Perkbox Terms & Conditions of Supply

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, and/or any Special Terms (if applicable).

“Add-on” means including but not limited to upgrades to Flexi Points, integrations, or any additional features which may become available to the Customer after Commencement Date of this Agreement.

“Billing Period(s)” means the period set out on the relevant Order Form (monthly, quarterly or yearly) commencing on the Commencement Date (and/or the Renewal Date, as the case may be) in respect of which Perkbox issues invoices for Charges under this Agreement unless otherwise agreed between the parties.

“Business Day” means a day other than a Saturday, Sunday or public holiday in (a) England when banks in London are open for business where the Agreement is signed with the UK entity or (b) Australia when banks in Sydney are open for business where the Agreement is signed with the Australian branch.

“Charges” means including but not limited to the Subscription Charges, Flexi Points charges, Perkbox Platform charges, additional End User Licence charges, Add-on Charges and/or any other charges payable by the Customer for the supply and use the any of the Programme(s) and/or Services by Perkbox, set out on the relevant Order Form or via use of a Perkbox Programme.

“Commencement Date” means the latest date when the Order Form is signed by the Customer or both parties at which point the Agreement shall come into existence.

“Conditions” means these terms and conditions.

“Customer” means the organisation procuring the Services from Perkbox and named as such on the 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 (“GDPR”) (iii) the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; (iv) Privacy Act 1988 (Cth) (Australia) 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 or any other supervisory authority with jurisdiction in the United Kingdom and Australia (as applicable), 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 of the Customer, who are designated by the Customer to use and access the Perkbox Platform.

“End User Data” means (i) any data relating to the End Users provided by the Customer to Perkbox under, or in connection with, this Agreement (if any) or (ii) data provided by End Users independently to Perkbox by creating a Perkbox account.

“End User Licence” means the individual End User account on the Perkbox Platform, associated with an End 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 website, including any policies, such as Privacy policy and/or Acceptable use policy, applicable to the use of the Perkbox Platform by the End Users.

“First Payment Date” means the date when the first payment amount shall become payable, as specified on the Order Form. If no such date is specified on the Order Form, the First Payment Date shall be the Launch Date (or the Renewal Date, as applicable), whether or not the Launch has occurred.

“Flexi Points” means the monthly allowance of points given to End Users to spend on Flexi Perks on the Perkbox Platform.

“Flexi Perks” means the range of perks available to End Users, purchased solely through their Flexi Points allowance.

“Future Effective Date” means the date (if any) agreed by the parties for the Services to commence as shown on the Order Form, such date to not be more than 3 months after the Commencement Date of the Agreement.

“Initial Term” means the period specified as such on the Order Form starting from the Commencement Date or Future Effective Date.

“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.

“Minimum Licences Commitment” means the minimum number of End User Licences specified on the Order Form in respect of each Programme.

“Month” means calendar month.

“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.

“Perkbox” means Perkbox Limited, a company incorporated in England and Wales with registered company number 7355963 whose registered office address is at 6 Devonshire Square, London, EC2M 4YE and/ or a company registered as a Foreign Company (Overseas), ARBN 631 404 174, Locality of Registered Office Melbourne VIC 3000; as may be amended and communicated to Customers from time to time.

“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 the 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 including but not limited to the Employee Perks Programme, the Reward Programme, Recognition Programme, and any other web-based product introduced and 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.

“Renewal Agreement” means an agreement between Perkbox and the Customer to extend an existing agreement or to renew previously expired or terminated agreement between the parties for the provision of the Services,

“Reward Programme” means the online reward scheme on the Perkbox Platform as defined in Appendix 2.

“Services” means the provision of the Programme(s) and/or Services specified on the relevant Order Form or Add-on services provided by Perkbox pursuant to this Agreement or via online acceptance of Programme specific terms and conditions.

“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, 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” 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.
If there is any inconsistency or conflict between any of the provisions of these Conditions, any Order Form and/or any Special Terms, the following order of priority shall apply: (i) the Special Terms; (ii) Order Form (iii) the Programme Specific Terms and Conditions; (iv) and these Conditions

2. Acceptance of Agreement

By accepting this Agreement, the Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents and warrants that they have the authority to bind such entity and its affiliates to these Conditions and Perkbox has relied on this representation.

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 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.

3.3 Any demos, drawings, descriptive matter or advertising produced by Perkbox are produced for the sole purpose of giving an approximate idea of the Programmes, Perks and functionalities of the Perkbox Platform. They shall not form part of the Agreement nor be contractually binding.

4. Term

4.1 This Agreement shall start on the Commencement Date until (unless terminated earlier in accordance with its terms) the end of the Initial Term and thereafter this Agreement shall renew for successive terms of 12 months (each a “Renewal Term”).

Where there is a Future Effective Date, this Agreement shall renew for successive terms of 12 months (each a “Renewal Term”) from the Future Effective Date.

For the avoidance of doubt this Agreement shall be in force and binding on the parties from the Commencement Date, even though the Future Effective Date is after the Commencement Date.

4.2 Either party may terminate this Agreement by giving to the other party not less than 90 days’ written notice of such termination before the end of the Initial Term or the current Renewal Term (as applicable) only.

5. Supply of services

5.1 The Customer may, from time to time, request any of the Programmes and/or Services by submitting a request in writing. Following receipt of a request, Perkbox shall, as soon as reasonably practicable, either (i) issue an Order Form or amendment to the existing Agreement; or (ii) inform the Customer that it is unable to accept the request.

5.2 Without prejudice to clause 5.3, Perkbox shall supply to the Customer the Programmes and/or the Services specified in an Order Form from the date specified in the relevant Order Form.

5.3 The Perkbox Platform shall become available to the End Users to access the relevant Programme(s) from the Commencement Date or Future Effective Date as agreed between the parties.

5.4 Perkbox obligations:

Perkbox Shall:

5.4.1 provide the Services in accordance with this Agreement in all material respects with reasonable care and skill;

5.4.2 use reasonable endeavours to procure an attractive selection of goods and services of reputable Suppliers; and

5.4.3 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 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.

5.6 Perkbox shall have the right to make any changes to the Programme(s) and/or the Services from time to time: (i) to reflect changes in the Suppliers, their offering and/or their conditions of supply to Perkbox, (ii) to add new Programme(s) and/ or Services from time to time (iii) to address its customers’ or the End Users’ needs; (iv) to comply with any Applicable Laws. In any case, such changes shall not materially affect the nature or quality of the Programme(s) and/or the Services.

5.7 Any Perks are provided on “as is basis” and Perkbox makes no warranty or representation as to: (i) the availability of any specific Perks and/or Suppliers and/or (ii) the quality, merchantability, fitness for a particular purpose, suitability of any Perks and/or any Suppliers.

5.8 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.

5.9 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:

5.9.1 it shall be solely responsible for notifying Perkbox about its intention to extend the offering to such personnel;

5.10 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 reasonably 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 (if any) 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 communicate to the End Users that 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;

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. This excludes promotion of Perkbox as perk by the Customer; and

6.1.8 not re-sell access to the Perkbox Platform to any End Users and/or other third parties.

6.2 The Customer acknowledges and agrees that:

6.2.1 the End User Perkbox Terms and Conditions shall govern the relationship between Perkbox and the End Users and that any Supplier Terms shall apply to any contractual relationships created as a result of a 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

6.2.2 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, (i) suspend access to the Perkbox Platform for an individual End User(s) and/or (ii) suspend the provision of all the Services under this Agreement for the Customer provided that, where practicably possible, Perkbox has provided the Customer with reasonable notice to address any such breach. The Customer’s payment obligations will continue should the Perkbox platform be suspended under this clause.

6.3 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:

6.3.1 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;

6.3.2 be entitled to payment of the Charges despite any such prevention or delay.

7. Flexi Points

7.1 Flexi Points in each End User account has an expiry date. The expiry date of Flexi Points will be communicated to the Customer at the time of purchase or via email. Where no such communication is provided, Flexi Points will expire 12 months from the date of the allowance. Promotional Flexi Point offers may have a shorter expiry; such expiry dates will also be communicated to the Customer at the time of purchase or via email.

7.2 Flexi Points are (i) non-transferrable between End Users (ii) cannot be refunded under any circumstances once allocated to an End User and (iii) are not interchangeable with Reward Points.

8. Intellectual property

8.1 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.

8.2 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.

9. Charges and payment

9.1 In consideration for the provision of the Services, the Customer shall pay Perkbox the Charges in accordance with this clause 9.

9.2 Unless otherwise specified on the relevant Order Form, all amounts payable by the Customer includes amounts in respect of value added tax (VAT) or goods and services tax (GST), as applicable.

9.3 Perkbox shall submit invoices for the Charges (plus VAT/GST) 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.co.uk or to accounts@perkbox.com.au, as applicable 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.

9.4 Each invoice shall include all reasonable supporting information required by the Customer and shall provide the total Charges payable for the relevant Billing Period, including not limited to the number of End User Licences, Subscription Charges, Flexi Points costs, Platform costs, and other associated Programme and Add-on services costs (if any).

9.5 Where there is a Future Effective Date, the Customer shall be billed for all Charges due under this Agreement from the Future Effective Date in line with the Billing Period in Order Form.

9.6 Subscription Charges

9.6.1 Subscription Charges shall be billed in the same invoice as follows:

(a) in advance at the start of each Billing Period, for the Minimum Licences Commitment as set out in the Order Form; and

(b) in arrears at the start of subsequent Billing Periods for any increases in End User Licences above the Minimum Licence Commitment. This will be calculated on a daily pro-rata basis at the rate specified in the Order Form and billed at the frequency specified in the Order Form.

9.6.2 For Customers who pay their Subscription Charges annually, any increases in End User Licences will be billed quarterly.

9.7 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.

9.8 The Customer shall at all times have and maintain a direct debit mandate or credit card in place for making payment due under this Agreement where this method of payment is the agreed payment method listed in the Order Form.

9.9 If the Customer fails to make any payment due to Perkbox under this Agreement by the due date for payment via the agreed payment method as per the Order Form, then, without limiting Perkbox's remedies under clause 13 (Termination):

9.9.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date specified in the invoice until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

9.9.2 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 9.9.2, Perkbox reserves the right to notify the End Users of such suspension or reduction.

9.10 All amounts due under this Agreement shall be payable 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).

10. Renewal

10.1 Unless otherwise notified, Perkbox will increase the Subscription Charges per End User by upto the Retail Price Index (RPI) in UK + 3.9% at the end of the Initial Term or Renewal Term.

10.2 The Renewal Agreement shall include and be based on the Minimum Licences Commitment and additional users as at the date of the Renewal Term.

11. Data protection

11.1 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.

11.2 Perkbox and the Customer each acknowledge that if End User Data is provided by the Customer to Perkbox, this will include personal data.

11.3 Pursuant to clause 11.1, 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, if any End User data is sent to Perkbox, Perkbox shall process such End User Data as a data processor on behalf of the Customer in accordance with clause 11.7 and shall only use such End User Data for the purpose of creation and activation of the End User accounts for the End Users.

11.4 Without prejudice to the generality of clause 11.5, 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.

11.5 Each party shall at all times comply with the Data Protection Laws in relation to personal data of End Users.

11.6 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.

11.7 To the extent Perkbox processes personal data as a data processor on behalf of the Customer during the Agreement and under clause 11.1 above, the parties may choose to enter into a data protection addendum.

12. Limitation of liability and indemnity

12.1 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.

12.2 Subject to clause 12.1, 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.

12.3 Subject to clause 12.1, 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 in the preceding twelve (12) months prior to the incident. If the incident giving rise to the liability happens in the first twelve (12) months of the Agreement, then the total liability of each party shall be the maximum amount which would have been during the initial twelve (12) months of the Agreement. Nothing in this clause 12.3 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 12.3.

13. Termination

13.1 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 the other party:

13.1.1 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;

13.1.2 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;

13.1.3 takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

13.1.4 suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

13.1.5 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.

13.2 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 13.1.1 to clause 13.1.2. 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.

13.3 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. Following such a termination, the Customer will remain liable to Perkbox for the entirety of the outstanding Charges during Initial Term or Renewal Term of the Agreement.

13.4 On termination of this Agreement for whatever reason:

13.4.1 All Charges in respect of the Initial Term or the then Renewal Term (as applicable) shall become immediately due and payable unless the Agreement has been terminated by the Customer under clause 13.1.

13.4.2 the Customer shall immediately pay to Perkbox all of Perkbox's outstanding unpaid invoices and interest and, in respect of Services supplied

13.4.3 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 unless terminated by the Customer under clauses 13.1.1 or 13.1.2;

13.4.4 any licences granted under this Agreement shall cease automatically;

13.4.5 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

13.4.6 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.

14. General

14.1 Force majeure. 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. Should such Force Majeure last greater than thirty (30) days, either party may terminate this Agreement with immediate notice without any penalty.

14.2 Assignment and other dealings.

14.2.1 Save as provided in clause 14.2.2 and/or clause 14.2.3, 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.

14.2.2 Notwithstanding clause 14.2.1, 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.

14.2.3 Perkbox shall be entitled to subcontract its non-material obligations under this Agreement to any third party or engage third party agents or subcontractors without obtaining the Customer’s prior consent.

14.3 Confidentiality.

14.3.1 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 14.3.2. 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.

14.3.2 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 14.3;

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;

(c) If the information was already known or available to the receiving party otherwise than through a breach of any confidentiality obligation owed to the disclosing party;

(d) If the information is or becomes in the public domain other than through any breach of this Agreement; and

(e) If the information is disclosed to the recipient without any obligation of confidence to the disclosing party by a third party who is not itself under or in breach of any obligation of confidentiality.

14.3.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.

14.3.4 Subject to clauses 14.3.5 and 14.3.6, 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.

14.3.5 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.

14.3.6 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 14.3.6 for the term of this Agreement.

14.4 Entire agreement.

14.4.1 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.

14.4.2 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.

14.5 Variation. No variation of this Agreement during the Initial Term or Renewal Term shall be effective unless it is either in writing and signed by the parties (or their authorised representatives) or via electronic acceptance of Perkbox Add-on terms by the Customer.

14.6 Waiver.

14.6.1 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.

14.7 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).

14.8 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.

14.9 Notices.

14.9.1 Any notice of termination of this Agreement by the Customer must be delivered to Perkbox by email on cancellations@perkbox.com or any alternative email address designated by Perkbox for this purpose from time to time and must be given by an authorised signatory of the Customer.

14.9.2 Without prejudice to clause 14.9.1, 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.

14.9.3 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.

14.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.10 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.

14.11 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 either (a) the law of England and Wales for an Agreement signed with the UK entity or (b) the law of New South Wales, Australia for an Agreement signed with the Australian branch.

14.12 Jurisdiction. Each party irrevocably agrees that either (a) 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 for an Agreement signed with the UK entity or (b) 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 for an Agreement signed with the Australian branch.

 

Version: 15 May 2023