THIS AGREEMENT IS BETWEEN
CUSTOMER (as set out on the Order Form); and
PERKBOX LIMITED, is a company incorporated in England and Wales with registered number 7355963 whose registered office is at 20-22 Tudor Street, London EC4Y 0AY ("Perkbox"); and “Customer” as identified in the Order From, for the provision of employee perks services by Perkbox, its corporate affiliates, and its Perk Providers.
(A) Perkbox carries on the business of developing and providing specialist employee benefits solutions to its Customers.
(C) Customer wishes Perkbox to make available the Perkbox Product(s) to its Employees
(D) Perkbox has agreed to make available the Perkbox Product and to provide the Services in accordance with the terms and conditions set out in this Agreement.
NOW THEREFORE it is hereby agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
“Appropriate Regulator” has the meaning applied to it in the Handbook plus in this Agreement it is extended to include the Financial Conduct Authority where appropriate;
"Commencement Date" means the date of this Agreement;
"Confidential Information" means any information of a secret, confidential or private nature in any form concerning either of the Parties which has been obtained in contemplation or during the course of this Agreement that relates to current business activities and current and future plans relating to development, production or sales, marketing strategies and tactics, costings, profit margins, discounts, rebates and other financial information, customers and details of their particular requirements, suppliers and their production or delivery capabilities, pricing, credit policies, credit procedures or systems, or information relating to the Parties' employees, members, consultants, affiliates or officers or to their businesses generally;
“Employee” means any employee, agent or sub-contractor of Customer;
“FSMA” means the Financial Services and Markets Act 2000 including any secondary legislation issued under the act, including statutory instruments and any replacement or amendment acts;
"Fees" means the fees set forth in the Perkbox Employee Perks Order Form hereto to be paid by Customer to Perkbox;
"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor seeking to comply with its contractual obligations, complying with all applicable laws and regulations and engaged in the same type of undertaking and under the same or similar circumstances and conditions as Perkbox;
“Handbook” means the handbook of rules as published from time to time by the Appropriate Regulator. In this Agreement it is extended to include other documents produced by the Appropriate Regulator where it is clear from those documents that the Appropriate Regulator intended regulated firms to take notice and abide by comments in those documents;
"Intellectual Property Rights" means any and all patents, patent applications, know-how, trademarks, trademark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights;
"Indicia" means Customer’s logos, emblems, symbols, service marks (whether registered or unregistered), get-up, trade or business names, trademarks (whether registered or unregistered), or any other indicia that identify Customer for use in connection with the Perkbox Product;
“Initial Term” means the initial term of this Agreement as described in the Order Form, and in the case that it is not set out in the Order Form, it shall mean a minimum period of 12 months from the Launch Date;
“Launch Date” means the date in which the Perkbox Product goes live and is made available to the Employees;
“Non-Investment Insurance Contracts” shall have the meaning given to them in the Handbook;
“Non-Real Time” shall refer to a communication that is not made in the course of a personal visit, telephone conversation or other interactive dialogue;
“Order Form” is the form received by the Customer that specifies the number of users, the pricing agreed and the Term and which forms part of this Agreement;
"Perk" means any of the individual Perks comprised in the Perkbox Perks Programme as further shown on perkbox.co.uk;
“Perkbox Product” means the Perkbox Perks Programme or other such product ordered by the Customer as indicated on the Order Form.
"Perk Provider" means the provider of any Perk in the Perkbox Perks Programme;
"Parties" means the parties to this Agreement;
“Regulated Activities” refers to those activities named in the regulated activity orders as issued from time to time and which are activities which are prohibited by section 19 of the FSMA unless the firm/person is authorised or exempt;
“Perkbox Perks Programme” is a web-based service offering Employees of Customer access to various useful Perks as negotiated by Perkbox with Perk Providers;
“Services” are set out in Schedule 1;
“Staff” means any employees, agents or sub-contractors of Perkbox engaged or involved in the development of the Perkbox Product and/or the provision of the Services;
“Term” means the Initial Term together with each Renewal Term;;
“Working Day” means a day other than a Saturday, Sunday or public holiday in England or Wales.
1.2 In this Agreement unless or to the extent the context otherwise requires:
1.2.1 The Clause, Schedule and other headings are inserted for convenience only and do not affect its interpretation;
1.2.2 The Recitals and Schedules form part of this Agreement and have the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement shall include the Recitals and the Schedules;
1.2.3 A reference to a Clause, Recital or Schedule is a reference to a Clause of or Recital or Schedule to this Agreement;
1.2.4 Words importing the masculine gender only shall include the feminine and neuter gender and vice versa;
1.2.5 Words importing the singular number only shall include the plural number and vice versa;
1.2.6 A reference to a person includes a reference to a firm, a body corporate, an unincorporated association or authority;
1.2.8 References to any statutes or statutory provisions include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other sub-ordinate legislation made under the relevant statute or statutory provision;
1.2.9 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties;
1.2.10 If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
1.2.11 Any consent, approval or notice given under this Agreement shall only take effect if given in writing.
2. DEVELOPMENT AND LAUNCH OF THE PERKBOX PERKS PROGRAMME AND PROVISION OF THE SERVICES
In consideration of Customer’s agreement to pay the Fees over the Term, Perkbox hereby agrees to make available the Perkbox Product and to provide the Services to Customer for the duration of the Term.
3. DURATION AND EXTENSION OF THE TERM
3.1 This Agreement shall continue for the duration of the Initial Term and automatically renew for further 12 month periods (each, a “Renewal Term”) unless either Party terminates the Agreement with 30 days’ prior written notice at the end of the Initial Term or then current Renewal Term, as applicable, or unless the Agreement is terminated in accordance with the provisions of Clause 15.
4. OBLIGATIONS OF PERKBOX
4.1 Perkbox represents, confirms and undertakes to the Customer that it:
4.1.1 has full power and authority to enter into this Agreement and to perform its obligations hereunder;
4.1.2 will offer the Perkbox Product as available on perkbox.co.uk to the Customer in accordance with Good Industry Practice; and
4.1.3 will perform the Services in accordance with Good Industry Practice and that the same shall be carried out by suitably qualified, trained, skilled and experienced Staff and be performed in a timely and professional manner.
4.2 Perkbox makes no warranty or representation as to the ability or suitability of any Perk Provider to provide any particular Perk or service to Customer or its Employees. Perkbox will not be liable for any act or omission committed by any Perk Provider in connection with the development of the Perkbox Product or the provision of the Perks thereunder which could give rise to any claim, liability or loss incurred or suffered by Customer or any of its Employees. Customer’s and Employees’ statutory rights with respect to Perk Providers shall be unaffected.
4.3 Perkbox agrees to perform its hosting, management and delivery of the Perkbox Product in accordance with Good Industry Practice, and that the same shall be carried out by suitably qualified, trained, skilled and experienced Staff and be performed in a timely and professional manner, and subject to reasonable requests from Customer.
5. OBLIGATIONS OF CUSTOMER
5.1 Customer represents, confirms and undertakes to Perkbox that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.
5.2 Customer agrees to notify Perkbox of any changes to operating procedures or other factors, which could have an impact on the performance of the Services by Perkbox or any activities likely to generate a dramatic increase in the volume of enquiries to that of normal operations.
5.3 Customer will at all times comply with, and will ensure that its Employees will comply with the End User Terms and Conditions as detailed in the URL below
5.6 Customer shall use reasonable endeavours to promote a wide spectrum of the Perks and the Perkbox Product to its current and new Employees each year throughout the Term.
6. MONITORING OF THE SERVICES
The Parties or their representatives shall maintain regular communication in order to monitor the performance of the Perkbox Product and the Services in accordance with this Agreement.
7. FEES AND PAYMENTS
7.1 Customer shall pay Perkbox the Fees in the amounts as agreed in the Order Form by Perkbox.
7.2 All Fees payable shall be exclusive of Value Added Tax and any other similar taxes, duties or levies or other deductions or withholdings, which taxes shall be charged at the rate and in the manner prescribed by law subject to receipt of relevant documentation required by law.
7.3 No reduction in fees or refunds are available if the customer is not able to add as many employees as originally specified in the Order Form when the Programme is first launched and within 30 days thereafter.
7.4 Subsequent to 30 days from the launch of the Programme, the Customer is able to reduce the number of employees on the platform through the Perkbox admin dashboard feature. In the case of a monthly invoicing and payment structure, the Customer has until the end of the previous month to inform Perkbox of the reduction in number of Employees and Perkbox will subsequently adjust the monthly invoice from the subsequent month to reflect the new number of Employees. For the avoidance of doubt, Perkbox will only edit the monthly Fees as stated in the invoice (tied to the number of Employees) subsequently once per month based on the information received from the Customer till the end of the previous month. No changes to the invoice shall be made should the Customer not inform Perkbox of the change in the number of Employees.
7.5 Should the fees be paid annually, no refunds or reduction in Fees are available for any reduction in active Employees using the platform during the Term.
7.6 Should the number of Employees on the platform reduce to less than 90% of the original agreed in the Order Form, the Fees will not be further reduced.
7.7 Perkbox runs regular audits to ensure the number of Employees on the platform are as per the number agreed in the Order Form. Should the number of Employees increase beyond the number specified in the Order Form, Perkbox will increase the billing associated with the account for subsequent months on the rate originally agreed in the Order Form and has the right to retroactively bill the Customer for any additional Employees for the period that they have been live on the platform. For example, if Customer and Perkbox agreed a fee for 100 Employees from March 2016 and in May 2016, Perkbox audits show that 110 employees have been using the platform for March, April and May - Perkbox shall bill the customer for the 10 additional customers for March, April and May and subsequent months and the Customer shall be liable to pay such sum.
7.8 In the event of any payment required to be made by the Customer to Perkbox under this Agreement not being received on or before the due date for payment as specified in this Agreement, interest shall become payable thereon both before and after judgment. The interest rate would be fixed at four per cent above the base rate of Barclays Bank PLC (or, if such rate is not available, the nearest equivalent rate of another clearing bank in the City of London nominated by the Party not in default). The interest calculation period would be from the due date for payment to the date when payment is actually received. In the event of any other rate being substituted for the base rate, then such substituted rate shall apply for the purpose of this Clause 7.4.
7.9 Should the Customer wish to cancel this Agreement before the expiration of the Term, they are liable to pay the complete Fees for the remainder of the Term.
7.10 Customer understands that should Perkbox observe patterns of abuse from the Customer, it has the right to terminate the Agreement with immediate effect and the Customer will be liable to pay the Fees for the remainder of the Term.
7.11 Save as otherwise set out herein, Perkbox may increase the Fees at any time during the Term by giving Customer at least 60 days’ written notice. If Customer does not agree to the increase in Fees, Customer may terminate this Agreement by giving Perkbox at least 30 days’ written notice prior to the date the new Fees take effect. Failure by Customer to terminate this Agreement in accordance with this Clause 7.11 shall be acceptance by Customer of the increase in Fees.
8. APPROPRIATE REGULATOR RULES AND FSMA STATUS
8.1 Customer acknowledges that some of the Services provided by Perkbox under this Agreement may be subject to the Appropriate Regulator Rules as detailed in the Handbook.
8.2. The Parties accept that some communications may be Financial Promotions and as such subject to section 21 of the FSMA, the Financial Promotion orders and the Handbook.
9. PERK PROVIDERS
9.1 Perkbox shall retain full and final control over which Perk Providers shall provide Perks under the Perkbox Perks Programme to the extent permitted by law.
10.1 Customer agrees that Perkbox is entitled to do anything which, in the opinion of Perkbox, is reasonable and necessary in order to perform its obligations under this Agreement or to act in accordance with any applicable laws, rules, regulations, authorisations, consents or practice as may reasonably be appropriate. Customer agrees that it shall approve and confirm everything reasonably and lawfully done by Perkbox in the exercise of such discretion.
10.2 Perkbox does not provide any specialist advice (for example, advice for accounting, regulatory, legal, pensions or taxation matters) (collectively, “Specialist Advice”) in relation to the Services, any of the Perks, the Perkbox Product or Customer’s use thereof. Customer shall be responsible for obtaining its own Specialist Advice where necessary and Perkbox shall not be liable to Customer or its Employees in relation to any such Specialist Advice provided by third parties to the Customer in relation to the Perkbox Product, the Perks, or the Services.
10.3 Perkbox shall be entitled to believe that any information and/or instructions given or purported to be given by an individual or person who is or purports to be and is reasonably believed by Perkbox to be a director, duly authorised Employee or authorised agent of Customer have been properly authorised by Customer.
11. PROVISION OF INFORMATION
11.1 Perkbox will rely on Customer to ensure that any information made available to Perkbox for the purposes of performing its obligations under this Agreement is information that Customer is legally entitled to provide for the purpose for which it is intended to be used and without committing a breach of any obligation owed by Customer to a third person or otherwise infringing any legal, regulatory or equitable rights of any third parties whatsoever and that it is true, fair, complete and accurate and not misleading in any material respect. If Customer subsequently becomes aware that any such information is not correct it will notify Perkbox immediately.
11.2. The Customer will not deconstruct and then reconstruct or alter in any way or add to an advertisement so that the resulting advertisement then breaches the Handbook or UK law or the Committee of Advertising Practice (CAP) code. The Customer shall not add to, deduct from, or alter the description of any product or service in any advertisement.
11.3 The Parties agree that since Perkbox’s reputation with Perk Providers is reliant on the quality of advertisements and financial promotions that are used, therefore such communications are done in a legal and compliant way.
11.4 Perkbox shall be entitled to assume that matters that may be material, for disclosure or otherwise, in the context of this Agreement will be brought to its attention and, furthermore, it will only provide its services on the basis of information disclosed to it.
12. LIMITATION OF LIABILITY
12.1 Except in the case of breach of contract, fraud, negligence, bad faith or wilful default by Perkbox, Perkbox shall not in any circumstances be liable (whether in contract, tort or otherwise) for loss or damage howsoever arising and of whatsoever nature (including, without limitation, any indirect or consequential loss or damage, loss of profits, loss of contracts, loss of data, loss of operation time or loss of use of any equipment or process) suffered or incurred by Customer or any of its Employees or any other third party by reason of the carrying out by Perkbox of its obligations under this Agreement.
12.2 Where Perkbox is held liable for any loss or damage under this Agreement then Perkbox’s maximum aggregate liability will be limited to 100% of the Fees payable by Customer to Perkbox under this Agreement in the 12 months preceding the event giving rise to the liability.
12.3 The foregoing limitations of liability shall not in any way affect any rights that Customer may have against a Perk Provider.
12.4 Nothing in this clause 12 or in this Agreement shall limit or exclude either Party’s liability in respect of claims for death or personal injury arising from the other Party’s negligence, for fraudulent misrepresentation, or any other liability which may not be excluded by law.
12.5 In the event that Customer notifies Perkbox of an error or problem with any of the Services provided by Perkbox under this Agreement, Perkbox will use best efforts to correct such errors or problems but will not be liable for any costs or losses as a result of delays in dealing with issues logged.
13. INTELLECTUAL PROPERTY
Unless agreed otherwise in writing between the Parties:
13.1 Customer shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in the documents or other material and data or other information provided to Perkbox for the purpose of performing its obligations under this Agreement. Customer shall be deemed to have granted Perkbox a license to use any such Intellectual Property, documents or other material and data or other information for the purposes of performing its obligations under this Agreement.
13.2 Perkbox shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in all documents or other material and data or other information and devices or processes provided or created by Perkbox in the provision of the Services during the term of this Agreement. For the purposes of this Clause, Intellectual Property Rights shall include all rights subsisting in relation to the Services, the Perkbox Product or the business of Perkbox generally.
13.3 Perkbox hereby grants Customer a limited, non-exclusive, revocable, royalty free licence in the United Kingdom to use and make available, communicate, promote, display, link to the Perkbox Product for internal use only for the benefit of its Employees and not to the public at large, in accordance with the terms of this Agreement, subject to the following additional restrictions:
13.3.1 Customer shall not sell, resell, rent, lease or any way make available for a fee or other remuneration, the Perkbox Product or any of the Perks to any of your Employees or any third party without the express written consent of Perkbox;
13.3.2 Customer shall have no right to sublicence the Perkbox Product without the express written consent of Perkbox.
13.4 Customer agrees that Perkbox may use the Indicia for the purpose of performing its obligations under this Agreement, subject to the Customer giving its prior approval to the format and use of any document, whether prepared in hard copy or electronically, in which the Indicia are used. Customer warrants that such authorised use will not contravene any Intellectual Property Rights held by any third Party in relation to the Indicia, and that it will indemnify Perkbox in relation to any costs, claims, liabilities or charges Perkbox may incur as a result of Perkbox’s use of the Indicia in accordance with the terms of this Agreement.
14. CONFIDENTIALITY AND ANNOUNCEMENTS
14.1 During the Term of this Agreement and at all times after its termination, the Parties will:
14.1.1 keep secret all Confidential Information;
14.1.2 not communicate or disclose any Confidential Information to any person save in relation to any of its officers, employees, agents or sub-contractors who are involved in the provision of the Services;
14.1.3 not use Confidential Information other than for the purposes of this Agreement; and
14.1.4 use best endeavours to prevent any unauthorized publication, disclosure or use of any Confidential Information.
14.2 The restrictions in Clause 14.1 will not apply to:
14.2.1. any disclosure required for the proper performance of the Parties’ obligations in the course of this Agreement;
14.2.2 any disclosure made to any person or third party authorised by both Parties to possess the relevant information;
14.2.3 information or knowledge that was known to either Party prior to the date of this Agreement; and
14.2.4 information that is in the public domain other than through the fault or default of either Party.
14.2.5 any disclosure required or requested by any court of competent jurisdiction, regulatory or supervisory authority or in accordance with applicable law, rules or regulations
14.3 Customer accepts that the Perks as negotiated by Perkbox with the Perk Providers constitute Confidential Information and are proprietary to Perkbox. Customer shall not approach the Perk Providers directly with a view to offering the Perks during the Term of this Agreement.
15. TERMINATION AND EFFECTS OF TERMINATION
15.1 Subject to Clause 16, if either Party commits:
15.1.1 a material breach of this Agreement and, in the case of such a breach which is capable of remedy, fails to remedy the breach within 14 days (or such longer period as both Parties may agree in writing) of written notice to do so; or
15.1.2 commits a series of breaches which, taken together, are material in their effect,
then, without prejudice to any other rights or remedies, the non-defaulting Party shall have the right to terminate this Agreement. In respect of this clause and for the avoidance of doubt a breach specifically includes (but is not limited to) a breach of a term of this Agreement, and a breach in following the law in respect of any advertisement, financial promotion or regulated activity.
15.2 Without prejudice to any other rights or remedies it may have, either Party may terminate this Agreement with immediate effect if:
18.104.22.168 The other Party becomes bankrupt or insolvent or has a receiving order made against it other than for the purposes of reconstruction or amalgamation;
15.2.2 The other Party makes any voluntary arrangement with, or any assignment in favour of, its creditors or becomes subject to an administration order;
15.2.3 A court makes any composition in satisfaction of the debts of, or a Perkbox Product of arrangement of the other Party’s affairs;
15.2.4 An encumbrancer takes possession of, or a receiver is appointed over, any of the other Party’s property or assets;
15.2.5 The other Party ceases, or threatens to cease, to carry on business;
15.2.6 Or any event analogous to any of the foregoing under the law of any jurisdiction occurs in respect of the other Party.
15.3 Any termination of this Agreement (howsoever occasioned) shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination or which shall survive the expiration or termination of this Agreement.
15.4 The Term of the Agreement shall be as per the Term described in the Order Form.
16. NO PARTNERSHIP, AGENCY OR EMPLOYMENT
Save as provided for in Paragraph 11.1, nothing in this Agreement or any arrangement contemplated by it shall constitute a Party a partner, agent, fiduciary or employee of the other Party and the execution, completion and performance of this Agreement shall not confer on any Party any power to bind or impose any obligations to any third parties on the other Party or to pledge the credit of the other Party.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person other than the Parties shall have the right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999. For the avoidance of doubt, the application of the Contracts (Rights of Third Parties) Act 1999 is specifically excluded from this Agreement, although this does not affect any right or remedy of any third party that exists or is available apart from that Act.
18. ENTIRE AGREEMENT
18.1 This Agreement, the documents and links to web-based documents referred to in it including without limitation the Order Form, this Perkbox Member Perks Agreement and the Perkbox End User Terms and Conditions, and any additional terms provided as part of the Perkbox Product including the additional terms for each individual Perk that are presented to Customer and its Employees on behalf of Perkbox, constitute the entire agreement and understanding of the Parties and supersede any previous agreement between the Parties relating to the subject matter of this Agreement but without prejudice to the rights and liabilities of the Parties accrued before the date of this Agreement. In the event of a conflict between the terms of the documents forming this Agreement, the Order Form shall take precedence, followed by the Perkbox Member Perks Agreement, followed by the Perkbox End User Terms and Conditions, followed by any additional terms provided as part of the Perkbox Product, including the terms for each individual Perk.
18.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced
20.1 No failure to exercise or any delay in exercising any right or remedy under this Agreement shall operate as a waiver of it or of any other right or remedy under it. No single or partial exercise of any such right or remedy shall prevent any further or other exercise of it or the exercise of any other right or remedy.
20.2 Any waiver given by either Party must be in writing and expressly stated by an authorised employee of the other Party to be a waiver. Such a waiver will only apply to the specific events to which it is stated to relate and not to any other events, whether past or future.
20.3 The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.
21. GOVERNING LAW & JURISDICTION
21.1 This Agreement is governed by and shall be construed in accordance with the laws of England and Wales.
21.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement (or any documents entered into in accordance with its provisions) and, for such purposes, irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
Version: 18 January 2017
Schedule 1: The Services
Perkbox shall provide the following Services:
The negotiation of the Perks with the Perk Providers to form part of the Perkbox Product. The Perks may be subject to amendment or removal, or, subject to the Customer’s approval, replacement or addition during the Term;
The operation of a Perkbox Product email helpline and general telephone helpline for Employees during working hours;
The management of enquiries from Employees to the telephone helpline regarding the Perkbox Product;
The handling of any issues or complaints from Employees relating to the Perkbox Product or any of the Perk Providers within it;
The regular reporting of usage statistics and Perkbox Product developments to the Customer; and
The provision of approved copy of the Perkbox Product and the Perks for use in internal Customer promotions to raise Employee awareness and usage of the Perkbox Product.