Pearler Software Agreement

By accepting Pearler's Proposal for the Software, and/or by accessing or using this Software (whichever is first), the Customer agrees to be bound by these terms as they appear as part of the Software from time to time.

Background

Pearler is in the business of operating, supplying and supporting the hosted Software on its Website.
The Customer has requested a licence to use, and authorise its Personnel to use, the Software.
Pearler agrees to licence the Software to the Customer, and to provide the Services to the Customer, in accordance with these terms and conditions.

1. Defined terms & interpretation

1.1 Defined terms

In this Agreement, any capitalised term has the meaning described as follows:

Additional Services means additional services requested by the Customer which Pearler agrees to provide under clause 5.4.

Agreement means this agreement.

Australian Consumer Law means the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Commencement Date means the date of acceptance of these terms or the date of first use of the Software by the Customer (whichever is first).

Confidential Information of a party (Disclosing Party) means:

the Software (including all information, tools, questionnaires and other content provided in the Software for the purpose of assisting the Customer to assess its security risks); and
all information disclosed by the Disclosing Party to the other party or otherwise acquired by the other party which is marked as confidential, treated by the Disclosing Party as confidential or otherwise by its nature confidential, including any information relating to the business, business associates, financial affairs, products, services, suppliers or Customers of the Disclosing Party; and
all notes or records based on or incorporating, or copies of, that information,

but excludes any information that:

the other party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
that is public knowledge (otherwise than as a result of a breach of confidentiality by the other party or any of its permitted disclosees).

Customer means those customers who purchase a licence to use the Software and includes all Customer Personnel, who may be Users of the Software.

Customer Content means any data, information and other material that the Customer (or any third party who uses the Customer's account(s) uploads or inputs into the Software using the Customer's account(s).

Damages means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis (whether incurred by or awarded against a party)) and consequential and indirect losses and damages including those arising out of any third party claim.

Documentation means all documentation made available by Pearler for use with the Software, including any user manual or instructions (whether made available online or otherwise).

Fees and Charges has the meaning described in clause 6.1.

Force Majeure Event means, in relation to a party, anything outside that party's reasonable control, including:

any act or omission of a third person (except for an act or omission of the party's Personnel);
fire, flood, earthquake, elements of nature or act of God; or
riot, civil disorder, rebellion or revolution.

Insolvency Event means any insolvency-related event that is suffered by a party, including without limitation where:

the party ceases to carry on business;
the party ceases to be able to pay its debts as they become due;
the party disposes of the whole or any substantial part of its assets, operations or business (other than in the case of a solvent reconstruction or reorganisation);
any step is taken by the mortgagee to take possession or dispose of the whole or part of the party's assets, operations or business;
any step is taken to enter into any arrangement between the party and its creditors (other than in the case of a solvent reconstruction or reorganisation); or
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of the party's assets, operation or business.

Intellectual Property Rights means all intellectual property rights, including but not limited to, the following rights:

patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
any application or right to apply for registration of any of the rights referred to in paragraph (a); and
all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia), whether or not such rights are registered or capable of being registered.

Pearler means Baseline Technologies Pty Ltd, ACN 641 413 532.

Pearler IP means the Intellectual Property Rights owned by Pearler.

Permitted Use means:

use of the Software by the Customer strictly in accordance with this Agreement, and the relevant Subscription Level, for the purposes of the Customer conducting its ordinary business and
use of the Software by a Customer for any other purpose as described in the relevant Proposal or similar document.

Personnel means, in relation to a party, the officers, employees, contractors and agents of the party, any related body corporate of the party.

Proposal means the Pearler document labelled Proposal, Quote or Scope of Work (or such other document, however labelled) detailing:

the Software to be licensed to the Customer; and
the Services to be performed by Pearler under this Agreement, as amended or replaced from time to time.

Services means the provision of access to and use of the Software, including the Support Services and Additional Services (if any, as required).

Software means the Software application/s made available by Pearler on its Website, which are for the purpose of assisting Customers to assess, analyse and audit cybersecurity risks.

Subscription Fee means the amounts payable by the Customer for access to the Software and Services, at the applicable Subscription Level, and for the applicable Subscription Period, as set out on the Website, in the Proposal or otherwise agreed by the parties in writing.

Subscription Level means the relevant access level to the Software and Services, signed up to by the Customer, as set out on the Website, in the Proposal or otherwise agreed by the Customer and Pearler in writing.

Subscription Period means the period of access to the Software and Services, signed up to by the Customer, as set out on the Website, in the Proposal or otherwise agreed by the Customer and Pearler in writing.

Support Services means the provision by Pearler to the Customer of a reasonable level of support services (by email and telephone only) in respect of the Software.

Term has the meaning given in clause 2.

Update means any patch, fix, update, software or computer program produced primarily to overcome defects or errors in the Software or to extend, refine or replace existing functionality.

User means any of the Customer's Personnel who have access to the Software.

Virus(es) means code, a character or sequence of characters that is harmful, destructive, disabling or that assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data.

Website means Pearler's website at pearler.ai.

1.2 Interpretation

In this Agreement, except where the context otherwise requires:

the singular includes the plural and vice versa, and a gender includes other genders;
a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
any schedule or annexure to this Agreement is incorporated into and forms part of this Agreement;
a reference to USD$, $USD, dollar or $ is to United States currency;
a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.

2. Term

This Agreement commences on the Commencement Date and will continue for the Subscription Period, which is automatically renewable for successive periods equal to the Subscription Period on each payment of the Subscription Fee under clause 6.1, until terminated in accordance with clause 12 (Term).

3. Software Licence

3.1 Licence

Subject to payment of the Subscription Fee, Pearler grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Software for the Permitted Use during the Term and otherwise in accordance with this Agreement.
The Permitted Use is specific to the Customer's selected Subscription Level and is not limited to a particular number of Users or devices.

3.2 Access

Upon receipt of payment of the Subscription Fee, Pearler will provide the Customer with access to the Software via its Website, including all necessary user accounts, or the functionality for the Customer to create all necessary user accounts, for the Customer and its Personnel to access and utilise the Software.
The Customer and its Personnel must keep any user accounts and passwords, provided by Pearler, confidential and secure at all times.
If applicable, Pearler may, from time to time, offer Updates for the Software to the Customer free of charge.

4. Maintenance and hosting

4.1 Maintenance

The Customer acknowledges that Pearler may need to perform scheduled and unscheduled maintenance for the Software from time to time which may result in interruptions to the Customer's use of the Software. Pearler will use reasonable endeavours to minimise interruptions or downtime as a result of maintenance work.

4.2 Hosting

The Customer acknowledges that:

the Software is hosted by Pearler on equipment owned or licensed to Pearler by third parties;
hosting will be provided by Pearler as part of the Services; and
the Customer is not required (or permitted) to install the Software on any hardware owned or operated by it, and can only access the Software using the web-based portals made available by Pearler (and otherwise described in the Documentation).

5. Services

5.1 Pearler's Obligations

The Software and Services provided under this Agreement will:

be provided with due care and skill and to a professional standard; and
comply materially with the description provided on the Website and/or in the Proposal.

The Personnel employed or engaged by Pearler to provide the Services will be suitably experienced and qualified to provide the Services.
Nothing in this Agreement prevents or restricts Pearler from engaging subcontractors or consultants to assist in the provision of the Services.

5.2 Variation of Subscription Level

The Customer may request to upgrade or downgrade the Subscription Level selected (a Variation) in accordance with this clause.
The Customer is permitted to:

upgrade the Subscription Level selected at any time during the Term; and
downgrade the Subscription Level selected at any time during the Term;

however by undertaking a Variation, the Customer may be required to pay the increased Subscription Fee at the time the Variation is made, and will not receive a pro-rata refund if the Subscription Fee is to be a lesser amount.

5.3 Support Services

The Customer acknowledges and agrees that it must use its best endeavours to provide in-house support to all Users by its own Personnel, and to address any support issue internally using these resources before requesting assistance from Pearler. This level of in-house support will include determination and/or resolution of issues associated with the basics of using the Software and other non-complex use questions and/or establishing whether technological issues with use of the Software are caused by any failure of the Customer's infrastructure such as bandwidth/Wi-Fi connection issues or internet browser security issues.
Subject to clause 5.3(a), during the Term, Pearler will provide the Support Services to the Customer, including advice on technical issues, at Pearler's discretion.
The Customer acknowledges and agrees that Pearler provides support for the Software on a best efforts basis, and does not guarantee that the Support Services will be available at any particular times.

5.4 Additional Services

The Customer may request the provision of services in addition to the Services, and Pearler may at its sole discretion, accommodate the Customer's request.
Where Additional Services are requested, Pearler will:

confirm whether or not the Additional Services are able to be provided by Pearler;
where Pearler is able to provide the Additional Services, provide an estimated timeline for the completion and implementation of the Additional Services; and
specify the cost to complete the Additional Services.

Following receipt of the information described in clause 5.4(b), the Customer must promptly accept or reject Pearler proposal for the provision of Additional Services.
If the Customer:

accepts Pearler's proposal, those Additional Services will be deemed to form part of the definition of Services in this Agreement from the date of acceptance; or
rejects Pearler's proposal, this Agreement will continue in full force in an unamended form.

Unless otherwise agreed in writing (including if specified in any proposal provided by Pearler), any Additional Services provided by Pearler under this clause are on a "time and materials" basis at Pearler's then-prevailing standard rates.

6. Fees and Payment

6.1 Fees and Charges

The Customer must pay to Pearler:

the Subscription Fee; and
any other applicable fees and charges arising as a result of Pearler agreeing to vary or extend the Permitted Use or Services (together, Fees and Charges).

6.2 Variation of Fees and Charges

Pearler may vary the Fees and Charges once annually by giving at least 30 days' written notice to the Customer prior to the anniversary of the Commencement Date.

6.3 Payment

Pearler may invoice the Subscription Fee prior to the Commencement Date and thereafter the Subscription Fee will be invoiced and payable monthly in advance.
If any other Fees and Charges are payable, including any charge for Additional Services provided pursuant to clauses 5.3 and/or 5.4, Pearler will invoice the Customer for payment prior to completion of those services or as included in the Customer's next monthly invoice (in Pearler's absolute discretion and as notified to the Customer).
The Customer must pay all invoices issued by Pearler within 14 days of receipt via electronic funds transfer, or via credit card subscription, to the bank account nominated by Pearler in writing, and without any set off or deduction.

6.4 Interest on overdue amounts

If the Customer does not pay an invoice in full by its due date, Pearler may charge interest on any overdue amount at the rate of 2% above the prime lending rate of Pearler's principal banker, calculated daily, from the due date until the date of payment.

6.5 Failure to pay

If the Customer does not pay an invoice due under this Agreement on the due date, then from that due date, Pearler may (at its discretion) immediately suspend the Customer's access to the Software (or any part of it) and the provision of any other Services, until all outstanding amounts are paid.
Any action taken by Pearler under clause (a) above is without prejudice to any other remedies Pearler may have in relation to this Agreement at law or otherwise.

6.6 No pro-rata refund

Subject only to clauses 11.2 and 12.2(b), the Customer will not be entitled to receive any refund of the Fees and Charges paid by the Customer if this Agreement is terminated for any reason.

7. Conditions of Use

The Customer:

will be solely responsible for:

the use of the Software, and must not authorise use of the Software by any persons other than its Personnel without Pearler's prior written consent; and
the Customer Content, including providing, configuring, and ensuring the proper functioning of hardware, systems software, browser and other desktop applications software for the Customer's workstations and any locally hosted servers, including without limitation to implement, maintain and validate a proper and adequate backup and recovery system for the Customer Content and any other data owned by the Customer (even where this is provided by Pearler as part of the Services), as well as the implementation and maintenance of firewalls and security measures (including proper virus control);

must not use the Software otherwise than for the Permitted Use and in accordance with all terms of this Agreement;
must communicate any difficulties, malfunctions or loss of access encountered with the Software to Pearler as soon as reasonably practical;
must maintain the minimum requirements for the operation of the Software as specified in the Documentation (if any) or otherwise notified by Pearler from time to time;
must not alter, modify, tamper with, decompile, disassemble, reverse engineer or attempt to reverse engineer the Software, or otherwise attempt to derive the Software source code from the object code except to the extent permitted by applicable law or treaty; and
must not alter, delete or interfere with any copyright or trade mark notice which appears as part of the Software.

8. IP Rights

8.1 Ownership of Software

The parties acknowledge and agree that:

all IP Rights in the Software are owned by, or licensed to, Pearler; and
this Agreement does not transfer to the Customer any IP Rights in the Pearler IP, and the Customer must not represent that it owns those rights.

8.2 Ownership of Customer Content

All IP Rights in all Customer Content are owned by the Customer (or if not owned, then the Customer has obtained the owner's lawful authority to use the Content);
This Agreement does not transfer to Pearler any IP Rights in the Customer Content, and Pearler does not represent that it owns those rights.
The Customer grants to Pearler a non-exclusive, revocable licence to use the Customer Content during the Term solely for the Permitted Use and to the extent necessary to provide access to the Software and perform the Services in accordance with the Agreement.

9. Confidential Information

9.1 Use and disclosure

Each party (Recipient):

must keep the Confidential Information secret and confidential;
may use Confidential Information only for the purposes of this document;
establish and maintain effective security measures to safeguard Confidential Information from access or use not authorised under this document;
immediately notify the Disclosing Party of any suspected or actual unauthorised use, copying or disclosure of Confidential Information.

9.2 Permitted disclosure

A Recipient may disclose Confidential Information of a Disclosing Party:

to officers or employees of the Recipient who have a need to know for the purposes of this document (and only to the extent that each has a need to know) and before disclosure, have been directed by the Recipient to keep confidential all Confidential Information of each Disclosing Party; and
where it is required by law to do so, provided that the Recipient must before doing so:

notify the Disclosing Party;
give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
notify the third person that the information is confidential information of the Disclosing Party.

10. Security and virus protection procedures

10.1 Customer responsibility to prevent Viruses

The Customer must use reasonable commercial endeavours to detect and prevent Viruses from being installed, released or otherwise introduced into (or sent from):

the Software; or
any of Pearler's systems (or any system controlled by a third party) used to provide the Services,

in the course of using the Software.

10.2 Procedure if Virus is found

If the Customer becomes aware that any Virus is found to have been installed, released or otherwise introduced into the Software, any part of Pearler's systems or any part of a third party's systems, the Customer must:

notify Pearler immediately;
provide all information reasonably requested by Pearler in relation to the Virus, its manner of introduction and the effect the Virus has had or is likely to have;
take all necessary remedial action to eliminate the Virus and prevent re-occurrence and rectify any consequences (to the extent that they are capable of rectification); and
if the Virus causes a loss of data or other loss of operational efficiency, assist Pearler to mitigate the losses and restore the efficiency or data.

10.3 Costs

Without limiting Pearler's rights under clause 11, if the Virus was installed, released or otherwise introduced into the Environment by the Customer, the Customer must:

perform the obligations in clause 10.2 at its own cost; and
pay any costs and expenses incurred by Customer in connection with the restoration activities contemplated by clause 10.2.

11. Limitation of liability

11.1 Exclusion

Subject to clause 11.2, and to the extent permitted by law:

all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this Agreement.
Pearler's aggregate liability to the Customer arising directly or indirectly under or in connection with this Agreement, and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited to an amount not exceeding the total of the fees actually paid for those particular Services that gave rise to the loss or damage as at the date the liability arose.

Pearler will have no liability whatsoever to the Customer for any indirect, special or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data).
Pearler's liability will be reduced proportionally to the extent that any breach of this Agreement or any act or omission of the Customer contributes to or causes the claim.

11.2 Australian Consumer Law

To the extent that the supply of the Software and/or Services under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that (to the extent that the Australian Consumer Law permits Pearler to limit its liability), liability is limited to:

in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

11.3 Limitations on performance

Subject to clause 5.1, the Customer acknowledges that the Software is provided on an 'as-is' basis and Pearler cannot and does not guarantee that:

access to the Software will be uninterrupted or error free; or
the use of the Software by the Customer will result in the Customer complying with any relevant laws, procedures, codes of conduct, organisational policies or procedures.

The Customer acknowledges and agrees that while Pearler will make reasonable efforts to ensure availability, continuity, reliability, accuracy, currency and security of the Software, Pearler will not be liable if the Software is unavailable, or does not operate free from errors or corruption, for any reason beyond Pearler's control, including as a result of:

telecommunications unavailability, interruption, bottleneck, failure or fault;
negligent or malicious acts or omissions or wilful misconduct of third parties (excluding Pearler's third party service providers);
maintenance or repair carried out by any third party service provider (other than Pearler's third party service providers) in respect of any of the systems, browsers or adjacent software used in connection with the provision of the Software; or
services provided by third party ceasing or becoming unavailable.

11.4 Indemnity

As a condition of accessing and using the Software, the Customer hereby releases indemnifies Pearler and its Personnel against any Damages that it may sustain or incur as a result, directly or indirectly, of:

any breach of this Agreement by the Customer or its Personnel;
any negligent, unlawful or wilful act or omission of the Customer or its Personnel in connection with this Agreement; and
any loss of, or damage to, any property (including data), or injury to, or death of, any person caused by:

the Customer's access to and/or use of the Software; or
provision of the Services.

11.5 Exception

The indemnity in clause 11.4 does not apply to the extent that the Damages result from a breach of this Agreement, or any wilful misconduct, fraud or negligence of Pearler or its Personnel.

12. Termination

12.1 Termination for breach

A party may terminate this Agreement immediately by written notice to the other party, if the other party:

commits a breach of this Agreement that is not capable of being remedied; or
commits a breach of this Agreement that is capable of being remedied, and fails to remedy the breach within 14 days after receiving notice requiring it to do so.

12.2 Termination for convenience

Either party may, in its absolute discretion, terminate this Agreement and/or any Proposal by giving the other party written notice during the Term.
If the Customer terminates this Agreement under this clause, Pearler is not required to provide any refund (whether pro-rata or in full) of the Fees and Charges paid by the Customer for the Term.
If Pearler terminates this Agreement under this clause, Pearler will provide the Customer with a pro-rata refund of the Fees and Charges paid by the Customer calculated by reference to the Term.

12.3 Notification of Insolvency Event

If either party suffers an Insolvency Event, it must immediately give written notice of that event to the other party.

12.4 Action on termination

Upon termination:

the Customer must stop using the Software and immediately make payment to Pearler for all outstanding Fees and Charges;
the Customer must remove all Customer Content from the Software within 30 days, and to the extent any Customer Content remains on the Software after 30 days, Pearler is authorised to delete and destroy all Customer Content stored on the Software in the repository of the Customer; and
each party must stop using Confidential Information of the other party and, at the other party's option, return or destroy to the other party all of its Confidential Information.

12.5 Accrued Rights

Termination of this Agreement will not affect any accrued rights of either party.

13. Dispute resolution

13.1 No arbitration or court proceedings

A party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement (Dispute) unless it has complied with this clause 13.

13.2 Notification

A party claiming a Dispute has arisen must give the other parties to the Dispute notice setting out details of the Dispute.

13.3 Parties to resolve Dispute

During the 14 days after a notice is given under clause 13.2 (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use its reasonable efforts to resolve the Dispute. If the parties cannot resolve the Dispute within that period, they must refer the Dispute to a mediator if one of them requests.

13.4 Appointment of mediator

If the parties to the Dispute cannot agree on a mediator within seven days after a request under clause 13.3, the chairman of LEADR or the chairman's nominee will appoint a mediator. The role of a mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a binding decision on a party to the Dispute except if the party agrees in writing. The parties to the Dispute must equally pay the costs of any mediator.

13.5 Termination of process

A party to a Dispute may terminate the dispute resolution process by giving notice to each other after it has complied with clauses 13.1 to 13.3.

14. Goods and services tax

14.1 Consideration does not include GST

Unless specified otherwise, any sum payable or consideration to be provided, under or in accordance with this Agreement does not include any amount on account of GST.

14.2 Gross up of consideration

Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this Agreement is subject to GST (other than a supply the consideration for which is specifically described in this Agreement as 'GST inclusive'):

the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply (GST Amount); and
the Recipient must pay the GST Amount to the Supplier, without set-off, deduction or requirement for demand, at the earlier of the time that the GST Exclusive Consideration is payable or to be provided and the time that the Supplier has to pay the GST in respect of that supply.

14.3 Tax invoices

Notwithstanding any other provision of this Agreement, the Recipient need not make any payment for a taxable supply made by the Supplier under or in accordance with this Agreement until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.

14.4 Interpretation

A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.

15. Miscellaneous

The Customer may only assign its rights under this Agreement with the prior written consent of Pearler. Pearler may assign, transfer or otherwise deal with its rights under this Agreement or in the Software, without consent of the Customer.
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of this Agreement continue in force.
This Agreement is governed by the law applicable in South Australia and each party submits to the non-exclusive jurisdiction of the courts of that State.
This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter.
This Agreement may only be altered in writing executed by both parties.
Any indemnity or release under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.