Terms & Conditions
Effective Date: 18 March 2016
Thanks for taking the time to read our General Terms. We’ll try to keep things simple, but it’s important that you understand your rights and responsibilities, so please keep reading.
In this Agreement, a reference to:
Š Perked!, we, us or our means Perked! Inc.;
Š Customer, you or your means the entity or person indicated in the relevant section of the Service Terms
Š Users means any person or entity to whom you provide access to our Services, including any administrators of your account or survey respondents; and
Š Customer Data means any content that you or your Users submit or transfer to Perked! using the Services (including personal data);
As the Customer, you agree to this Agreement by signing a document that references this Agreement, or by using the Services. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
1.1 Perked! Services
During the Term, we will provide you with access to, and use of, the Services ordered by you as described in the Service Terms. You may order Additional Services at any time during the Term by contacting our Customer Success team. We will invoice you for any Additional Services you order after the start of the Term at the time those Services are ordered.
1.2 Changes to Services
We continually change and improve our Services. Perked! may alter the Services at any time without prior notice. We will endeavor to provide you with prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. In such cases, you may terminate your Subscription under clause 8.4.
1.3 Suspension of Services
We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance). If Perked! limits or suspends the Services, we will endeavor 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.
1.4 Third party Services
If you use any third party service with the Services, you acknowledge that the service may access or use the Customer Data. Perked! will not be responsible for any act or omission of the third party, including such third party’s use of the Customer Data. Perked! does not warrant or support any such third party service, and you should contact that third party for any issues arising from your use of the third party service.
You agree to pay Perked! any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Terms. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.
Some of our Services are billed on a subscription basis (Subscription). If you use Subscription Services, you will be billed in advance on a recurring, periodic basis (called a billing cycle). The billing cycle for your Subscription is outlined in the Service Terms. Your Subscription for any Services will automatically renew at the end of each billing cycle unless you cancel the auto-renewal by contacting our Customer Success team.
You authorize us to charge for fees using the payment method indicated in the Service Terms. Unless otherwise agreed, payments for invoices are due 30 days after the invoice date. If you elect to pay by credit card, debit card, or any other billing method that supports automatic recurring payments, we will initially attempt to charge you using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. You agree to keep your billing and billing contact information current and accurate.
Overdue payments may incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Perked! in collecting such overdue amounts, except where:
Š (a) the overdue amounts are due to Perked!’s billing inaccuracies; or
Š (b) you have sought to resolve a dispute using the dispute resolution process in clause 13.1 and that process is still active.
Unless stated otherwise in the Service Terms, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Perked!, you are responsible for all other taxes or duties related to the sale of Services under this Agreement, including any penalties or interest. If Perked! is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with a valid evidence that no tax should be invoiced.
Perked! may change the fees charged for Services at any time. For Subscription Services, the change will only become effective at the end of the current billing cycle of your Subscription. Perked! will provide you with reasonable prior written notice of any changes to fees before the changes go into effect.
Perked! will store and process Customer Data in a manner consistent with industry security standards. Perked! has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data.
4.1 Confidential Information definition
In this Agreement, Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:
(a) is or becomes public through no fault of the Recipient;
(b) the Recipient already lawfully knew;
(c) was rightfully given to the Recipient by a third party; or
(d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information.
4.2 Confidentiality obligations
The Recipient must:
(a) protect the Discloser’s Confidential Information using commercially reasonable efforts;
(b) not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
(c) only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement; and
(d) ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement.
4.3 Compelled disclosure
The Recipient may disclose the Discloser’s Confidential Information when required by law or legal process, but only after it, if permitted by law:
(a) uses commercially reasonable efforts to notify the Discloser; and
(b) gives the Discloser the opportunity to challenge the requirement to disclose.
In this Agreement, 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, trade marks, service marks, domain names, good will 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 recognized under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
You retain all ownership and Intellectual Property Rights to Customer Data. Perked! does not claim ownership over any Customer Data. This Agreement does not grant us any licences or rights to Customer Data except for the licence granted in clause 5.4 below, or as otherwise required for us to provide the Services to you or your Users.
In this Agreement, Confidentiality Notice means the notice given to survey respondents at the time of answering a survey conducted by you, including the degree of confidentiality and anonymity (as determined by you) that a survey respondent will have when answering survey questions.
To provide the Services to you, Perked! must provide your Users with a Confidentiality Notice for each survey you conduct. You acknowledge and agree that by conducting any survey using the Services:
(a) your right to possess Customer Data is subject to the terms of any relevant Confidentiality Notice provided to your Users by Perked!; and
(b) Perked!’s ability to show or transfer the Customer Data to you is subject to the terms of any relevant Confidentiality Notice provided to your Users by Perked!.
You grant Perked! a perpetual worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, archive, or otherwise exploit Customer Data for the limited purposes of:
(a) providing the Services to you as contemplated by this Agreement; and
(b) creating de-identified aggregated benchmark data.
This license continues even after you stop using the Services with respect to de-identified aggregated benchmark data derived from Customer Data and any residual backup copies of Customer Data made in the ordinary course of business. This license also extends to any trusted third parties that Perked! works with to the extent necessary to provide the Services to you.
You acknowledge that, in order to ensure compliance with legal obligations, Perked! may be required to review certain content submitted to the Services 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 modify, prevent access to, delete, or refuse to display content that we believe violates the law or this Agreement. However, Perked! otherwise has no obligations to monitor or review any content submitted to the Services by you or any other person.
If you provide us with feedback about the Services, Perked! may use that feedback without any obligation to you.
Perked! may identify you (by name and logo) as a Perked! customer in promotional materials or during promotional events. If you do not want your name and/or logo to be used in this way, please contact our Customer Success team.
Nothing in this Agreement or from your use of the Services grants you ownership in the Services or the content you access through the Services (other than Customer Data). This Agreement does not grant you any right to use any Perked! trade marks or other Intellectual Property Rights contained in our brand identity.
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Perked! is directly responsible for and is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to, or use of, your account, you should immediately notify our Customer Success team.
You are responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.
You must use the Services in compliance with, and only as permitted by, applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Perked! has agreed with you otherwise. You may not use the Services in a way that would subject Perked! to any industry-specific regulations without obtaining Perked!’s prior written agreement (for example, the Health Insurance Portability and Accountability Act).
You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:
(a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
(b) circumvent or attempt to circumvent any limitations that Perked! imposes on your account (such as any User limits in the Service Terms);
(c) probe, scan, or test the vulnerability of any Perked! system or network, unless with prior written authorization of Perked!;
(d) reverse engineer the Services, or attempt to do so;
(e) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
(f) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Perked! will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to an acceptable level to Perked!;
(g) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
(h) unless authorized in writing by Perked!, resell, lease or sublicense the Services to a third party.
(a) ensure that your Users are governed by, and comply with, this Agreement;
(b) obtain any consents required from each User to allow the Customer and its Admin Users to engage in the activities contemplated this Agreement;
(d) not provide any person under the age of 16 with access to the Services.
If a User breaches this Agreement, or uses the Services in a manner that Perked! reasonably believes will cause Perked! liability or disrupt others’ use of the Services, then Perked! 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 Perked! may suspend or close the applicable User account.
This Agreement begins on the date you sign the Service Terms or first use the Services (whichever is earlier), and continues until your Subscription ends or otherwise terminates, or if this Agreement is terminated (the Term).
You may terminate this Agreement at the end of a billing cycle by submitting a written request to the Customer Success team. Perked! may terminate this Agreement for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement. Perked! may terminate this Agreement at the end of a billing cycle by providing at least 30 days’ prior written notice to you.
Each party may suspend performance or terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Perked! may terminate this Agreement if any payment owed by you to Perked! is more than 30 days overdue.
If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Perked!. Upon receiving notice of termination from you, Perked! will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If this Agreement is terminated:
(a) by you due to breach by Perked!, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; and
(b) we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date; and
(c) we may assist you to export any Customer Data that existed in your account at the time of termination. However, we do not guarantee that all Customer Data will be able to be exported and only Customer Data that is permitted to be transferred to you within the terms of any applicable Confidentiality Notice will be transferred to you.
The following clauses will survive the termination of this Agreement: 2, 4, 5.3, 5.4, 8, 10, 11, 13 and 14.
Each party represents and warrants that:
(a) it has full power and authority to enter into this Agreement; and
(b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
You will indemnify, defend, and hold harmless Perked! from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third party claim regarding or in connection with:
(a) Customer Data (including claims of Intellectual Property Rights infringement);
(b) your use of the Services in breach of this Agreement; or
(c) your Users’ use of the Services in breach of this Agreement.
Perked! will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party. However, in no event will Perked! have any obligations or liability under this Section arising from:
(a) use of any Services in a modified form or in combination with materials not furnished or authorized by Perked!; or
(b) any content or data provided by you, your Users, or any third parties.
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:
(a) obtain the right for you, at our expense, to continue using the Services;
(b) provide a non-infringing functionally equivalent replacement; or
(c) modify the Services so that they no longer infringe.
If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that:
(a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
(b) the indemnified party may join in the defence with its own counsel at its own expense.
The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Perked! provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data or other content associated with your account.
To the extent permitted by applicable law, neither party will be liable for any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid by you to Perked! under this Agreement during the 12 months prior to the event giving rise to the liability.
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation of liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s confidentiality and indemnification obligations.
Perked! may amend this Agreement from time to time and the most current version will be posted on the Perked! website. If an amendment is material, as determined in Perked!’s reasonable discretion, we will notify the Customer Contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with at least 30 days’ notice of material amendments.
If an amendment has a material adverse impact on you and you do not agree to the amendment, you may terminate the Agreement by notifying our Customer Success team within 30 days of receiving notice of the amendment (otherwise, you will have been deemed to have consented to the amendment).
Any amendment to this Agreement that is not made to the current version displayed on our website, must be in writing, signed by you and Perked!, and must expressly state that it is amending this Agreement. If you execute an enterprise agreement with Perked! to receive the Services, that enterprise agreement will override this Agreement to the degree stated in the agreement.
Before commencing any from of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
Š (a) give the other party notice of the dispute and its nature;
Š (b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
Š (c) hold good faith negotiations with the other party to settle the disputed matter.
If your principal place of business is located in the Canada or United States (as determined by your address in the Service Terms):
Š (a) this Agreement is governed by the laws of British Columbia, Canada; and
Š (b) each party submits to the exclusive jurisdiction of the courts of British Columbia, Canada, in relation to any proceedings connected with this Agreement.
If your principal place of business is located outside the Canada or United States (as determined by your address in the Service Terms):
Š (a) this Agreement is governed by the laws of British Columbia, Canada; and
Š (b) each party submits to the exclusive jurisdiction of the courts of British Columbia, Canada, in relation to any proceedings connected with this Agreement.
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.
You may not assign this Agreement without Perked!’s prior written consent (such consent not to be unreasonably withheld). Perked! may assign this Agreement by providing written notice to you. However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
This Agreement (including any documents incorporated by reference to a URL or otherwise), constitute the entire agreement between you and Perked! and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party’s reasonable control.
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
All notices must be in writing and will be deemed given when:
Š (a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;
Š (b) received, if sent by mail without verification of receipt; or
Š (c) when verified by automated receipt or electronic logs if sent by email.
Notices to Perked! must be sent to Perked!, 1001 – 1288 West Georgia St., Vancouver BC, V6E 2E9 Canada and marked to the attention of Legal. Notices to you may be sent to the email address associated with the Customer Contact details in the Service Terms. You must keep the contact details associated with your account current and accurate by notifying Perked!’s Customer Success team when your contact details change. You may grant approvals, permission, extensions, and consents by email.
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
There are no third party beneficiaries to this Agreement. Your Users are not third party beneficiaries to your rights under this Agreement.