Last Updated: June 11, 2014
Perka is an online merchant-customer relationship management service that includes a loyalty program, messaging, email and geo-location features (together referred to as the "Service" or the "Perka Service"). The Perka Service is made available via (i) the Perka website, www.perka.com (the "Site"); or (ii) Perka applications ( "Perka Apps" ) that are available via an app store or app distribution platform (e.g., the Clover App Market, Apple iTunes and Google Play). The Site and Perka Apps provide information about and access to the Service and allows you to interact with us and others. While we want you to enjoy the experience of visiting our Site and using the Perka Apps, we also want you to understand the terms that are applicable to the Site and Perka Apps. If you do not agree with the Terms (as defined below), do not use the Site, the Perka Apps, the Service or any of their respective features.
References to "we", "our", "us" or "Perka" herein refer to Perka, Inc., a Delaware corporation, and our service providers and designees as deemed appropriate by us. References to Perka’s "Affiliates" means allpresent or future legal entities that are directly or indirectly owned or controlled by First Data Corporation (or its successor entities) and expressly exclude Kohlberg Kravis Roberts & Co. or any of its portfolio companies other than First Data Holdings Inc. and its subsidiaries. The term "control" in the preceding sentence means the ability to direct the management of such entity and the term "owns" or "ownership" means the beneficial ownership of more than fifty percent (50%) of the equity interest in an entity.
2. Your Use of the Site and Perka Apps
If you are a "Visitor" (which means that you simply browse the Site or download the Perka Apps), by accessing the Site and downloading the Perka Apps, you impliedly agree to use the Site and Perka Apps only in accordance with the Terms. If you register to become a "Member" (which means you must register with us for the Service), or a "Merchant" (which means you must register with us for certain subscription services and also sign a Merchant Subscription Agreement), you may be required to formally indicate your acceptance to the Terms during the registration process, by clicking to accept the Terms when the option is made available to you. The term "User" means a Visitor, a Member or a Merchant.
2.1 Prohibited Activities
You may not use any “deep-link”,” robot”, spider or other device or process to access or acquire, copy or monitor any portion of the Site or Perka Apps. You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or network connection to the Site, or to theServices offered on or through the Site and Perka Apps by hacking, password “mining” or any other illegitimate means. You may not probe, scan or test the vulnerability of the Site, Perka Apps or any network connected thereto, nor breach the security or authentication measures on the Site, Perka Apps or any network or systems connected thereto. You may not reverse look-up, trace or seek to trace any information on any other User of the Site or Perka Apps to its source, or exploit the Site or Service or information made available by or through the Site or Perka Apps, in any way where the purpose is to reveal any information, including but not limited to personal identification other than your own information. You may not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Perka Apps. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, any Perka App or with any other person’s use of the Site or any Perka App. You must not access or use the Site or Perka Apps or accept the Terms if you are a person who is either barred or otherwise legally prohibited from accessing or using the Site or Perka Apps.
2.2 Interruptions and Disabled Accounts
When using the Site and Perka Apps, you may occasionally experience interruptions or downtime as a result of internet issues beyond our control, technical problems or scheduled downtime. We will try to minimize these incidents but we cannot guarantee that they will not occur. In addition, if pursuant to the Terms,Perka suspends or terminates access to your account, you may be prevented from accessing the Site and your account details on the Site and Perka Apps.
3. Your Use of the Service
3.1 Your Personal Information and Privacy
Personal Information: When you register to become a Member, you will be asked to provide a name, your mobile phone number, zip code and your email address. By using the Perka Service, we may request to use (or you may opt-in to our use of) your mobile phone number or email address, or both, to send you messages via SMS or email, including service-related announcements, notices (including any notices required by law), changes to features of the Service, special offers and push notifications. If you are using a smartphone app (iOS or Android) we may communicate to you via the app or via SMS.
In addition, your download of the Perka App will allow Perka to monitor your usage and location data in order to identify, generate and show you content-targeted promotions. This will be via the geo-location feature of the Service that can determine your general location and which Merchant you are visiting (via beaconing) so that the Merchant’s special offers can be made available to you during that visit or determine where in the Merchant’s store you are so the Merchant can provide you offers specific to what you’re browsing.
Opt-in or Opt-out: You have the right to “opt-in” to Merchant loyalty programs. When you opt-in to a Merchant’s program,Perka will deliver special offers and push notifications from such Merchant to your mobile device. Perka is not responsible for the content of the Merchant notifications.
You also have the right to “opt-out” of the special offers and push notifications. In addition, Perka’s geo-location feature, including beaconing, may be turned off at any time by using the settings on your mobile device. Finally, you can opt-out of Perka news and announcements when you sign up for Perka, or you can use the unsubscribe link at the bottom of any email we send you.
Sharing Your Information: By registering to become a Member, you acknowledge that Perka will share your information and shopping activity with your registered Merchants. The Service may allow you to share your personal information and activity with other Members and publish this information on the internet (including social media sites, such as Facebook, Twitter, Google+, etc). You will need to take specific action for this to occur. Perka disclaims any and all liability and responsibility for any consequences (including, but not limited to, unforeseen consequences) of sharing (whether intended or unintended) your personal information.
Use of the Service and its features and registration to be a Member or Merchant ( "Membership" ) is void where prohibited. By using the Service and its features, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service and its features does not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current or incomplete, or Perka has reasonable suspicion that such information is untrue, inaccurate, not current or incomplete, or you otherwise have violated the Terms, Perka has the right to suspend or terminate your account and refuse any or all current or future use of the Site and Service, including via the Perka Apps, (or any portion thereof).
3.3 Registration and Passwords
If you register to become a Member or Merchant, you will be asked to choose a user name (or email address) and password. You are solely responsible for maintaining the confidentiality of this information. You are not permitted to allow anyone else to use your user name and password to log into the Service. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account so please be vigilant in protecting its confidentiality. You agree that Perka will not be liable for any loss that you may incur as a result of someone else using your password or user name, either with or without your knowledge. However, you could be held liable for losses incurred by Perka or another due to someone else using your password or user name.
3.4 Prohibited Activities
You have a non-transferable, non-sublicensable, non-exclusive license to access the Service, to download the Perka Apps, to view information contained in the Service and to interact with the Service solely for your own personal use and not for any commercial purpose, unless you have entered into a Merchant Subscription Service Agreement with us, in which case your use of the Service is also governed by such Merchant Subscription Service Agreement. You agree not to use the Service for any unlawful purpose and you also agree not to use any Content, defined below, from our Service unless the owner has given permission or it is permitted by law. Tampering with the Service, misrepresenting the identity or age of a User, using buying agents or conducting fraudulent activities on the Service are prohibited.
In addition to the disclaimers below, we disclaim all liability and responsibility for the availability, responsiveness, reliability or security of the Service and reserve the right to suspend, modify, or discontinue the Service at any time without notice. Perka is not responsible for any promotions or loyalty programs made available from Merchants through the Service.
"Content" means data, text, images, photographs, graphics, audio, video, offers, products, services, and documents including, without limitation, marketing materials, press releases, white papers, product data sheets, and other information and content available on or through or submitted on or through the Site or Perka Apps.
We may, but are not obligated to, allow Members and Merchants to upload Content for display on the Site or Perka Apps ( "User Content" ). If we allow this feature, please choose carefully the information you post, provide to other Members and/or otherwise make available through the Service. Perka does not review User Content prior to posting and is not responsible for the accuracy, usefulness, safety or intellectual property rights of or related to User Content. Do not include any form of prohibited Content, as outlined below. Despite this prohibition, Content provided by other Members and Merchants (for instance, in their profile or displayed on the Service in areas in which Members and Merchants can post Content) may, in whole or in part, be unauthorized, impermissible or otherwise violate the Terms, and we assume no responsibility or liability for this material. If you become aware of misuse of the Service or its features by any person, please click on the “Contact Us” link on the Service pages and follow the directions as to how to contact us. We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting by you.
4.2 Proprietary Rights
You retain all rights in and to the User Content you post to the Site or via the Perka Apps, subject to the license herein. You hereby acknowledge that the Service may contain Content of other Members and Merchants and Content of other licensors ( "Third Party Content" ). Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Third Party Content appearing on or through the Service.
By displaying, publishing and posting User Content, or otherwise submitting User Content to us (collectively, "Posting"), you hereby grant to Perka an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable, sublicenseable right and license to use, modify, adapt, broadcast, communicate, delete from, add to, create derivative works of, publicly perform, publicly display, reproduce and distribute (and to sublicense the foregoing rights through multiple tiers of licensees) such User Content (including any copyright, trademark, publicity or other proprietary rights therein and thereto) in whole or in part, for any purpose, including without limitation in connection with the Site, Perka Apps and on or through the Service. From time to time, we may remove User Content permanently or temporarily.
Make sure you have the rights needed to submit or Post your Content. You are solely responsible for your Content and the consequences of posting Content. You represent and warrant that you own or have the necessary licenses, rights, consents, permissions and releases to publish the Content you post and to grant the licenses and rights set forth above. You are also responsible for any fees, royalties or other monies owing by reason of any Content you have posted.
The Service also contains Content provided by Perka, including, without limitation, text, images and logos ( "Perka Content" ). Perka Content is protected by copyright, trademark, patent, trade secret and other laws, and Perka owns and retains all rights in the Perka Content and the features and functionality of the Service. Perka hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the Perka Content (excluding any software code) solely for your personal use in connection with utilizing the Service.
4.3 Unauthorized Content and Use of Service
You agree to not use the Service to:
- a) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, sexually explicit, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise discriminatory and objectionable, as deemed by Perka in its sole discretion;
- b) harm or exploit children or minors in any way;
- c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- d) upload, post, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships or that violates a third party’s copyrights, trade secrets, trademarks, privacy right, publicity rights, or other intellectual or proprietary rights;
- e) upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials or any other form of unauthorized solicitation including spam, surveys or chain letters;
- f) upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of the Site, the Perka Apps or any computer software, hardware or telecommunications equipment;
- g) upload, post, transmit or otherwise make available any Content that is fraudulent, false, misleading or deceptive;
- h) interfere with or disrupt the Site, the Service or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site, the Perka Apps and the Service;
- i) intentionally or unintentionally violate any applicable local, state, national or international law; and/or
- j) collect or store personal data about other Users in connection with the prohibited conduct and activities set forth in paragraphs a through i above.
You are solely responsible for your use of the Site, the Perka Apps, the Service and the Content that you post on the Site or through the Service (including via the Perka Apps), as well as any material or information that you transmit to other Members and for your interactions with other Users.
5. Your Use of the Perka App
The following terms apply to your use of the Perka Apps, including when accessed through or downloaded from any app store or app distribution platform (e.g., the Clover App Market, Apple iTunes and Google Play) any such app store or app distribution platform is referred to below as an "App Provider".
- The Terms are concluded between you and Perka, and not with the App Provider. We are responsible for the Perka Apps (not the App Provider).
- The App Provider has no obligation to furnish any maintenance and support services with respect to the Perka Apps.
- The App Provider will have no warranty obligation whatsoever with respect to the Perka Apps.
- The App Provider, and its subsidiaries, are third party beneficiaries of the Terms only as related to your use of the Perka Apps via the app store or app distribution platform and, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce the Terms (as related to your use of the Perka Apps via the app store or app distribution platform) against you as a third party beneficiary thereof.
- Perka may release updates to the Perka Apps from time to time that you may need to install.
- You may not remove any watermarks, labels or other legal or proprietary notices included in the Perka Apps, and you may not attempt to modify the Perka Apps, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Perka Apps.
6. Intellectual Property
6.1 Protection of Our Intellectual Property Rights
You agree that the Site, Service and the Perka Apps, including but not limited to all text, graphics, user interfaces, editorial content, and software used to implement the Site, Service and Perka Apps and the design, structure, selection, coordination, expression, “look and feel” and arrangement of such, contains proprietary information and material that is owned or licensed by Perka or its Affiliates and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except in compliance with the Terms. No portion of the Site, Service or Perka Apps may be reproduced in any form or by any means, except as expressly permitted in the Terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site, Service or Perka Apps in any manner, and you shall not exploit the Site, Service or Perka Apps in any unauthorized way whatsoever.
Notwithstanding any other provision of the Terms, Perka reserves the right to change, suspend, remove, or disable your access to the Site, Service and Content, including via the Perka Apps, or other materials comprising a part of the Site, the Perka Apps or any part thereof at any time without notice. In no event will Perka be liable for such change, suspension, removal or disablement.
All right, title and interest (including copyrights) in and to the Site, Service and Perka Apps (including the compilation of Content, postings, links to other internet resources, and descriptions of those resources and related software) are owned by or licensed to Perka and its Affiliates, who reserve all rights in law and equity not expressly granted to you under the Terms.
The Perka name, Perka logo, Site, and other Perka trademarks, service marks, graphics, and logos used in connection with the Site, Service and Perka Apps are trademarks or registered trademarks of Perka or its Affiliates in the U.S. and/or other countries. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks other than in respect of your use of theSite, Service and Perka Apps.
6.2 Protection of Your Intellectual Property Rights
Perka respects the intellectual property of others, and requires that our Users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. We reserve the right to terminate the Membership of anyone we suspect to be an infringer. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please click on the “Contact Us” link on the Service pages and follow the directions as to how to contact us.
7. Disclaimer of Warranties; Limitation of Liability
THE SITE (WHICH INCLUDES THE SERVICE, PERKA APPS, AND CONTENT ON OR AVAILABLE THROUGH IT) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PERKA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, PERKA MAKES NO WARRANTY THAT: (A) THE SITE, PERKA APPS OR SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SITE, PERKA APPS OR SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, PERKA APPS OR SERVICE WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D) THE QUALITY OF THE SITE, PERKA APPS OR SERVICE WILL MEET YOUR EXPECTATIONS. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, PERKA APPS, THE SERVICE AND ANY THIRD PARTY SITE (DEFINED BELOW). PERKA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SITE, PERKA APPS OR ANY THIRD PARTY SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE, PERKA APPS OR SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Profiles and third party applications created and posted by Members and Merchants may contain links to other websites ( "Third Party Sites" ). Perka is not responsible for the content, accuracy or opinions expressed on such Third Party Sites, and such Third Party Sites are not necessarily investigated, monitored or checked for accuracy or completeness by Perka. Inclusion of any linked Third Party Site on the Site, via the Perka App or in the Service does not imply approval or endorsement of the linked Third Party Site by Perka. When you access these Third Party Sites, you do so at your own risk. Perka takes no responsibility for third party advertisements or third party applications that are posted on the Site, the Perka apps or through the Service, nor does it take any responsibility for the goods or services provided by its advertisers or Merchants.
Perka is not responsible for the conduct, whether online or offline, of any User of the Service including, without limitation, any Content posted by any User. Furthermore, the User Content does not necessarily reflect the opinions or policies of Perka.
The Service is controlled from PERKA’S facilities in the United States. Perka makes no representation that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so of their own volition and at their own risk and are responsible for compliance with local law.
IN NO EVENT SHALL WE, OUR AFFILIATES OR OUR LICENSORS BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR PERSONAL INJURY, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PRIVACY, LOSS OF PROFITS OR REVENUE INCURRED BY YOU OR ANY THIRD PARTY IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS ARISING FROM YOUR ACCESS TO, OR USE OF, OR INABILITY TO USE THE SITE, SERVICE OR PERKA APPS.
8. Waiver and Indemnification
BY USING THE SITE, SERVICE AND THE PERKA APPS, YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD PERKA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS, YOUR USE OF THE SITE, SERVICE AND THE PERKA APPS, OR ANY ACTION TAKEN BY PERKAS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM PERKA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE, SERVICE AND PERKA APPS, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF PERKA'S CONCLUSION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS.
10. Term and Termination
While we look forward to providing you with excellent service for a long period of time, you may cancel your Perka account at any time, for any reason, with no further obligation to Perka by following the instructions available from the Service, unless otherwise agreed to by you and Perka. You may also terminate your Membership at any time, for any reason, by providing written notice to us.
We reserve the right, in our sole discretion, to reject, refuse to post or remove any Content posted by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Service at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Service if we determine, in our sole discretion, that you have violated the Terms, pose a threat to us, our suppliers, our Merchants and/or our Users or for any other purpose we determine in our sole discretion.
11. Applicable Law and Jurisdiction
The Terms will be construed, and their performance enforced, under the laws of the state of New York without reference to its conflict of law principles. Regardless of where you access the Site or from where you download the Perka Apps, you agree that any dispute relating to the Terms, the Site or the Perka Apps may be litigated only in a court having jurisdiction and venue in the state of New York. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THE TERMS, THE PERKA APPS AND USE OF THE SITE.
12. Third Party Rights
Except for our Affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to the Terms.
You may not assign or transfer any or all rights and obligation under the Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Perka. Any attempt to assign or transfer without such approval will be null. Perka shall have the right to assign, novate or otherwise transfer all or any of its rights and obligations under the Terms and you shall enter into any documents required by Perka to effectuate this.
14. Enforceability of Terms
The failure of Perka to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is unlawful, void or unenforceable, that provision is deemed severable from the Terms and does not affect the validity and enforceability of any remaining provisions.