1.Interpretation
1.1 Definitions:
“Agreement” means the agreement between the Customer and Perkbox for the supply of the Services on the terms set out in these Conditions, any Order Form, Order Confirmation and/or any Special Terms (if applicable).
“Billing Period(s)” means each Month, Quarter or Year (as set out on the relevant Order Form and/or Order Confirmation) commencing on the Launch Date (and/or the Renewal Date, as the case may be) in respect of which Perkbox issues invoices for Charges under this Agreement.
“Business Day” means a day other than a Saturday, Sunday or public holiday in Australia when banks in New South Wales are open for business.
“Charges” means the Subscription Charges and/or any other fees payable by the Customer for the supply of the Services by Perkbox, as set out on the relevant Order Form and/or Order Confirmation.
“Commencement Date” means the date when the Order is accepted by Perkbox, which shall be the date when Perkbox issues a written or electronic confirmation of its acceptance of the Order (“Order Confirmation”), at which point the Agreement shall come into existence.
“Conditions” means these terms and conditions.
“Customer” means the person or organisation procuring the Services from Perkbox and named as such on an Order Form.
“Customer Logo” means the logo supplied by the Customer to Perkbox in connection with the Services (if any).
“Customer Materials” means all materials,images and data, including, but not limited to, Customer Logo, supplied by the Customer to Perkbox in connection with this Agreement (if any).
“Data Protection Laws” means (i) the Data Protection Act 2018; (ii) the General Data Protection Regulation (iii) either the Privacy and Electronic Communications (EC Directive) Regulations 2003 or the EU ePrivacy Regulation whichever is in force in the UK at the relevant time; (iv) Privacy Act 1988 (Cth) and (v) all other applicable laws and regulations relating to the processing of personal data and privacy, including statutory instruments and, where applicable, the guidance and codes of practice issued by the Information Commissioner, Office of the Australian Information Commissioner or any other supervisory authority with jurisdiction in the United Kingdom and Australia, all as amended, extended, re-enacted or replaced from time to time.
“Employee Perks Programme” means the offering of various Perks to the End Users via the Perkbox Platform.
“End User(s)” means the personnel and/or clients of the Customer, who are designated by the Customer to use and access the Perkbox Platform.
“End User Data” means any data relating to the End Users provided by the Customer to Perkbox under, or in connection with, this Agreement.
“End User Licence” means the individual End User account on the Perkbox Platform, associated with an individual user email account, and which is subject to the End User Perkbox Terms and Conditions.
“End User Perkbox Terms and Conditions” means the terms and conditions of use of the Perkbox Platform by the End Users as published on the Perkbox Platform, including any policies, such as privacy policy and/or acceptable use policy, applicable to the use of the Perkbox Platform by the End Users.
“Extended Term” has the meaning as defined in clause 4.
“First Payment Amount” means the total amount of Charges payable for the first Billing Period, as such amount may be set out on the Order Form and/or Order Confirmation.
“First Payment Date” means the date when the First Payment Amount shall become payable, as specified on the Order Form and/or Order Confirmation. If no such date is specified on the Order Form and/or Order Confirmation, the First Payment Date shall be the earlier of (i) the Launch Date (or the Renewal Date, as applicable) or (ii) 30 days after the Commencement Date (whether or not the Launch Date has occurred).
“Initial Term” means the period specified as such on the Order Form and/or Order Confirmation.
“Insights Programme” means online insights scheme on the Perkbox Platform.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights,in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Launch Date” means the date specified as such on the Order Form and/or Order Confirmation, or as otherwise agreed between the parties in writing, when the Perkbox Platform becomes available for access and use by the End Users.
“Minimum Licences Commitment” means the minimum number of End User Licences specified on the Order Form and/or Order Confirmation in respect of each Programme.
“Month” means calendar month.
“Order” means, the Customer’s request for the provision of the Services by Perkbox, made by: (i) accepting these Conditions online and completing a direct debit mandate; or (ii) submitting to Perkbox an Order Form signed by an authorised representative of the Customer.
“Order Form” means a form setting out the details of the Programme(s) and/or Services requested by the Customer and certain other terms of the Agreement. In relation to a Renewed Agreement, “Order Form” shall refer to a request from the Customer to enter into a Renewed Agreement and/or to continue to receive the Services.
“Perkbox” means Perkbox Limited, a company incorporated in England and Wales with registered company number 7355963 whose registered office address is at Level 2 50 Finsbury Square London EC2A 1HD, registered as a Foreign Company (Overseas), ARBN 631 404 174, Locality of Registered Office Melbourne VIC 3000.
“Perkbox IPRs” means all Intellectual Property Rights subsisting in the Perkbox Platform, the Programme(s), and/or any statistical and/or aggregated data generated by the Perkbox Platform as a result of the End User’s use of the Perkbox Platform, excluding any Customer Materials incorporated in them (if any).
“Perkbox Logo” means any logo supplied by Perkbox to the Customer to be displayed on any promotional or advertising material produced by the Customer in accordance with clause 6.1.7.
“Perkbox Platform” means www.perkbox.com website and any other website, sub-domain and/or mobile application used by Perkbox from time to time to deliver the Programme(s)and/or Services to the Customer and/or the End Users.
“Perks” means various perks,discounts, products and/or services procured by Perkbox from the Suppliers and made available to the End Users on the Perkbox Platform pursuant to this Agreement;
“Programme(s)” means each of the Employee Perks Programme, Reward Programme, Recognition Programme, Insights Programme and any other web-based product made available by Perkbox from time to time via the Perkbox Platform.
“Quarter” means a period of three consecutive Months.
“Recognition Programme” means the online recognition scheme on the Perkbox Platform.
“Renewal Date” means the date specified on the Order Form (if applicable), or,if no such date is specified, the Commencement Date of the Renewal Agreement.
“Renewed Agreement” means an agreement between Perkbox and the Customer to extend an existing fixed term agreement or to renew previously expired or terminated agreement between the parties for the provision of the Services, on the terms and subject to these Conditions (if applicable).
“Reward Programme” means the online reward scheme on the Perkbox Platform.
“Services” means the provision of the Programme(s) and/or Services specified on the relevant Order Form and/or Order Confirmation and provided by Pursuant to this Agreement.
“Site(s)” means the locations specified on the Order Form and/or Order Confirmation, if any.
“Special Terms” means any terms that maybe set out or referred to in an Order Form and/or that may be attached to these Conditions as an Appendix,including any terms applicable to a specific Programme, and which may modify or supplement these Conditions.
“Subscription Charges” means the Charges payable in respect of the End User Licences.For the avoidance of doubt, the per End User Licence fees making up the Subscription Charges are calculated on the basis of the Minimum Licences Commitment and would be subject to increase if the Customer requested a lower Minimum Licences Commitment.
“Supplier(s)” means any supplier(s) procured by Perkbox to offer goods and/or services to End Users via the Perkbox Platform.
“Supplier Terms and Conditions” means the applicable terms and conditions subject to which the relevant Supplier is offering goods and/or services to the End Users (if applicable).
“Year” means a period of 12 consecutive Months.
1.2 Interpretation:
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to writing or written includes email.
1.2.4 If there is any inconsistency or conflict between any of the provisions of these Conditions, any Order Form, any Order Confirmation and/or any Special Terms, the following order of priority shall apply: (i) the Special Terms; (ii) these Conditions; (iii)Order Confirmation; and (iv) Order Form.
2. Regulatory Status
Perkbox is an appointed representative (FRN: 600485) of Insync Insurance Solutions Limited which is authorised and regulated by the Financial Conduct Authority (FRN: 766691)
3. Basis of Agreement
3.1 These Conditions apply to the Agreement between the Customer and Perkbox to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.2 Submission of an Order constitutes an offer by the Customer to receive the Services from Perkbox in accordance with these Conditions. The Customer is responsible for ensuring that the terms of each Order are complete and accurate.
3.3 Any quotation for the Programme(s) and/or Services given by Perkbox shall not constitute an offer. A quotation shall only be valid for a period of 14 Business Days from its date of issue.
3.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with this Agreement.
4. Term
This Agreement shall continue from the Commencement Date until (unless terminated earlier in accordance with its terms) the end of the Initial Term and thereafter for successive Billing Periods (each an “Extended Term”). For the avoidance of doubt this Agreement shall be in force and binding on the parties from the Commencement Date, even though the start of the Initial Term may be after the Commencement Date.
5. Supply of services
5.1 The Customer may, from time to time, procure any of the Programmes and/or Services by submitting an Order in writing. Following receipt of an Order, Perkbox shall, as soon as reasonably practicable, either (i) issue an Order Confirmation; or (ii) inform the Customer that it is unable to accept the Order.
5.2 Without prejudice to clause 5.3, Perkbox shall supply to the Customer the Programmes and/or the Services specified in an Order Confirmation from the date specified in the relevant Order Confirmation.
5.3 The Perkbox Platform shall become available to the End Users to access the relevant Programme(s) from the Launch Date.
5.4 Perkbox shall:
5.4.1 provide the Services in accordance with this Agreement in all material respects;
5.4.2 perform the Services with reasonable care and skill;
5.4.3 use reasonable endeavours to procure an attractive selection of goods and services of reputable Suppliers; and
5.4.4 comply with all applicable laws, statutes, regulations and codes from time to time in force (“Applicable Laws”), provided that Perkbox shall not be liable under this Agreement if, as a result of such compliance, it is in breach of any of its obligations under this Agreement. If there is any change to any Applicable Laws and such change affects Perkbox’s ability to comply with the terms of the Agreement in a material respect, Perkbox and the Customer shall negotiate in good faith appropriate changes to the affected provisions of the Agreement to the extent necessary to ensure that Perkbox’s performance of its obligations under the Agreement is in accordance with such Applicable Laws;
5.5 Perkbox shall use reasonable endeavours to meet any performance dates specified on any Order Confirmation (including any Launch Date), but any such dates shall be estimates only and time shall not be of the essence of the Agreement.
5.6 The Customer acknowledges that the Perkbox Platform is provided via the internet and as a result Perkbox cannot and does not guarantee that the Perkbox Platform, or any content on it, will always be available or be uninterrupted. This is because interruptions, delays and/or other problems are inherent in the provision of services via such communication facilities. Perkbox may temporarily suspend, withdraw or restrict the availability of all or any part of the Perkbox Platform, to the extent necessary for operational reasons and Perkbox shall use reasonable endeavours to minimise the effects of any such suspension, withdrawal or restriction and to notify the Customer and the End Users of any such suspension, withdrawal or restriction.
5.7 Perkbox shall have the right to make any changes to the Programme(s) and/or the Services from time to time: to reflect changes in the Suppliers, their offering and/or their conditions of supply to Perkbox: (i) to address its customers’ or the End Users’ needs; (ii) to comply with any Applicable Laws; and/or (iii) changes that do not materially affect the nature or quality of the Programme(s) and/or the Services.
5.8 Any Perks are provided on “as is basis” and Perkbox makes no warranty or representation as to the availability of any specific Perks and/or Suppliers. Perkbox shall use reasonable endeavours to ensure that the number of Perks available is commensurate with the applicable description of the Employee Perks Programme, as such description may be amended, as between Perkbox and the Customer, by a written agreement between the parties.
5.9 Perkbox makes no warranty or representation as to the quality or suitability of any Perks and/or any Suppliers, and does not provide any advice to the Customer and/or the End Users in respect of the quality or suitability of any Perks and/or Suppliers available on the Perkbox Platform.
5.10 If the Customer intends to offer any Programme developed specifically for employees to its non-employee personnel (including, but not limited to, consultants and contractors), the Customer acknowledges and agrees that:
5.10.1 it shall be solely responsible for notifying Perkbox about its intention to extend the offering to such personnel;
5.10.2 the Customer shall be solely responsible and liable for ensuring that the Perkbox Platform is customised appropriately to remove any Perks that the Customer considers inappropriate or unsuitable for such personnel.
5.11 The Customer may from time to time receive complimentary upgrades to Programme(s) and/or Services as offered by Perkbox (“Incentives”). Any Incentives are provided on an “as is” basis and Perkbox makes no warranty or representation of any kind regarding the Incentives, including without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, or the absence of latent, errors, or other defects, whether or not discoverable. Perkbox reserves the right at its sole discretion to suspend or remove the provision of all or any of the Incentives without notice (although Perkbox shall endeavour to provide the Customer with as much notice as reasonably practicable).
6.Customer's obligations
6.1 The Customer shall:
6.1.1 co-operate with Perkbox in all matters relating to this Agreement;
6.1.2 comply with all Applicable Laws in connection with this Agreement;
6.1.3 provide to Perkbox the End User Data and the Customer Materials required for the provision of the Services in a timely manner and in the format reasonably required by Perkbox;
6.1.4 provide, in a timely manner, such information as Perkbox may reasonably require, and ensure that it is up-to-date, complete and accurate in all material respects;
6.1.5 use reasonable endeavours to procure that the End Users do not re-sell or otherwise pass on the Perks to third parties and/or allow third parties unauthorised access to the Perkbox Platform;
6.1.6 notify Perkbox as soon as reasonably practicable of any material changes in: (i) the End User Data relevant to the provision of the Services; and/or (ii) the number of active End Users; (iii) and/or the anticipated volumes of End Users; and
6.1.7 not use any promotional and advertising material featuring specific information about the Programme(s), Perks and/or the Suppliers without prior written approval by Perkbox.
6.2 The Customer acknowledges and agrees that it shall not re-sell access to the Perkbox Platform to any End Users and/or other third parties without prior written consent from Perkbox and provided that Perkbox agrees to such sale(s), the Customer shall comply with any reasonable instructions and restrictions imposed by Perkbox. For the avoidance of doubt, any such consent by Perkbox shall not affect the Minimum Licences Commitment, unless otherwise agreed by the parties.
6.3 The Customer acknowledges and agrees that:
6.3.1 the End User Perkbox Terms and Conditions shall govern the relationship between Perkbox and the End Users and that any Supplier Terms and Conditions shall apply to any contractual relationships created as a result of the purchase or redemption of any Perks by the End Users via the Perkbox Platform and/or as a result of any other interaction between the End Users and the Suppliers, whether or not the interaction takes place via, or results from, the use of the Perkbox Platform; and
6.3.2 in the event of a material breach and/or persistent breaches of the End User Perkbox Terms and Conditions by the End Users, Perkbox shall have the right, at its sole discretion, to suspend access to the Perkbox Platform for any such End Users or suspend the provision of the Services under this Agreement.
6.4 If Perkbox's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Perkbox shall:
6.4.1 not be liable for any costs, charges or losses sustained or incurred by the Customer and/or End Users that arise directly or indirectly from such prevention or delay;
6.4.2 be entitled to payment of the Charges despite any such prevention or delay; and
6.4.3 be entitled to recover any additional costs, charges or losses Perkbox sustains or incurs that arise directly or indirectly from such prevention or delay.
7. Intellectual property
7.1 Perkbox and its licensors shall retain ownership of all Perkbox IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
7.2 Perkbox grants the Customer a fully paid-up, non-exclusive, royalty-free, non-transferable licence for the duration of this Agreement to use the Perkbox Logo on any promotional or marketing material approved by Perkbox in accordance with clause 6.1.7.
7.3 The Customer grants Perkbox a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and non-materially modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer in accordance with this Agreement.
8. Charges and payment
8.1 In consideration for the provision of the Services, the Customer shall pay Perkbox the Charges in accordance with this clause 8.
8.2 Unless otherwise specified on the relevant Order Form and/or Order Confirmation, all amounts payable by the Customer exclude amounts in respect of goods and services tax (GST), which the Customer shall additionally be liable to pay to Perkbox at the prevailing rate (if applicable), subject to receipt of a valid GST invoice.
8.3 The First Payment Amount shall be payable on the First Payment Date and shall include Subscription Charges for the first Billing Period following Commencement Date (or in the event of a Renewed Agreement, following the Renewal Date), whether or not the Launch Date has occurred. Charges in respect of the subsequent Billing Periods shall be payable on the first day of any such Billing Period following Launch Date or Renewal Date, as applicable.
8.4 Perkbox shall submit invoices for the Charges (plus GST if applicable) to the Customer by email, to an email address provided by the Customer from time to time. The Customer shall notify Perkbox as soon as reasonably practicable to accounts@perkbox.com.au or any alternative email address designated by Perkbox for this purpose from time to time, of any changes to the email address where Perkbox should submit its invoices.
8.5 Each invoice shall include all reasonable supporting information required by the Customer and shall provide the total Charges payable in respect of all Sites (if applicable) for the relevant Billing Period, and the number of End User Licences in respect of which the Subscription Charges are being rendered. For the avoidance of doubt, Perkbox shall not be required to issue separate invoices for separate Sites.
8.6 Subscription Charges shall be based on the number of End User Licences at the end of the preceding Billing Period, and in case of the first Billing Period, they will be based on the Minimum Licences Commitment.
8.7 In the event the number of End User Licences at any point during a Billing Period exceeds the number of End User Licences based on which the invoice in respect of such Billing Period was rendered, Perkbox may, at its sole discretion, include Subscription Charges in respect of such additional End User Licences in any subsequent invoice, or issue a supplementary invoice in respect of such Billing Period. For the avoidance of doubt, any Subscription Charges rendered in accordance with this clause 8.7 shall be based on the rates applicable to such Billing Period, whether or not the Subscription Charges have been subsequently increased pursuant to clause 8.11.
8.8 For the avoidance of doubt, the invoiced amount for each Billing Period shall be not less than the Subscription Charges for the Minimum Licences Commitment and no refunds shall be due to the Customer for under-utilisation of the End User Licences below the Minimum Licences Commitment.
8.9 If the Customer fails to make any payment due to Perkbox under this Agreement by the due date for payment, then, without limiting Perkbox's remedies under clause 11 (Termination):
8.9.1 the Customer shall pay interest on the overdue amount at the rate determined by the Australian Tax Office from time to time. Such interest shall accrue on a daily basis from the due date specified in clause 8.3 until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
8.9.2 Perkbox may suspend the availability of the Perkbox Platform or reduce the Services until payment has been made in full. In the event of suspension or reduction under this clause 8.9.2, Perkbox reserves the right to notify the End Users of such suspension or reduction.
8.10 All amounts due under this Agreement shall be paid by the Customer to Perkbox in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.11 Perkbox may, on providing advance written notice of at least 10 working days, apply an annual price adjustment and increase the Subscription Charges by up to 5% (calculated with reference to the current level of the Subscription Charges at the point of each annual price adjustment) with effect from each anniversary of the First Payment Date.
9.Data protection
9.1 Perkbox and the Customer each acknowledge that the End User Data provided by the Customer to Perkbox will include personal data.
9.2 Perkbox acknowledges that during the period between the transfer of End User Data to Perkbox by the Customer and the activation and acceptance of the End User Licence by the relevant End User, Perkbox shall process such End User Data as a data processor on behalf of the Customer in accordance with clause 9.7 and shall only use such End User Data for the purpose of creation and activation of the End User accounts for the End Users.
9.3 Without prejudice to the generality of clause 9.5, the Customer warrants and represents that the Customer will at all times have all necessary appropriate consents (or other lawful grounds, as determined in accordance with the Data Protection Laws) in place to enable lawful transfer of the End User Data to Perkbox for the purposes of the provision of the Services under this Agreement.
9.4 The Customer acknowledges that upon activation of an End User Licence by an End User, an independent contractual relationship will arise between Perkbox and each End User, and that Perkbox will be a data controller in relation to any personal data of each such End User, as Perkbox will independently determine the purposes for which and the manner in which Perkbox will process such personal data, including, but not limited to, the processing for the purpose of Perkbox’s compliance with its contractual obligations to any such End User.
9.5 Each party shall at all times comply with the Data Protection Laws specific to their jurisdiction in relation to personal data of End Users.
9.6 If one party receives any complaint, notice or communication that relates directly or indirectly to the processing of personal data or to either party’s compliance with the Data Protection Laws (as it relates to the personal data of the End Users), it shall immediately notify the other party and provide full details and copies of any communication. Each party shall use reasonable endeavours to work with the other party to remedy the situation.
9.7 To the extent Perkbox processes personal data of End Users as a data processor on behalf of the Customer, Perkbox shall:
9.7.1 process such personal data only to the extent necessary for the performance of the Services under this Agreement and/or on the written instructions of the Customer, unless Perkbox is required by the laws of any member of the European Union or by the laws of the European Union applicable to Perkbox to process such personal data for other reasons (Applicable Data Processing Laws). Where Perkbox is relying on the Applicable Data Processing Laws as the basis for processing of such personal data, Perkbox shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Perkbox from so notifying the Customer;
9.7.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.7.3 ensure that all personnel who have access to and/or process such personal data are obliged to keep the personal data confidential;
9.7.4 not appoint any third party sub-processors of such personal data without prior consent from the Customer (which shall not be unreasonably withheld or delayed) and provided that Perkbox will enter with each such third-party processor into a written agreement on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 9.7 or otherwise compliant with the Data Protection Laws. The Customer consents to Perkbox appointing the third party suppliers notified to the Customer in writing prior to the Commencement Date as third party sub-processors of personal data processed by Perkbox as data processor on behalf of the Customer;
9.7.5 assist the Customer in responding to any request from an End User to exercise his/her data subject rights and in ensuring compliance with the Customer’s obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.7.6 notify the Customer without undue delay on becoming aware of a personal data breach (as defined in the Data Protection Laws);
9.7.7 at the written direction of the Customer, delete or return such personal data and copies thereof to the Customer on termination of the Agreement unless required by any Applicable Laws to store the personal data; and
9.7.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 9.7 and allow for audits (not more than once in any 12 Months period) by the Customer or the Customer’s designated auditor. Any such audits shall be carried out during Perkbox’s normal business hours and only upon reasonable prior notice in writing.
10. Limitation of liability and indemnity
10.1 Nothing in this Agreement shall limit or exclude either party's liability: (i) for death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (ii) for fraud or fraudulent misrepresentation; and (iii) any other liability which cannot be limited or excluded by Applicable Laws.
10.2 Subject to clause 10.1, neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, for any indirect or consequential losses arising under or in connection with this Agreement, including loss of profit, loss of opportunity or loss of goodwill.
10.3 Subject to clause 10.1, each party’s total liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to an amount equal to the Charges paid and/or payable by the Customer under this Agreement. Nothing in this clause 10.3 shall affect the Customer’s liability to pay the Charges properly due under this Agreement and no amounts of Charges paid by, or due from, the Customer shall count towards the limit on the Customer’s liability under this clause 10.3.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
11.1.2 the other party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
11.1.4 3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.5 4 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, Perkbox may suspend provision of the Services under this Agreement or any other agreement between Perkbox and the Customer if the Customer becomes subject to any of the events listed in clause 11.1.1 to clause 11.1.4, or if Perkbox reasonably believes that the Customer is about to become subject to any of them. For the avoidance of doubt, suspension of the provision of the Services (for any reason) by Perkbox shall not affect the Customer’s liability to pay the Charges in accordance with this Agreement.
11.3 Without affecting any other right or remedy available to it, Perkbox may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
11.4 The Customer party may terminate this Agreement at any time by giving Perkbox not less than 90 days’ written notice of such termination.
11.5 Any notice of termination of this Agreement by the Customer must be delivered to Perkbox by email on accounts@perkbox.com.au or any alternative email address designated by Perkbox for this purpose from time to time.
11.6 On termination of this Agreement for whatever reason:
11.6.1 all Charges in respect of the Initial Term or the then current Extended Term (as applicable) shall become immediately due and payable and shall be calculated based on the number of End User Licences on the date of termination of this Agreement, but shall be not less than the Minimum Licences Commitment;
11.6.2 the Customer shall immediately pay to Perkbox all of Perkbox's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Perkbox may submit an invoice, which shall be payable immediately on receipt. For the avoidance of doubt Perkbox shall be entitled to invoice the Customer in respect of any Perks procured by Perkbox for the Customer upon the Customer’s request and paid for by Perkbox prior to the date of termination of this Agreement, whether or not such Perks have been accessed, used or redeemed by the End Users;
11.6.3 no refunds shall be due to the Customer for any Charges paid to Perkbox and/or any other sums paid by the Customer to Perkbox;
11.6.4 any licences granted under this Agreement shall cease automatically;
11.6.5 termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and
11.6.6 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11.7 Clause 11.6.1 and clause 11.6.2 shall not apply in the event of termination of this Agreement by the Customer under clause 11.1 (default and/or insolvency).
11.8 On termination of this Agreement, the Customer shall assist the End Users in respect of any arrangements that may be necessary to ensure that the End Users continue to benefit from any products or services of a duration extending beyond the duration of this Agreement purchased by the End Users, as may be required under the End User Perkbox Terms and Conditions and/or any Supplier Terms and Conditions.
12. General
12.1 Force majeure. Other than in respect of Charges payable by the Customer under this Agreement, neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
12.2.1 Save as provided in clause 12.2.2 and/or clause 12.2.3, neither party may subcontract, assign, transfer, novate, grant any trust over, or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the other party, such request not to be unreasonably withheld or delayed.
12.2.2 Notwithstanding clause 12.2.1, either party may assign, transfer, novate, grant any trust over, or otherwise deal with its rights and obligations under this Agreement, in part or in full, without the prior written consent of the other party to an acquirer of assets or a successor by merger.
12.2.3 Perkbox shall be entitled to subcontract its obligations under this Agreement (subject to any applicable obligations under the Data Protection Laws) to any third party or engage third party agents or subcontractors without obtaining the Customer’s prior consent.
12.3 Confidentiality.
12.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 12.3.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
12.3.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
12.3.4 Subject to clauses 12.3.5 and 12.3.6, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.3.5 The parties agree that each party can make a public reference to the fact that the Customer is using the Perkbox Platform, provided any such reference shall be made is such a way as not to bring the other party into disrepute or damage that party’s reputation.
12.3.6 Perkbox may use the Customer as a case study for future customers of Perkbox and/or refer to the Customer in its publicity and/or advertising material to attract new customers. The Customer grants Perkbox a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use the Customer Logo in accordance with this clause 12.3.6 for the term of this Agreement.
12.4 Entire agreement.
12.4.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
12.5 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a)waive that or any other right or remedy; or
(b)prevent or restrict the further exercise of that or any other right or remedy.
12.7 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.8 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
12.9 Notices.
12.9.1 Without prejudice to clause 11.5, any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
12.9.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.9.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by or email, one Business Day after transmission.
12.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.10 Third party rights. No End User, Supplier or other person, other than a party to this Agreement shall have any right to enforce any of its terms.
12.11 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of New South Wales, Australia. Notwithstanding the foregoing, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party's, its affiliates' or any third party's intellectual property or other proprietary rights.
12.12 Jurisdiction. Each party irrevocably agrees that the courts of New South Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
Version 17102019