Group Terms and Conditions
Perk Hero Software Inc. (“Perk Hero” or the “Company”)
Last Updated: November 30, 2020
These Terms and Conditions (these “Terms” or “Agreement”)) set forth the legally binding terms between Perk Hero Software Inc. (the “Company”, “Perk Hero,” “us,” or “we”) and your fundraising group and you as the program administrator (the “Group” or “you”) for the Group’s participation in the Perk Hero Gift Card fundraising program (the “Program”).
By checking the box “I have read, understand and agree to the Group’s Terms and Conditions” on Perkhero.com you agree to be bound by these Terms. These Terms create a binding legal agreement between you and the Company, and any notices and disclaimers displayed on the Perk Hero Website.
(a) The Group agrees to provide Perk Hero with accurate, complete and current information regarding the Group and its Group administrator (the “Group Administrator”), as set out in section 2 below, and the beneficiary (if different from the Group) (the “Beneficiary”) failing which, Perk Hero may terminate the Group’s participation in the Program.
2. Group Administrator
The Group shall appoint a Group Administrator. The Group represents and agrees that: (a) the Group Administrator is an individual that has reached the age of majority according to the laws where he or she resides and has the full power and authority to bind the Group; and (b) the Group Administrator is not a non-resident of Canada within the meaning of the Income Tax Act (Canada).
3. Intellectual Property Rights
The design of the Perk Hero mobile application (the “App”), and the websites located at Perkhero.com and Perkhero.io (the “Websites”, together with the “App”, hereinafter referred to as the “Platform”) and all material, content and information it contains or used in connection with it including but not limited to, the domain name Perk Hero, as well as all software, graphics, photographs, images, animations, videos, audio, texts and logos (collectively the “IP”) are owned by Perk Hero, its affiliates or licensors, as applicable, and are protected by copyright, trademark, patent or other intellectual property rights and shall not be used other than for the lawful use of the Platform in accordance with this Agreement or subject to the prior written consent of Perk Hero.
4. Perk Hero Emails, Notifications and Advertising
Any communications relating to the Group’s Program, such as system emails and Program-related notifications, will be sent to the Group Administrator, and the Group will be solely responsible for the dissemination of any such communications to the Group’s supporters (each being a “Supporter” and collectively, the “Supporters”).
5. Donations and Payment
(a) As part of the registration process, Supporters shall be prompted to select a beneficiary (a “Beneficiary”) (which may be the Group, but is not required to be) to receive their donations made through the Program. The Supporter may re-designate the Beneficiary to which such donations will be made at any time before the funds are remitted to the Beneficiary pursuant to paragraph 5(d) below.
(b) Pursuant to a separate agreement between Perk Hero and each Supporter (the “Supporter Terms & Conditions”), each successful Perk Hero gift card order placed by a Supporter contains a donation amount made by a Supporter to a Beneficiary (the “Donations”). Pursuant to the Supporter Agreement, the Supporter appoints Perk Hero as his or her agent to hold these Donations until they are remitted to a Beneficiary on behalf of the Supporter.
(c) Perk Hero will periodically remit the Donations to the Beneficiaries. In so doing, it will be acting solely as agent on behalf of the Supporter and hence the donating party shall at all times be the Supporter. Perk Hero’s role shall be strictly limited to processing the various orders placed by the Supporters, holding the Donations on their behalf until remitted to the Beneficiaries, and remitting the Donations to the Beneficiaries. Perk Hero is not a registered charity and hence will not issue any tax receipts in connection with the Donations made by Supporters. Where a Beneficiary is a registered charity, Perk Hero will provide all necessary reporting to the Beneficiary when remitting funds to enable it to issue an official donation receipt to the Supporter. However, the Beneficiary has sole discretion to determine whether it will issue an official donation receipt in respect of any gift from a Supporter. You further acknowledge and agree that the Canada Revenue Agency has not rendered any decision regarding the deductibility of Donations by Perk Hero Supporters as charitable donations for tax purposes. And as such, You acknowledge and agree that any tax receipts issued by the Group shall be so issued at the Group’s sole risk, and shall not engage the liability of Perk Hero in any manner.
(d) Payment of Donations
(i) Perk Hero shall pay the Donations to the Beneficiary, via electronic funds transfer (“EFT”) or by any other payment method deemed acceptable by Perk Hero.
(ii) Adjustment: Perk Hero shall deduct from the Donations charges incurred by Perk Hero in connection with the processing and delivery of Supporter orders, which charges may include, but are not limited to, shipping charges and fees associated with the processing of credit, debit or any such other method of payment.
6. Returns and Refunds
All gift cards and/or other prepaid products, whether plastic or electronic, purchased through the Program (collectively the “Cards”) are non-refundable, unless otherwise decided by Perk Hero.
8. Participating Retailers
(a) Change in Participating Retailers
Retailers participating in the Program (a “Participating Retailer”) can change at any time. Perk Hero does not guarantee that any Participating Retailer will remain a Participating Retailer. The Group is responsible to inform all the Supporters that the Cards shall be subject to the limitations, terms, conditions and/or rules imposed by the issuing Participating Retailer. Perk Hero will endeavour (although is no way obligated) to post any applicable limitations, terms, conditions and/or rules of a Participating Retailer on the Websites.
(b) Limitation of Liability re: Participating Retailers
9. Prohibited Acts
The following acts are strictly prohibited:
(a) the sale, assignment or transfer of this Agreement;
(b) the submission of any false, inaccurate, incorrect or misleading information;
(c) the unlawful access to, or interference with, Perk Hero’s systems and/or communications including, without limitation, causing a breach of security with respect to the Platform or any Group or Supporter account;
(d) the use, posting or dissemination on the Platform or the participation in the Perk Hero gift card program of: any language that is abusive, hateful, profane, obscene, or slanderous, or the impersonation of other Supporters; anything of an advertising or promotional nature; hyperlinks; matters that infringe any intellectual property right of any third party; viruses or computer programs that could affect the function of external computers and spam;
(e) the financing of a terrorist or suspected terrorist organization;
(f) providing access to any unauthorized third party to the Program or any information, data, text, links, images, software, communications and other content which belongs to Perk Hero;
(g) engage in any activity that does not comply with Canadian law or otherwise engage in any illegal, manipulative or misleading activity through the use of the Program, such as money laundering, or committing fraud; and
(h) any activity that Perk Hero may deem as being contrary to the purpose of the Platform and the Program.
10. Discontinuation of the Program or Termination of Use
Perk Hero may decide at any time to:
(a) discontinue transmitting all or any part of the content related to the Program;
(b) change, discontinue or limit access to the Program or any functionality, feature or other component thereof; or
(c) suspend or terminate the Group’s participation in the Program, for any breach or violation of this Agreement or any action that Perk Hero may deem to be contrary to the business interests or reputation of Perk Hero or the Program.
11. Limitation of Liability
(a) Disclaimer of Warranty. The Platform is provided solely on an “AS IS” and “AS AVAILABLE” basis, and Perk Hero disclaims any and all warranties, regarding the operation of, or any material contained on the Platform. Perk Hero does not warrant that the Platform and/or the services (the “Services”) it provides will be uninterrupted, timely or error-free, that defects will be corrected or that the Platform, the Services, or electronic mailings sent on behalf of Perk Hero will be free from bugs.
(b) Disclaimer of Liability. Perk Hero, its affiliates or any of their respective directors, officers, employees, representatives, or any third party content/service providers shall not in any way be liable for any injury, loss, or direct, indirect damages resulting from, arising out of or in any way in connection with the use of the Platform.
The Group agrees to defend, indemnify and hold harmless Perk Hero, its parent corporation, subsidiaries, and any affiliate, and their respective directors, officers, employees, shareholders, agents and representatives from and against all liabilities, actions, claims and expenses, including legal fees, resulting from, arising out of or relating to a Supporter’s use of the Platform and any breach of these terms and conditions or any third party rights.
13. Third Party Links
The Platform may contain links to websites that are neither owned, controlled or operated by Perk Hero or its affiliates. They are provided for convenience purposes only and the use of these links will cause the user to leave the Platform. The Group agrees that Perk Hero and its affiliates are not responsible in any way for any content, materials or information contained on any such website. The Group agrees that use of any links is at the sole risk of the user.
(a) Perk Hero validates and confirms each order prior to fulfillment of the Cards to ensure 100% accuracy. In the event of an apparent error or omission in the fulfillment of Cards, the Group will be fully responsible to report to Perk Hero any such error or omission within twenty-four (24) hours following delivery of the Cards. In the event the Group fails to notify Perk Hero, Perk Hero shall not be liable in any way.
15. Notices/Complaints/Claims/Disputes: All notices, complaints and claims shall be sent to Perk Hero via the appropriate Customer Support form that can be found on the Websites. Alternatively, all such notices, complaints and claims may also be submitted by email at [email protected] All replies will be sent to the email address on record.
16. Tax Matters
(a) Tax Advice: You acknowledge that nothing contained either in this Agreement or on the Platform shall constitute tax advice, and You further agree that Perk Hero shall not be liable for any tax-related information whether contained on, or omitted from, the Platform.
(b) CRA Compliance for Registered Charities: If your Group is a Canada Revenue Agency (CRA) registered charity (but not a private foundation), and your Perk Hero program will be operated substantially by volunteers (>90%), then your use of the Program should not contravene the restrictions imposed on the business activities of registered charities. In any case, we recommend and encourage you to review the Canada Revenue Agency’s policy statement, CSP-019 (https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/policies-guidance/policy-statement-019-what-a-related-business.html)
The division of this Agreement into sections, subsections and Schedules, and the insertion of headings, are for convenience of reference only and shall not affect its construction or interpretation.
18. Entire Agreement
This Agreement, including any Schedules and documents referred to in this Agreement or attached hereto, constitutes the entire and exclusive statement of agreement between the parties with respect to its subject matter and there are no oral or written representations, understandings or agreements relating to this Agreement which are not fully expressed herein. The parties agree that unless otherwise agreed to in writing by the party intended to be bound, the terms and conditions of this Agreement shall prevail over any contrary terms in any purchase order, sales acknowledgment, confirmation or any other document issued by any party affecting the purchase or sale of Products hereunder.
19. Amendment and Waiver
No amendment or waiver of this Agreement shall be binding unless executed in writing by both parties. A waiver by any of the parties of any covenants, conditions or agreements to be performed by the other party or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. Any party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver of forfeiture of any such or other rights.
If, but only to the extent that, any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent, and such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement.
21. Assignment and Enurement
(a) This Agreement shall not be assigned, in whole or in part, by the Group without the prior written consent, in writing, of Perk Hero and any purported assignment made without such consent is void and of no effect. Perk Hero, in its sole and unfettered discretion, may withhold its consent to any assignment.
(b) Perk Hero may assign its rights and obligations pursuant to this Agreement on notice to the Group, without consent, and upon such assignment the assignee shall assume all of Perk Hero’s rights and obligations under this Agreement and Perk Hero shall be released from this Agreement, so long as such assignment does not create a material adverse effect on the operations or business of the Group.
(c) This Agreement shall be binding on the parties and their respective successors and assigns.
22. Relationship of Parties
Nothing in this Agreement shall either render, or be interpreted or construed to mean, that the parties are partners, joint venturers, trustee/beneficiary, employer/employee, or principal/agent of the other. Except as specifically provided in this Agreement, no party shall have any authority whatsoever to obligate or commit the other party, contractually or otherwise, and no party shall do anything whatsoever to represent to any Person that they have any authority to so obligate or commit the other party. Each of Perk Hero and the Group agree that each of them are independent contractors. The parties shall only act within the scope of their actual and express authority under this Agreement, and no party shall represent to any Person that it has any authority, or permission, or consent to represent, act on behalf of, or have a commercial relationship with the other except as authorized in writing by the other party to this Agreement. Each party shall pay all wages, salaries and other amounts due its respective employees and shall be responsible for all obligations respecting them relating to income tax withholdings, unemployment insurance premiums, worker’s compensation, health care and pension plan contributions and other similar responsibilities.
The following sections shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: sections 3 (Intellectual Property Rights), 5 (Donations and Payment), 10 (Discontinuation of the Program or Termination of Use), 11 (Limitation of Liability), 12 (Indemnity), Section 16 (Tax Advice), and Section 33 (Miscellaneous).
24. Time of Performance
Time is hereby expressly made of the essence with respect to each and every term and condition of this Agreement.
All notices and consents provided for shall be given in writing and delivered by personal delivery, prepaid first class registered or certified mail, by facsimile, by regular mail or e-mail. Notices delivered by facsimile shall be considered to have been received upon the sender obtaining a bona fide confirmation of such delivery. Notices delivered by e-mail shall include the following and shall only be effective if the recipient provides by e-mail a confirmation of delivery and the date of acceptance of the delivery: (i) sender’s name, address, telephone number, fax number and e-mail address; (ii) date and time of the transmission; and (iii) the name and telephone number of a person to contact in the event of transmission problems. Delivery of notices after 4:00 p.m. at the address being served constitutes delivery the following day. Notices delivered by regular mail shall be deemed received on the fifth day after the notice has been mailed. The address for notice shall be as follows:
In the case of Perk Hero: Perk Hero Software Inc.
555 Burrard St Suite 1755,
Vancouver, BC V7X 1M9
Attn: Legal Dept.
Email: [email protected]
Any party may from time to time change its address for notification purposes by giving the other party written notice of the new address and the date upon which it will become effective.
All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to any party at law, in equity or otherwise, and may be enforced concurrently or from time to time.
All amounts referred to in this Agreement are in Canadian dollars and are payable in Canadian dollars unless otherwise agreed to by the parties in writing.
28. Calculation of Time Period
When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next Business Day. If under this Agreement any payment or calculation is to be made or any other action is to be taken on a day which is not a Business Day, that payment or calculation is to be made, and that other action is to be taken, as applicable, on or as of the next day that is a Business Day.
The parties hereto have requested that this Agreement and all correspondence and all documentation relating to this Agreement, be written in the English language. Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.
In the event of any inconsistencies, conflicts or contradictions between the provisions of this Agreement and any documents created pursuant to, or as required under, this Agreement, the provisions of this Agreement shall govern and prevail.
31. Compliance with Laws
The Group shall strictly comply with, and abide by, all consents, licenses, permits that may exist concerning its activities and/or performance obligations under this Agreement, and the Group shall perform its obligations under this Agreement and otherwise conduct its affairs and business in any connection with this Agreement, in strict compliance with all laws, by-laws, regulations, orders, judgements and governmental rulings and decrees.
We may, without prior notice or liability to you, revise these Terms from time to time in our sole discretion, subject to Applicable Laws . When we revise these Terms, we will notify the Group via email, the Platform or any other method we deem to be reasonable in the circumstances. Except as otherwise expressly stated by us, all changes to these Terms are effective immediately.
The laws of the Province of British Columbia, Canada, excluding its conflicts of law rules, govern this Agreement. The exclusive jurisdiction and venue of any action arising out of or related to this Agreement will be either the state or federal courts in British Columbia, Canada, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. This Agreement constitutes the entire agreement between us and you. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. You may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.