.Privacy Policy means our privacy policy available at www.perfectcircles.com.au or such other web address notified by us to the Customer from time to time, which is incorporated into this agreement.Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy Laws, anywhere in the world.Services means:
      1. the subscription services provided by Perfect Circles to the Customer under this agreement, which subscription relates to the downloading, accessing and/or using of the Perfect Circles Platform for the purpose of storing, managing, using and communicating building maintenance and repair information and workflows; and/or
      2. Setup Services (where applicable);
      3. Additional Services (where applicable); and
      4. Support Services.
      Subscription Fees means the subscription fees payable by the Customer to access and use the Perfect Circles Platform and the Services as published on the Website, which may be amended or updated by Perfect Circles from time to time.Third Party Payment Processor means Stripe and any other a third party payment processor permitted by Perfect Circles from time to time.Third Party Products means software, products, services or content (including all Intellectual Property contained therein) that:
      1. are provided by third parties;
      2. interoperate with the Services or the Perfect Circles Platform; and/or
      3. may be identified as third party products.
      Website means the Perfect Circles website located at or any other site notified by Perfect Circles from time to time.
    2. Interpretation
      In this agreement:
      1. no provision of this agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this agreement or including the provision in this agreement;
      2. the singular includes the plural and vice versa;
      3. a party means a party to this agreement;
      4. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
      5. a person (including a party) includes:
        1. an individual, Perfect Circles, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
        2. the person’s successors, permitted assigns, substitutes, executors and administrators;
      6. the word ‘including’ or similar, is not intended as a term of limitation;
      7. all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise; and
      8. parties must perform their obligations on the dates and times fixed by reference to New South Wales.

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