Terms & Conditions

Effective Date: 15 September 2021

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:

·       Perked!, we, us or our means Perked! Inc.;

·       Customer, you or your means the entity or person indicated in the relevant section of the Service Terms

·       Users means any person or entity to whom you provide access to our Services, including any administrators of your account or survey respondents; and

·       Customer Data means any content that you or your Users submit or transfer to Perked! using the Services (including personal data);

·       Service Improvement means work carried out by Perked! to improve the Services, including work in respect of benchmarking, text analytics, linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality; and 

·       Reports means any reports or analysis generated through the Perked! platform or other output of the Services.

 

These General Terms, the Service Terms and our Privacy Policy (together, the Agreement) form a contract between you and Perked!. This Agreement governs your subscription to, and use of, Perked!’s website and/or other related applications or services (together, the Services).

 

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.  Services

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 Service Availability

Perked! shall use commercially reasonable endeavours to ensure that the Services are made available for the Client with at least 99% uptime (measured on a monthly basis as a percentage of total time in that month, in minutes). In calculating Service Availability in every month the following shall be disregarded:

a)     scheduled maintenance performed in that month outside Business Hours;

b)     unscheduled maintenance performed outside Business Hours, provided that Perked! has given the Client not less than 4 Business Hours’ notice in advance;

c)     unscheduled maintenance in the case of emergency (including any steps or measures which are in Perked!’s reasonable consideration necessary or desirable in connection with any anticipated emergency); and

d)     any unavailability due to an event of force majeure (as specified in clause 14.3).

If Service Availability is not met in any month, the Client shall be entitled, upon notification to Perked! within 30 days of the end of the month in question, to be compensated by Perked! by an amount equal to 10% of the total applicable monthly fee for that month, for each 1% (of total time in that month, measured in minutes) below the Service Availability in which Services were unavailable (disregarding the factors referred to in clauses 1.3.a to 1.3.d above).

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.

 

2.  Fees and Payments

2.1 Fees for Services

Perked! Services are billed on a subscription basis (Subscription) and 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.

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.

2.2 Price Changes and User Increases

Perked! may change its fees for Services at any time. Except where you exceed the User limit indicated in the Service Terms, any changes to fees will apply from the start of your next Subscription Term.

If your use of the Services during a Billing Cycle exceeds the User limit indicated in the Service Terms, we may charge you for the additional Users on a pro rata basis for the remainder of that Billing Cycle.

2.3 Automatic Renewal

Your Subscription for any Services will automatically renew at the end of each Subscription Term unless you cancel the auto-renewal of that Service by providing us with written notice during the current Subscription Term for that Service.

To avoid doubt, automatic renewal does not guarantee that the price for Services paid during the previous Subscription Term will remain the same for the next Subscription Term.

2.3 Payment methods

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. If Perked! is required to initiate legal action due to non-payment of fees, Customer shall bear all costs resulting from the collection of such fees. You agree to keep your billing and billing contact information current and accurate.

2.4 Interest

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, from the date that the relevant payment was due until that payment has been received. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Perked! in collecting such overdue amounts, except where:

a)     the overdue amounts are due to Perked!’s billing inaccuracies; or

b)     you have sought to resolve a dispute using the dispute resolution process in clause 13.1 and that process is still active.

2.5 Taxes

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.

 

3.  Data Protection

3.1 Privacy

In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. We respect the privacy of all personal data contained in Customer Data and agree to handle that personal data as set out in our Privacy Policy (http://perked.co/privacy_policy.html). You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement, including our Privacy Policy.

If you or your Users are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be considered to be the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC).

If requested, we will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.

 

Under no circumstances will any entity in Perked! be deemed a data controller with respect to Customer Data under any relevant law or regulation.

3.2 Security

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.

3.3 Disaster Recovery

Perked! will retain backup copies of Customer Data made in the ordinary course of business by Perked!, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Perked! will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data will be irretrievably deleted from backups.

3.4 Survey Respondent Confidentiality

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:

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!.

 

 

4.  Confidentiality

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 in writing;

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

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

4.4 GDPR

The Parties may be subject to additional terms and conditions under the General Data Protection Regulation (Regulation (EU) 2016/679). Such terms may be found in the Data Processing Addendum available in Appendix A, which is hereby incorporated by reference and make part of the General Terms, to the extent applicable. In the event of any conflict or inconsistency between the Data Processing Addendum and the General Terms, the Data Processing Addendum shall prevail.

4.6 Non-Disclosure Agreements

The provisions of this clause 4 will superseded any non-disclosure agreement between the Parties and such agreement will have no further force or effect.

5.  Intellectual Property

5.1 Intellectual Property Rights definition

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.

5.2 Customer Intellectual Property 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 licences granted in clause 5.3 and 5.4 below, or as otherwise required for us to provide the Services to you or your Users.

5.3 Licence for the Services
For the Term of this Agreement, you grant Perked! a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Customer Data for the purpose of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable licence to use any Reports which you can (and are authorized to) through the functionality of the Services for your internal purposes (in each case subject to any Confidentiality Notices).
5.4 Licence for Service Improvement
You grant Perked! a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Customer Data for the purposes of Service Improvement and creating de-identified aggregated data (“Data Sets”). Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot directly or indirectly identify the Customer or its Users.
5.5 Customer Data review

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.

5.6 Customer feedback

If you provide us with feedback about the Services, Perked! may use that feedback without any obligation to you.

5.7 Customer lists

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.

5.8 Perked! Intellectual Property Rights

Nothing in this Agreement or from your use of the Services grants you:

a)     ownership in the Services or the content (including Reports) you access through the Services (other than Customer Data); and

b)     any right to use any Perked! trade marks or other Intellectual Property Rights contained in our brand identity.

Perked! will continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our intellectual property including software, services, or products.

 

6.  Account Management

6.1 Account security and access

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.

6.2 Customer systems

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.

 

7.  Customer Obligations

7.1 Legal compliance

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.

7.2 Unacceptable uses

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

e) directly or indirectly identify a User contrary to the terms of any Confidentiality Notice or other privacy setting, or attempt to do so;

f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;

g) 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!;

h) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;

i) attempt to circumvent any license, timing or use restrictions that are built into the Services; or

j) unless authorized in writing by Perked!, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.

7.3 Users

You must:

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

b) obtain any consents required from each User to allow you and the administrators or managers of your account to engage in the activities contemplated by this Agreement;

c) obtain any consents required from each User to allow Perked! to provide the Services, including User consents to Perked!’s Privacy Policy;

d) not provide any person under the age of 16 with access to the Services.

7.4 Suspension of Users

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.

 

8.  Term and Termination

8.1 Term

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).

8.2 Termination without cause

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.

8.3 Termination for cause

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.

8.4 Termination for material decrease in functionality

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.

8.5 Consequences of Termination

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; or

b) by Perked! due to breach by you, 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.

8.6 Survival

The following clauses will survive the termination of this Agreement: 2, 3.3, 3.4, 4, 5.3, 5.4, 8, 10, 11, 13 and 14.

 

9.  Warranties

9.1 Warranties

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.

 

10.  Indemnities

10.1 By Customer

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.

10.2 By Perked!

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; or

c) designs or specifications provided to Perked! by Customer that caused such claim.

10.3 Potential infringement

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.

10.4 Indemnity procedures

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.

Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 10.1 and 10.2. 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.

 

11. Disclaimers and Limitations of Liability

11.1 Disclaimers

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.

11.2 Exclusion of liability

To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or 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, and regardless of the theory of liability.

11.3 Limitation of liability

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.

11.4 Exceptions to limitations

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 indemnification obligations under this Agreement.

 

12.  Amendments

12.1 Agreement amendments

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 advance notice of material amendments.

If an amendment has a material adverse impact on the data privacy or security of your Customer Data 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).

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

12.2 Other amendments

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.

 

13. Dispute Resolution, Governing Law and Jurisdiction

13.1 Dispute resolution

Before commencing any from of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:

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

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

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

13.2 Jurisdiction

Regardless of your principal place of business (as determined by your address in the Service Terms):

a)     this Agreement is governed by the laws of British Columbia, Canada; and

b)     each party submits to the exclusive jurisdiction of the courts of British Columbia, Canada, in relation to any proceedings connected with this Agreement.

13.4 Injunctions

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.

 

14.  Other Terms

14.1 Assignment

Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). 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. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.

14.2 Entire Agreement

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.

14.3 Force majeure

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 general internet disturbance) that was beyond the party’s reasonable control.

14.4 Independent contractors

The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.

14.5 Interpretation

The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.

14.6 No waiver

A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.

14.7 Notices

All notices must be in writing and will be deemed given when:

a)     verified by written receipt, if sent by postal mail with verification of receipt service or courier;

b)     received, if sent by mail without verification of receipt; or

c)     when verified by automated receipt or electronic logs if sent by email.

Notices to Perked! must be sent to Perked! Inc., 300-939 Graville Street, Vancouver, BC, V6Z 1L3 Canada and marked to the attention of Perked! Inc.. 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.

14.8 Precedence

To the extent any conflict exists between the documents that constitute this Agreement, the order of precedence will be: Service Terms and General Terms and Privacy Policy.

14.9 Severability

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.

14.10 Third party beneficiaries

There are no third party beneficiaries to this Agreement. Your Users are not third party beneficiaries to your rights under this Agreement.

 

 

 

Appendix A: Data Processing Addendum

1. General

1.1  Each party shall comply with its respective obligations under the applicable law and regulation concerning data protection and/or privacy in or relating to the European Union countries and the UK, including the EU General Data Protection Regulation (2016/679) (“GDPR”) and local implementing law or regulations (“Data Protection Legislation”). The terms “process”, “controller”, “processor”, “personal data” and “data subject” shall have the same meaning as in the applicable Data Protection Legislation.

 

1.2  Subject to section 1.4 of this Annex, Customer will be the controller of the personal data in the Customer Data (“Personal Data”) and Perked! will be the processor. Perked! shall:

 

1.2.1 process the Personal Data only to the extent, and in such a manner, as is necessary for performing this agreement and in accordance with Customer’s written instructions from time to time and shall not process the Personal Data for any other purpose. Where Perked! is required by law to process the Personal Data, Perked! will promptly inform Customer of such legal requirement prior to carrying out the processing, unless it is prohibited from doing so by law;

 

1.2.2 limit access to Personal Data to those of its authorised personnel who need access to it in order to meet Perked!’s obligations under this agreement, ensure that all such personnel are bound by appropriate obligations of confidentiality and ensure that all such Personal Data is kept separate from any Personal Data of Perked! or of any other client of Perked!;

 

1.2.3 implement and maintain appropriate technical and organisational measures, to ensure an appropriate level of security in respect such Personal Data, against accidental, unauthorised or unlawful loss, destruction, alteration, disclosure of or access to such Personal Data; such measures shall be implemented with regard to: (a) encryption of Personal Data; (b) back-up and disaster recovery arrangements; (c) the ability to ensure ongoing confidentiality, integrity, availability and resilience of the IT infrastructure and environment; and (d) the regular testing and evaluation of the effectiveness of such measures. In particular, Perked! shall, in providing the Services, follow and comply with the data privacy and security measures set out in its Security Overview in connection with the Personal Data;

 

1.2.4 only engage sub-processors (list to be provided upon request);

 

1.2.5 promptly notify Customer if it receives any complaint, notice or communication which relates to the processing of the Personal Data, or any request from a data subject exercising any rights pursuant to the applicable Data Protection Legislation and reasonably cooperate with and assist Customer in relation to any such complaint, notice communication, or request and shall not disclose any of the Personal Data to any data subject or to a third party other than at the request of Customer, or as provided for in this Data Processing Agreement;

 

1.2.6 promptly notify Customer if it becomes aware of any unauthorised or unlawful processing, loss of, damage to, disclosure of, access to or destruction of the Personal Data (“Data Breach”) and provide Customer with any co-operation, information and assistance in respect of any Data Breach, reasonably requested by Customer;

 

1.2.7 unless otherwise requested by the Customer, upon termination of this agreement, Perked! will delete the Personal Data in accordance with the terms of the Master Subscription Agreement. Customer shall be entitled to export aggregated Customer Data; and

 

1.2.8 upon reasonable notice, make available to the Customer or grant to the Customer and its auditors and agents, a right of access to and to take copies of any information or records kept by Perked! pursuant to this Data Processing Agreement, solely to the extent necessary to demonstrate Perked!’s compliance with the Data Protection Legislation and provided always that this section shall not require Perked! to disclose any confidential information relating to Authorised Users, individual responses to employee engagement surveys or any other personally identifiable data of Authorised Users save to the extent required by the Data Protection Legislation. In relation to any subprocessors that are engaged pursuant to this agreement, the Customer acknowledges and agrees that it is sufficient, for the purposes of satisfying the requirements of this section, that Perked! has a right to audit those sub-processors on behalf of the Customer, subject to reasonable restrictions.

 

1.3  The subject-matter and duration of the processing of the Personal Data by Perked!, the nature and purpose of the processing and the type of Personal Data and categories of data subjects are all as set out in Perked!’s data privacy policy accessible at https://perked.co/privacy_policy.html. Perked! may change the policy after the date of this agreement by giving not less than 30 days prior written notice to Customer, provided that Customer may terminate this agreement by giving notice within 14 days of having received such notification if Perked! materially increases the manner or scope in which it processes the Personal Data.

 

1.4   Perked! may anonymise Customer Data in which case: (a) the data (“Anonymised Data”) will not be treated as Personal Data provided that it is not personal data for the purposes of the GDPR, (b) Perked! may use the Anonymised Data for statistical or benchmarking purposes to contribute towards the development of Perked!’s products and services during or after the term of this agreement and will not be required to delete the Anonymised Data on termination.

 

1.5  For the purposes of section 1.2.1 of this Annex, Customer shall not direct Perked! to process the Personal Data in a way that is inconsistent with Perked!’s standard services, or, require Perked! to provide Customer Data other than in aggregate form, unless otherwise agreed with Perked!. Customer keeping its account active shall be deemed to be an instruction to Perked! to continue to process the Personal Data to allow use of the System. Perked! shall anonymise Personal Data after it has been held on the System for more than five years.

 

1.6  Customer shall not (and shall not permit its Authorised Users to) configure the System dashboard or other interface by reference to, or devise or undertake any surveys or analysis using the System by reference to, any special category of personal data (within the meaning of the GDPR), namely: racial or ethnic origin; political opinions; religious or philosophical beliefs; trade union membership; genetic or biometric data; health data; sex life or sexual orientation, without obtaining Perked!’s prior written agreement. If Perked! agrees, Customer shall ensure such processing complies with an appropriate legal basis in accordance with applicable Data Protection Legislation.

 

1.7  Perked! shall be paid its reasonable costs by Customer to support any Customer-requested actions under section 1.2 of this Annex, including audits, subject access requests or Customer’s interactions with regulators (unless required as a result of Perked! breaching this agreement).

 

1.8  Customer shall ensure, and shall procure that all Permitted Affiliates shall ensure that:

 

1.8.1 it is entitled to transfer any relevant Personal Data to Perked!, such that Perked! may lawfully use, process and transfer such Personal Data in accordance with this agreement on Customer's behalf; and

1.8.2 all relevant Data Subjects have been informed of such use, processing, and transfer as required by all applicable Data Protection Legislation.

 

2. Overseas Data Transfers

 

2.1  The Customer hereby acknowledges and agrees that Perked! shall be entitled to transfer and/or process such Personal Data outside the European Economic Area in connection with the provision of certain modules and features of the System. Perked! and the Customer shall document any relevant contractual requirements of the Customer as required under applicable Data Protection Legislation to ensure compliant transfer and processing of such Personal Data outside the European Economic Area.