User Terms and Conditions
Perk Hero Software Inc. (“Perk Hero”)
Last Updated: February 16, 2020
These User Terms and Conditions (these “Terms”) sets forth the legally binding terms between Perk Hero Software Inc. (the “Company”, “Perk Hero,” “us,” or “we”) and its Users (“Customers”), as well as their access to and use of our platform that enables Customers of the Perk Hero mobile application (the “App“) to open, review, and pay their bills, order and pre-order items, to select their tip option, and to earn and redeem rewards with their compatible mobile device.
By checking the box “I AGREE” or by accessing or using the website located at https://www.perkhero.com (“Website”) in any way, downloading, installing or using the App or any other software supplied by the Company (collectively, with the App, the “Software”), accessing or using any information, services, features or resources available or enabled via the Website or Software (each, a “Service” and collectively, the “Services”)), you agree, effective as of such date (the “Effective Date”) to be bound by these Terms. Together, the Website, the App, the Services, and the Software constitute the “Perk Hero Platform”). You also agree to our Anti-Money Laundering / Sanctions (“AML / Policy”) Policy, which is incorporated by this reference, and consent to the practices concerning data collection, transmission and use set forth therein. You are only authorized to use the App if you agree to abide by all applicable laws and this agreement. If you do not agree with these Terms, you should not install the App or should discontinue its use immediately. These Terms create a binding legal agreement between you and the Company, and include an arbitration clause under which certain claims may not be brought in court or decided by a jury. Please read them carefully.
We may, without prior notice or liability to the Customer, modify the Perk Hero Platform by adding or removing features and functionalities. We may also revise these Terms from time to time in our sole discretion, subject to Applicable Laws (as defined below). When we revise these Terms, we will notify Customer via email, the Perk Hero Platform, our website, 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 and apply to Customer’s access to and use of the Perk Hero Platform. Customers are free to decide whether or not to accept a revised version of these Terms, but accepting these Terms, as revised, is required for Customer to continue accessing or using the Perk Hero Platform. If Customer does not agree to these Terms or any revised version of these Terms, its sole recourse is to terminate its access to or use of the Perk Hero Platform. Except as otherwise expressly stated by us, Customer’s access to and use of the Perk Hero Platform are subject to, and constitute its acceptance of, the version of these Terms in effect at the time of Customer’s access or use. For purposes of these Terms, “Applicable Law” means any law, rule, regulation, ordinance, code, or order to which a Customer may be subject or under which a Customer may exercise rights.
Customer Registration and Representations
In order to use The App to initiate transactions and/or engage in any rewards programs provided by a Merchant, you must first register with Perk Hero, create a User Account, and associate a valid debit, credit card, Apple Pay ®, Google Pay ®, or Alipay ® account. Your registration and use of a User Account is subject to these Terms. By registering, you agree, represent, and warrant:
1. All information provided to the Company is accurate, current and complete, and that you will maintain and update such information as it changes.
2. You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions.
3. You are at least 18 years of age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The Platform, Services, and App are not intended for, or targeted to, anyone under the age of 13.
4. You do not and have never used or maintained any other Perk Hero account under a different email address (the creation of additional User Account(s) shall be considered a violation of this Agreement) or telephone number.
5. Your registration and your use of The App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
6. You are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and you are not listed on any U.S. Government list of prohibited or restricted parties. Note, for additional details on the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) Sanctions Program please see the following website:
Payment Terms and Methods
1. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) the Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) the Company reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on the Company’s income). Payment will be processed by the Company, using the preferred payment method designated in your account.
2. Charges paid by Customers for completed and delivered orders are final and non-refundable. The Company has no obligation to provide refunds or credits, but may grant them, in each case in the Company’s sole discretion.
3. The Company may change the fees for our Services as we deem necessary or appropriate for our business.
4. Charges for Services and any other fees are subject to change at any time at the Company’s or the Merchant’s discretion.
5. The App enables you to make purchases through Perk Hero of goods provided by Merchants by linking to your Perk Hero User Account a debit, credit, prepaid credit card,Apple Pay®, Google Pay®, or Alipay® account. Your User Account is not a bank account. The Company is not a bank and is a money transmitter exempted from registering as a money service business, per the U.S. Department of Treasury Financial Crimes Enforcement Network (FinCEN) exemption for payment processors (see 31 CFR § 1010.100(ff)(5)(ii)(B)). By linking a payment instrument to your User Account, you represent to the Company that you are an authorized user of the payment instrument. You may change the payment instrument associated with your User Account at any time. You are responsible for ensuring that the payment instrument associated with your Perk Hero account is at all times current, non-expired, and valid for payments.
You may have the ability to choose if you would like your order to be picked up by you at the premise of the Merchant (“Pickup Order”). You may be provided a time for when the Pickup Order will be ready for pickup. These times are only an estimate and the Company and the Merchant offer no guarantee that these times will be achieved. The Company is not responsible for any delays in receiving or having your Pickup Order ready for any reason. You will arrive at the time provided for a Pickup Order and the Company and the Merchant are under no obligation to remake an item or provide you refund if you do not arrive when indicated.
Transactions Involving Alcohol
You may have the option to order or pay for alcohol products in some locations through the Platform. If you receive your order in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the person providing the alcohol products. If you order alcohol products, you understand and acknowledge that the order will only be delivered if the merchant accepts your order. The Company and applicable Merchant reserves the right to refuse an order if you are not of legal age to purchase alcohol, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.
By submitting, posting or displaying User Content on or through the Platform or otherwise to the Company, you grant the Company, a worldwide, non- exclusive, royalty-free, perpetual, transferable, and fully sublicensable right to use, refrain from using, remove, reproduce, modify, edit, copy, adapt, publish, translate, create derivative works from, distribute, transmit, perform display and otherwise use User Content, in whole or in part. You further grant the Company the right (although the Company does not have the obligation) to pursue at law any person or entity that violates your or the Company’s rights in the User Content by a breach of these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content that you submit. For the avoidance of doubt, the Company has no obligation to post or display any User Content on the Platform.
Subject to these Terms, the Company hereby grants you a limited, non-exclusive and nontransferable license to download, install, display, perform, access and use the App on a single smartphone, tablet or other mobile device that you own or control for your personal, non-commercial use.
You shall not: (i) copy the App or any element thereof, except as expressly permitted by this license; (ii) modify, translate, adapt, or otherwise create derivative works or improvements of the App or any element thereof; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or any element thereof; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notice from the App; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or any features or functionality of the App, to any third party for any reason, including making the App available on a network where it is capable of being accessed by more than one device at any time; or (vi) use the App to violate any applicable law, including without limitation any law regarding the purchase or sale of alcoholic beverages. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
Reservation of Rights.
You acknowledge that the App is licensed, not sold, to you. The Company reserves all rights in and to the App not expressly granted to you under this Agreement. You do not acquire any ownership interest in the App under this Agreement. The Company and its licensors and service providers reserve and retain the entire right title and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. If you submit comments, suggestions, or other feedback regarding the App (“Feedback”), the Company will be free to use such Feedback for any purpose. The word marks “PERK HERO” and the “PERK HERO” logos and all associated marks and logos displayed within the App are our trademarks (unless otherwise noted).
Third Party Establishments
You acknowledge and agree that the App is a tool that enables you to make purchases and to settle, pay for or close (“close out”) a check, bill, tab, owed payment or other transaction, whether individually or as a “split” transaction with other users (each a “Transaction”), with third-party establishments, including but not limited to retail stores, service providers, restaurants or bars (each, an “Establishment”). You acknowledge that all Transactions are between you and the Establishment and that The Company is not a party to such Transactions. The Company is not responsible for examining or evaluating the quality, or any other aspect of such products or services of any Establishment and will not have any liability or responsibility to you or any other person therefore. Any Establishment that allows you to use the App to close out a Transaction retains the right to settle your payment should you fail to properly close out your Transaction either as a result of your failure to use the App to pay for the payment or if the App does not properly pay such payment. Any Establishment that allows you to use the App to close out any Transaction retains the right to request that you authorize such payment by other means including, but not limited to, signing a printed receipt or delivering a final check, bill or tab to you. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the App to pay for a Transaction in an Establishment, any chargeback for such charge shall apply to such Establishment and that we will not have any liability to you.
The Company is a technology provider. It is not a bank, credit union, payment processor or other financial institution. Payment processing services for users on the Platform are provided by third-party payment processors. The Company is not responsible for any errors by the third-party payment processor.
If you use the App to close out a Transaction in an Establishment, or if an Establishment closes out a Transaction on your behalf, the Establishment, not the Company, may add a required minimum tip or gratuity to the Transaction. You acknowledge that the Company does not determine or mandate any such tip or gratuity amount and you hereby agree to pay any minimum tip or gratuity as a condition to entering into the Transaction via the App.
You acknowledge that this Agreement is between you and the Company and not with Apple, Inc. (“Apple”), Google Inc. (“Google”), or any sponsor or provider of any application marketplace (each an “Application Store Provider,” or “ASP”) and that the Company (not the applicable ASP) is responsible for the App. You acknowledge and agree that no ASP makes any warranties or has any obligations whatsoever under these Terms or has any warranty obligations with respect to the App. You acknowledge that ASP have no obligation whatsoever to furnish any maintenance and support services with respect to the App or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that ASP has no responsibility for the investigation, defense, settlement or discharge of any third party intellectual property claims that the App or your use thereof infringes intellectual property rights.
If you are using the App on any iOS-based device, this license is granted to you only as permitted by and subject to any applicable Usage Rules set forth in the Apple App Store terms and conditions and Apple and its subsidiaries are third party beneficiaries. Upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof. If you are using the App on any Android-based device, this license is granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google.
Scheduled system maintenance shall take place from time to time, and during such time, updates the App or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. You specifically acknowledge that outage and downtime may occur. If the App is down when you attempt to complete a Transaction, you must make alternative arrangements to pay the applicable Establishment.
Updates. The Company may, but is not required to, develop and provide App updates from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features or functionality. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the settings of your mobile device, when your device is connected to the Internet, the App may automatically download and install available Updates, or you will be prompted to download and install available Updates. You acknowledge that the App or any of its features may not operate properly if you fail to install Updates and the Company may, in its sole discretion, cease supporting prior versions of the App after an Update is made available. You further agree that all Updates will be deemed part of the App and subject to the terms of this Agreement.
Consent to Communications
You consent to receive communications, including commercial communications (whether by phone, email, text, or the Platform) from the Company and our third-party partners, which may include Establishments and other third parties, including without limitation brands. You acknowledge and agree that your primary phone numbers and email addresses and other information may be used for the purpose of initiating commercial messages. Your consent to receipt of such messages is not, and will not be, a condition to any purchase. Your electronic acknowledgement of These Terms has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if the Company had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you. If at any time you change your mind regarding your consent to such messages, you must contact us. You have a right to receive Disclosures in paper form and you may opt out of receiving messages that are primarily commercial in nature. To stop receiving communications from the Company, you must terminate your account. If the App enables you to send or receive SMS messages, standard text messaging rates or other carrier charges may apply to such use.
The Company may send you “push notifications” if your device supports such communications. By downloading the App and clicking to allow push notifications, you “opt-in” to receive these push notifications via the App, including notifications that contain commercial messages from the Company and our third party partners. Should you wish to stop receiving push notifications via the App, you may turn off these notifications through the applicable settings on your device.
Third Party Offerings
To enjoy certain third party offerings made available in the App, certain third party terms (each, “Third Party Terms”) may apply. Third Party Terms will be presented for review and acceptance at the time that you undertake such activity within the App, and any such Third Party Terms shall constitute an agreement between you and such third party. The Company is not responsible for such third party offerings. Further, the App may display, include, or make available content, data, information, applications, or materials from third parties (“Third Party Materials”) or provide links to certain third-party websites. By using the App, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. The Company does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Materials or websites, or any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you. You acknowledge and agree that the Company will have no responsibility or liability for any losses or damages that you may incur as a result of any business dealings with anyone whose products or services may be advertised on the Platform.
Limitations on Availability
The App is based in Canada and the United States. We make no representation that the App is available or permitted in any particular location. Use of the App is void where prohibited. You use the App at your own initiative and are responsible for compliance with any applicable laws. We may also impose limits on the use or access to the App as required by law.
Term and Termination
The term of this Agreement and the license and other rights granted herein commence on the Effective Date and continue until terminated by the Company or you. You may terminate this Agreement by deleting the App and all copies of it from your mobile device. The Company may terminate this Agreement at any time without notice in its sole discretion, including if it ceases to support the App, or if you fail to comply with one or more terms of this Agreement. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) you must cease all use of the App and destroy all copies, full or partial, of the App. You acknowledge that the Company may restrict, modify, or terminate this Agreement, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation.
Disclaimers and Limitations of Liability
This section is important – please read it carefully – it limits the Company’s liability (and the liability of its affiliates) to you. These disclaimers and limitations apply only to the extent permitted by applicable law. Some jurisdictions do not allow disclaimers of implied warranties or limitations of liability, so this Section may not apply to you.
(a) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED ABOVE, THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM, ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY.
(b) Limitation of Liability. NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO THE APP. NEITHER WE NOR OUR AFFILIATES WILL HAVE LIABILITY TO YOU FOR DAMAGES IN EXCESS OF THE GREATER OF: (I) U.S. $50.00, OR (II) THE AMOUNT YOU PAID FOR THE APP, IF ANY, IN THE 12 MONTHS PRIOR TO THE CLAIM. THE ABOVE LIMITATIONS APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Disputes Between You and an Establishment or Other User
You are solely responsible for your interactions and Transactions with Establishments or other users of the App. You hereby agree to look solely to such Establishments and other users for any claim, damage or liability associated with any Transaction commissioned via the App and expressly waive and release the Company from any and all claims, damages and liabilities arising out of any act or omission of any Establishment, other user or third party.
Export and Other Restrictions
You may not use or otherwise export or re-export the App or elements thereof except as authorized by the laws of the jurisdiction in which the App was accessed or obtained. The App and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to any government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Levels and Experience Points
Users may earn experience points (XP) by completing quests and challenges through the App. When a user collects enough XP, they “level up” making their earning power for Perk Hero Coins more powerful. Perk Hero reserves the right to decrease a User’s XP and level if a User is inactive for a certain period of time.
Perk Hero Coins
The Company may grant you credit toward purchases as set out in these terms in the form of credit (“Perk Hero Coins”). Perk Hero Coins are a credit toward eligible purchases in a particular dollar amount that is associated with a unique Perk Hero customer account. From time to time, the Company may also issue Perk Hero Coins to you for other purposes (for example, to refund a purchase that you have made).
Perk Hero Coins are credits earned and have no cash value and will only apply in the local currency and are not transferable. If a purchase on Perk Hero exceeds the credit value of Perk Hero Coins in your account, the remaining balance will be charged to the registered credit card,debit card, or other method of payment. Perk Hero Coins may expire after a certain period of time without any liability to the Company.
The Company may, in its sole discretion, run promotions that may be redeemed for account credit, or other features or benefits related to the Services and/or a third party provider’s services, subject to any additional terms that the Company establishes on a per promotion basis (“Promo”). You agree that Promos:
Must be used for the intended audience and purpose, and in a lawful manner;
May not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by the Company;
May be disabled by the Company at any time for any reason without liability to the Company;
May only be used pursuant to the specific terms that the Company establishes for such Promos;
Are not redeemable for cash; and
May expire prior to your use.
Certain Promos may only be available to new users. New users are unique natural persons who have not yet created a Perk Hero account.
The Company reserves the right to delay delivery of Promo benefits pending verification that a user has complied with the terms of the Promo, including verification of the user’s identity. Perk Hero users that make a referral code available to other users must not make any false or misleading representations related to the Company or the benefits a new user may receive upon signing-up for Perk Hero. Perk Hero reserves the right to deduct credits or other features or benefits obtained through the use of Promos by you or any other user in the event that the Company determines or believes that the use or redemption of the Promo was in error, fraudulent, illegal, or in violation of the applicable Promo terms or these Terms.
Promotions cannot be combined with any codes or other promotions.
From time to time, the Company may run contests or competitions (“Contests”). Those Contests will be subject to these Terms, as well as rules specific to each Contest (“Contest Rules”).
In general, Contests for Canadian users will be open to individual residents of Canada over the age of majority in the province or territory in which they reside, with the exception of:
i) employees, representatives and agents (and persons with whom they are domiciled, whether related or not) of the Company, its advertising and promotion agencies; and
ii) residents of Quebec, unless specified in the Contest Rules.
The Contest Rules may specify other eligibility rules.
For greater certainty, subject to applicable law, we reserve the right, at any time and in our sole discretion, to withdraw any Contest, to add to or amend terms and conditions (including these Terms) in relation to any Contest or to vary or terminate the operation of a Contest at any time without notice.
This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if you electronically accept a subsequent agreement or amendment delivered by the Company via a click-to accept mechanism.
The laws of the British Columbia, Canada, excluding its conflicts of law rules, govern this this license and your use of the App. 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. Your use of the App may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between us regarding the App. 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.
Contact information for the Company’s Privacy Officer:
Tracey St. Denis
555 Burrard Street
Two Bentall Centre, Suite 1755