THESE TERMS ONLY APPLY IF RETAIL PARTNER HAS LESS THAN 30 SITES
BACKGROUND
Perkbox provides a wide range of perks via its employee and customer benefits schemes available on the Perkbox Platform (as defined below). Perkbox intends to offer its Users (as defined below) certain benefits when they make purchases from participating merchants using certain payment cards registered with Perkbox by such Users (the “Payments Programme”).
Perkbox has procured, or shall procure, certain technology allowing Perkbox to obtain information about any eligible payments made by the Users for the purchase of goods and services from any participating merchants.
The Retail Partner wishes to participate in the Payments Programme on the terms and conditions of this Agreement.
AGREED TERMS
1.INTERPRETATION
The definitions and rules of interpretation in this clause apply in this Agreement.
“Agreement” means these terms and conditions.
“Business Day” means a day other than a Saturday, Sunday or public holiday, in England when banks in London are open for business.
“Credit” means an amount payable by Perkbox to a User in accordance with the relevant Payments Programme terms and conditions applicable to the User.
“Commencement Date” has the meaning given to it in clause 2.1.
“Commission” means the commission payable by the RetailPartner to Perkbox in accordance with clause 3, being the amount notified to the Retail Partner prior to the entry into this Agreement and as set out on the Retail Partner’s account pages on the Perkbox Platform.
“Contract Year” means a period of 12 Months(or such shorter period if this Agreement is terminated earlier), commencing on the Commencement Date and/or each anniversary of the Commencement Date.
“Goods and/or Services” means any goods and/or services offered by the RetailPartner for sale to the general public.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information(including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Month” means a calendar month.
Nominated Card(s)” means any eligible payment card (as specified in the relevant User terms and conditions applicable to the Payments Programme)registered by a User with the Payments Programme to receive Credit and other benefits available under the Payments Programme from time to time (“Payments Programme Benefits”).
“Perkbox” means Perkbox Limited, a company incorporated in England andWales with registered company number 7355963 whose registered office address is at 20-22 Tudor Street, London EC4Y 0AY.
“Perkbox Platform” means www.perkbox.co.ukwebsite and any other website, sub-domain and/or mobile application used by Perkbox from time to time to deliver the PaymentsProgramme to the Users, and/or facilitate the Retail Partner’s participation in the Payments Programme.
“Refund(s)” means any amount refunded by the Retail Partner to a User in accordance with the applicable RetailPartner’s terms and conditions of supply of Goods and/or Services, but excluding any ex-gratia payments.
“Retail Partner” means the business, whether a person or an entity, that enters into this Agreement with Perkbox in relation to the PaymentsProgramme.
“Supplier(s)” means a third party engaged or to be engaged by Perkbox (directly or indirectly) to provide any services in connection with thePayments Programme, including, but not limited to a third party technology provider supplying software, information and data in respect of theTransactions, and/or payment cards providers such as Visa, MasterCard and other eligible payment cards from time to time.
“Tracking Partner” means a partner who may enable Perkbox to track and report the Transactions. At the time of this Agreement this is Fidel Limited but maybe subject to change.
“Transaction(s)” means any payment made by a User to the Retail Partner using a NominatedCard.
“User(s)” means any authorised user of Perkbox Platform.
COMMENCEMENT AND THE PAYMENTS PROGRAMME
2.1 The Retail Partner’s acceptance of these terms and conditions constitutes an acceptance of Perkbox’s offer to enter into this Agreement with the Retail Partner, at which point a binding contract will come into force between Perkbox and the Retail Partner (“Commencement Date”).
Perkbox shall use reasonable endeavours to facilitate the Payments Programme by making appropriate technological and other arrangements (including arrangements with the Suppliers) necessary to enable the Users to receive the Payments Programme Benefits in connection with any Transactions concluded by such Users with the Retail Partner.
The Retail Partner hereby acknowledges and agrees that the availability of the Payments Programme depends on the availability and willingness of the Suppliers to provide certain services, including the provision of data in respect of the Transactions, and the willingness of the Users to participate in the Payments Programme and make purchases from the Retail Partner. As a result, Perkbox provides no guarantees or undertakings in respect of:
the availability of the Payments Programme at all times during the term of this Agreement;
the types of payments cards that may be registered by the Users as Nominated Cards and used to complete Transactions with the Retail Partner; and/or
any volumes of sales achieved by the Retail Partner in connection with the Payments Programme.
The Retail Partner acknowledges and agrees that the participation in the Perkbox Programme requires the Retail Partner’s merchant ID data to be supplied to Perkbox to enable Perkbox to track any Transactions carried out by the Retail Partner. The Retail Partner therefore agrees to promptly provide Perkbox with the details of all merchant IDs for all its retail outlets (including any online and/or mobile application stores) and to promptly provide regular updates of any changes to such details to enable Perkbox to update its systems accordingly.
The Retail Partner hereby agrees to participate in the Payments Programme and to:
2.5.1 accept all Nominated Cards for payments (or part-payments) in its retail outlets and (if applicable) online through its website(s) and mobile application(s) for all Goods and/or Services. For the avoidance of doubt the Retail Partner shall not be in breach of this clause 2.5.1 if it refuses to accept a Nominated Card from a User in case of reasonable suspicion of fraud or other unlawful activity;
pay the agreed Commission to Perkbox in accordance with clause 3.1; and
provide other Payment Programme Benefits, as the parties may agree to offer to Users from time to time.
2.6 Following receipt of the Commission amount from the Retail Partner, Perkbox shall credit the Credit amount to the User’s account on the Perkbox Platform. The availability, use and redemption of the Credit by the Users shall be governed by the applicable Perkbox end-user terms and conditions.
2.7 Perkbox shall use reasonable endeavours to promote the Retail Partner on any platform including affiliates and business partner networks in connection with the Payments Programme by publishing the name and logo of the Retail Partner and such information about the Retail Partner as may be reasonably expected to bring the Retail Partner to the attention of the Users. The Retail Partner shall provide such assistance, documentation and information as may be reasonably required by Perkbox for Perkbox to comply with its obligations under this clause 2.7.
The Retail Partner will be solely responsible for the payment of all fees incurred in connection with the Transactions in accordance with the relevant procedures for accepting card payments.
Perkbox may furnish data and information about the Transactions through a Supplier. The Retail Partner hereby agrees and authorises Perkbox to obtain any Transaction data and information from any such Supplier as Perkbox may reasonably require for the provision of the Payments Programme.
Each party agrees that it has no right to bind the other party in contract or otherwise in relation to any customers of either party (including, but not limited to, the Users), and it shall not represent that it has such right. For the avoidance of doubt, Perkbox shall not be a party to any contractual relationship that may arise between the Users and the Retail Partner in connection with the Goods and/or Services supplied by the Retail Partner, and Perkbox shall have no rights and/or liabilities in respect of any such contractual relationship and/or any Goods and/or Services supplied by the Retail Partner to the Users.
Neither party may provide to any of its customers any information, or make any representation relating to the other party's products or services unless that information or representation is approved in writing by that party for use in those circumstances.
Each party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
3. CREDIT AND COMMISSION
3.1 In consideration for the inclusion of the Retail Partner in the Payments Programme, the Retail Partner shall pay Perkbox the agreed Commission.
3.2 Perkbox shall provide to the Retail Partner access through an online portal to view the Transactions.
For the avoidance of doubt, the information and data provided under clause 3.2 shall be fully anonymised and shall not include any personal data and/or other sensitive or confidential information of the Users.
All amounts payable by the Retail Partner exclude amounts in respect of value added tax (VAT) which the Retail Partner shall additionally be liable to pay to Perkbox at the prevailing rate (if applicable).
Perkbox shall submit to the Retail Partner invoices for the Commission plus VAT (if applicable) Monthly in arrears. Any amounts due under this Agreement shall be due and payable upon receipt of an invoice by the Retail Partner (“Due Date”)
The Retail Partner acknowledges and agrees that Perkbox shall be entitled to use any payment card details provided by the Retail Partner to settle any invoices issued under this Agreement or otherwise charge any amounts properly due to Perkbox under this Agreement. The Retail Partner shall ensure that Perkbox is at all times for the duration of this Agreement in the possession of valid and up to date payment card details. In the event a payment transaction in respect of any amounts due under this Agreement fails for any reason, Perkbox reserves the right to demand immediate payment of any such sums due by such means as Perkbox may direct in its sole discretion.
If the Retail Partner disputes any invoice or other statement of monies due, the Retail Partner shall immediately notify Perkbox in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. Perkbox shall provide all evidence (subject to any obligations of confidentiality) as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of the Retail Partner giving notice to Perkbox, the dispute shall be resolved in accordance with clause 8.11. Where only part of an invoice is disputed, the undisputed amount shall be paid on the Due Date.
If the Retail Partner fails to make any undisputed payment due to Perkbox under this Agreement by the Due Date, then, without limiting other rights and remedies available to Perkbox, the Retail Partner shall pay interest on the overdue sum from the Due Date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Barclay’s Bank base rate from time to time.
3.9 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
RETAIL PARTNER’S OBLIGATIONS
The Retail Partner will:
act diligently and in good faith towards Perkbox and the Users;
not do anything which could harm the reputation of Perkbox;
4.1.3 it will not allow any user account and login details created by, or provided to, the Retail Partner to be used by any person other than a person authorised by the Retail Partner, and will ensure that any such user account and login details are kept secure and treated as confidential; and
inform Perkbox of any anticipated problems of a material nature in connection with its obligations under this Agreement, its ability to supply its Goods and/or Services to the Users and/or its ability to accept the Nominated Cards and/or process the Transactions.
The Retail Partner warrants and represents that:
it has full power and authority to carry out the actions contemplated under this Agreement;
its entry into and performance under the terms of this Agreement will not infringe the Intellectual Property Rights of any third party or cause it to be in breach of any obligations to a third party;
it has obtained all approvals and consents required to supply Goods and/or Services to the Users, to accept the Nominated Cards and to process the Transactions;
it shall comply with all applicable laws and regulations in connection with its obligations under this Agreement.
Except as expressly provided in this Agreement, there are no conditions, warranties or other terms binding on the parties with respect to the actions contemplated by this Agreement. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this Agreement, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this Agreement.
5. INTELLECTUAL PROPERTY
The Retail Partner grants Perkbox a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials received from the Retail Partner under or in connection with Perkbox’s obligations under clause 2.7 (“Retail Partner’s Materials”) for the term of this Agreement and for the purpose of discharging Perkbox’s obligations under clause 2.7.
The Retail Partner shall indemnify Perkbox against all liabilities, costs, expenses, damages and losses suffered or incurred by Perkbox arising out of or in connection with any claim made against Perkbox for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with, the receipt or use of the Retail Partner’s Materials by Perkbox.
6. LIABILITY
6.1 Nothing in this Agreement shall limit or exclude Perkbox's liability:
6.1.1 for death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
6.1.2 for fraud or fraudulent misrepresentation; and
6.1.3 any other liability which cannot be limited or excluded by applicable law.
6.2 Subject to clause 6.1, Perkbox shall not be liable to the Retail Partner, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:(a) loss of profits; (b) loss of sales or business;(c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; (g) any fines, expenses or other losses arising from a breach by the Retail Partner of any applicable laws; (h) any ex gratia payment or sum paid in settlement of a claim without Perkbox’s prior written approval; or (i) any indirect or consequential loss.
6.3 Subject to clause 6.1, Perkbox's total liability to the Retail Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for events arising in any Contract Year shall be limited to 100% of the Commission paid by the Retail Partner under this Agreement in that Contract Year.
The Retail Partner shall indemnify Perkbox against all liabilities, costs, expenses, damages and losses suffered or incurred by Perkbox arising out of or in connection with any claim made against Perkbox by any User and/or Supplier arising out of or in connection with the performance or non-performance by the Retail Partner of its obligations under this Agreement. This indemnity shall not cover Perkbox to the extent that a claim under it results from Perkbox’s negligence or wilful misconduct.
7. TERMINATION
Either party shall have the right to terminate this Agreement at any time by giving to the other party not less than 30 days’ written notice.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
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;
7.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or(being a partnership) has any partner to whom any of the foregoing apply ;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
the other party (being an individual) is the subject of a bankruptcy petition, application or order;
7.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2.2 to clause 7.2.9 (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
Without affecting any other right or remedy available to it, Perkbox may terminate the Agreement with immediate effect by giving written notice to the Retail Partner if:
the Retail Partner fails to pay any payment 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;
Perkbox is unable, for whatever reason, to continue to provide the Payments Programme.
7.6 On termination of this Agreement for whatever reason:
any Commission in respect of any Transactions concluded prior to the termination date shall become immediately due and payable;
the Retail Partner shall immediately pay to Perkbox all of Perkbox's outstanding unpaid invoices and interest and, in respect of Transactions concluded but for which no invoice has been submitted, Perkbox may submit an invoice, which shall be payable immediately on receipt;
no refunds shall be due to the Retail Partner for any Commission and/or Credit paid to Perkbox and/or any other sums paid by the Retail Partner to Perkbox (other than in respect of Refunds);
any licences granted under this Agreement shall cease automatically;
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
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, including, but not limited to clause 1 (Interpretation), clause 3 (Credit and Commission), 6 (Liability), 7.6 (Consequences of termination) and clause 8 (General).
General
8.1 Confidentiality
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 8.1.2. 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.
8.1.2 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 8.1; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.1.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
Subject to clause 8.1.5, 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.
8.1.5 The parties agree that each party can make a public reference to the fact that the Retail Partner is participating in the Payments Programme, 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.
Force majeure. Other than in respect of the Commission and Credit payable by the Retail Partner 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.
8.3 Assignment and other dealings.
8.3.1 The Retail Partner shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and/or obligations under this Agreement without Perkbox’s prior written consent.
8.3.2 Perkbox may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
8.4 Entire agreement.
8.4.1 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.
8.4.2 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.
8.5 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.6 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.
8.7 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).
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.
8.9 Notices.
8.9.1 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.
8.9.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.9.1; 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 e-mail, one Business Day after transmission.
8.9.3 The provisions of this clause 8.9 shall not apply to the service of any proceedings or other documents in any legal action.
8.10 Third party rights. No User, Supplier or other person, other than a party to this Agreement shall have any right to enforce any of its terms.
8.11 Dispute resolution. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it then each party shall nominate a senior officer (with authority to represent and bind such party to any settlement agreed between the parties) to attempt in good faith to resolve such dispute.
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 England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and 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.
Consent.
As part of the on boarding to the Payments Programme and Tracking Partner API, Tracking Partner requires the Retail Partner to authorise Visa and MasterCard to share Transaction data with Tracking Partner on behalf of you, the Retail Partner. By entering into this Agreement, Retail Partner authorises Visa and MasterCard to send Tracking Partner qualifying Transaction data of Users, at any of Retail Partner’s MIDs, to enable card-linked offer(s) and target offers that may be of interest to the Users. A User will, upon programme enrolment, provide affirmative consent to share Transaction data, before the information can be shared with the Retail Partner. Transaction monitoring will cease immediately upon termination of this Agreement.