1. Consumer Terms of Use 2. Website Terms

Consumer Terms of Use

Last Updated: July 25, 2016

1. Introduction

Perka is a merchant-customer relationship management service that allows you to receive loyalty-based offers, discounts, rewards and promotional advertising content from merchants via your mobile device or smart phone (collectively referred to as the “Service” or the “Perka Service”).

The Perka Service is made available via the Perka application (“Perka App”) that can be downloaded to your mobile device or smart phone from an app store or app distribution platform. While we want you to enjoy the experience of using the Perka App and visiting our website at www.perka.com (hereinafter referred to as the “Site”), we also want you to understand the terms that are applicable to the Perka App and the Site.

If you do not agree with the Terms (as defined below), do not use the Site or install/use the Perka App (including the Perka App’s related services or features).

2. Agreement to the Terms and Disclosures

After you download the Perka App on your mobile device or smart phone (“Device”), you will be able to register with Perka and create your Perka account. However, before you begin that registration process, you will be asked to “click to agree” to these Terms of Use and our Privacy Policy (together referred to as the “Terms”). The Terms form a legally binding contract between you and Perka in relation to your use of the Site, the Perka Apps and the Services.

If you agree to be bound by the Terms, you represent and warrant that:

Your agreement to the Terms includes agreement to all current and future disclosures, notices, receipts and statements required by applicable law and related to your Perka account (“Disclosures”), which will be communicated to you electronically from time-to-time by posting on the Site, via the email address associated with your account, and/or through in-App messaging.

Your “click to agree” to the Terms has the same effect as if you signed them in ink and your receipt of electronic Disclosures has the same meaning and effect as if Perka had provided you with paper copies, whether or not you choose to view the Terms or Disclosures. Disclosures are considered received by you within 24 hours of the time posted to our Site, or emailed or messaged to you in-App.

References to “we,” “our,” “us” or “Perka” refer to Perka, Inc., Perka, Ltd, Perka Affiliates and our service providers and designees as deemed appropriate by us. References to Perka’s “Affiliates” means all present or future legal entities that are directly or indirectly owned or controlled by First Data Corporation (or its successor entities). 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.

3. Your Use of the Perka App and Service

3.1 Eligibility. Registration for and use of the Service and its features is void where prohibited. By registering and using the Service and its features, you represent and warrant that (a) you have all rights necessary to create an account; (b) all registration information you submit is truthful and accurate; and (c) you will maintain the accuracy of such information. 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 Service.

3.2 Registration and Passwords. When you create your Perka account, you will be asked to choose a user name (which may be your email address) and password. You may not select a user name that: (a) is used by someone else, (b) is indecent or offensive, or (c) violates these Terms or applicable laws, rules and regulations. You are solely responsible for maintaining the confidentiality of your user name and password. You should not 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. Your earned discounts and rewards are at risk if you let someone use your account inappropriately.

You agree that Perka will not be liable for any loss that you may incur as a result of someone else using your user name or password, either with or without your knowledge. However, you could be held liable for losses incurred by Perka due to someone else using your user name or password.

In addition to creating your user name and password, you will be asked to provide certain information to enable Perka and merchants to contact you in accordance with the Terms. Please see the Privacy Policy for details.

3.3 Using your Perka Account. After you have created your Perka account, you will have the right to select and “opt-in” to merchant loyalty programs. When you select a merchant’s loyalty program, Perka will share your information and shopping activity with your selected merchant(s). Perka will also deliver special offers and push notifications from such merchant(s) to your Device. You have the right to “opt-out” of those special offers and push notifications. Your download of the Perka App and creation of a Perka account will allow Perka to monitor your usage and your location data in order to identify, generate and show you targeted promotions. This monitoring will be done via a Perka geo-location feature that can be turned off at any time by using the settings on your Device. You will automatically receive Perka news, notices and announcements, unless you choose to opt-out of (and unsubscribe to) such information.

3.4 Updates. Perka is constantly innovating in order to provide the best possible experience for any consumer that installs the Perka App, uses the Service or uses the Site. Accordingly, you acknowledge and agree that from time to time, and without prior notice to you, Perka may at its sole discretion release updates to the Perka App that you may need to install. In addition, some updates may prevent you from accessing the Perka App or certain features within the Perka App (permanently or temporarily) and, if that occurs, your earned discounts and rewards may not be available to you.

3.5 Prohibited Activities. As an individual consumer that has downloaded the Perka App and created an account to receive loyalty-based offers, discounts, rewards and promotional advertising content from merchants on your Device, you have a non-transferable, non-sublicensable, non-exclusive license to access the Service, 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. In connection with your access to and use of the Perka App, Services and Site, you must not:

3.6 User Fraud. If Perka determines that you have engaged in any fraudulent use of the Perka App or Service, or use in violation of the Terms, in addition to its rights to terminate and recover any monies required to remedy such fraudulent use, Perka may impose a fee for each investigation conducted by Perka that results in a confirmation of such violation of the Terms. By registering for a Perka account, you agree to all additional fees and penalties that Perka may impose in the event Perka deems your use of the Perka App or Service is in breach of the Terms including, without limitation, the immediate termination of your account.

3.7 Interruptions and Disabled Accounts. When using the Site, Service or the Perka App, you may occasionally experience interruptions or downtime as a result of (a) internet issues beyond our control, (b) technical problems; or (c) 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 Service and your account details on the Perka App.

4. Perka Payment Option (*Limited Availability)

One of the features in the Perka App is the ability for you to pay your selected merchants (for goods and/or services) through the Perka App on your Device. *This feature can only be used with merchants that have signed up to accept payments through Perka and have the required point-of-sale equipment (“Perka Payment Merchants”).

4.1 Linking Your Payment Instruments. To take advantage of Perka Payments, while on the Perka App, you will be prompted to link a payment instrument (which may include a debit, credit and/or prepaid card issued in the United States bearing the trademark of MasterCard International Inc., Visa Inc., American Express or Discover) to your Perka account. After your payment instrument has been linked to your Perka account, each time you purchase items from a Perka Payment Merchant, you will be asked “Do you want to pay with your card on file?”

4.2 Primary and Secondary Payment Instruments. By linking a payment instrument(s) to your account, you represent to Perka that you are an authorized user of the payment instrument(s). If multiple payment instruments are linked to your account, you must designate one linked payment instrument as the primary payment instrument. You may change the designated primary payment instrument associated with your account at any time. All payment instruments other than the designated primary payment instrument will be deemed "secondary" payment instruments. You are responsible for ensuring that all payment instruments are at all times current, non-expired, and valid for payments. You may not associate a Health Savings Account card with your account.

NOTE: Your account is not a bank account. Perka is not a bank, and does not offer banking or money service business ("MSB") services as those terms are defined by the United States Department of Treasury. Perka does not offer money transmission services.

4.3 Authorization to Charge Payment Instrument(s). By linking a payment instrument(s) to your account, including by tapping the "Add a Card" authorization button within the Perka App and using the Perka App to initiate a transaction at a participating Perka Payment Merchant’s point-of-sale, you authorize Perka to charge your linked payment instrument(s), including the primary and/or any secondary instrument(s), as necessary to complete payment for the purchase or transaction. Perka will first submit authorized charges to your designated primary payment instrument. If such charge is rejected or fails, Perka may charge any secondary payment instrument(s) without advance notice to you.

All purchases and charges authorized using the Perka App are subject to the terms and conditions set forth by the entities that issue your payment instrument(s). In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your account, you must contact the entity that issued your payment instrument.

Perka may limit the frequency of Perka Payment transactions that you may make using your Perka account. However, Perka does not charge any fees in connection with Perka Payment transactions.

4.4 Failed Transactions. In the event that Perka is unable to successfully charge any linked payment instrument, Perka will notify the Perka Payment Merchant at the time of the payment failure. The Perka Payment Merchant may then ask for an alternative form of payment. Perka is not responsible for any charges imposed by the issuer of your payment instrument(s) as a result of any failed charge by Perka.

4.5 Prohibited Transactions. The Perka Payments feature may be used only for the bona fide purchase of goods and/or services via the Perka App offered in the ordinary course of a Perka Payment Merchant's business and may not be used to process a payment or otherwise transfer money between two parties. The Perka Payments feature may not be used for transactions in which you request cash back from the merchant. The Perka Payments feature shall not be used for the purpose of accepting or transferring security, for the payment of loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity. Perka reserves the right to decline any attempted transaction if it appears that any of the Terms have been violated.

4.6 Transaction Receipts and Disclosures. In addition to statements provided by the entities that issue your payment instrument(s), Perka may provide you with an electronic transaction receipt, through a message within the Perka App and/or by email to the email address provided by you, following each Perka Payment transaction initiated using a Perka App. The receipt may include the date, location, and amount of the transaction, as well as the identity of the Perka Payment Merchant at which the transaction occurred. If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you may contact Perka by email at support@perka.com or by calling 1-844-832-1275.

4.7 Lost Devices. In the event that you lose your Device on which a Perka App is installed and your payment instrument is linked, or if you otherwise learn that your account password is compromised ("Lost Device"), you shall notify us immediately by email at support@perka.com or by calling 1-844-832-1275.

4.8 Security and Reporting Requirements. Perka implements a variety of methods and proprietary protocols to protect you from bad actors who may attempt to access and make fraudulent charges using your account. One such method is asking you to upload a photo during registration (that will be connected to your account and visible to your selected merchants) which will allow the Perka Payment Merchant to verify your identity at checkout. If you believe a transaction to be fraudulent, please call the entity that issued your payment instrument immediately.

4.9 Issuing Institutions. To the extent that the security of your payment instrument(s) is compromised in an event having no relation to Perka and/or the Perka Service (for example, your wallet is stolen), and your payment instrument is linked to another account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your payment instrument. With respect to your card issuing institution, federal law provides that you may assert against your card issuing institution all claims (other than tort claims) and defenses arising out of a fraudulent transaction and relating to the failure to resolve the dispute.

5. Your Privacy and Personal Information

5.1 Privacy. We understand that your privacy is important. Perka has developed a Privacy Policy describing how we collect, use and disclose information. By using the Site, the Service and/or downloading the Perka App, you agree that Perka’s Privacy Policy is applicable to you. Please review the Privacy Policy at www.perka.com.

5.2 Personal Information. When you register with Perka and create an account, you will be asked to provide certain information such as your name, email address, your mobile phone number, and your zip code/postal code. By registering, you acknowledge that Perka may share your information and shopping activity with your selected merchants.

The Service may allow you to share your personal information and activity with other users and publish this information on the internet (including blogs and 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.

When you add a payment instrument to your account on the Perka App, Perka will never share your payment instrument information with any person other than as necessary to process the payments you authorize. Perka does not store your sensitive payment instrument information on Perka's servers. Rather, we use the globally respected payment gateway of one of our Affiliates to leverage its secure vault solutions for all payment instrument storage. Perka only keeps the last 4-digits of your payment instrument (and the type of card used) to allow us to match your purchase to the payment instrument stored by our Affiliate. All data sent to our Affiliate’s servers is encrypted and protected by industry standard measures. By leveraging our Affiliate for storage, we are able to add another powerful layer of security to our Perka Payments solution. If you have any further questions about Perka's security measures, please review our Privacy Policy

5.3 Perka Payments and Payment Instrument Security. When you add a payment instrument to your account on the Perka App, Perka will never share your payment instrument information with any person other than as necessary to process the payments you authorize. Perka does not store your sensitive payment instrument information on Perka's servers. Rather, we use the globally respected payment gateway of one of our Affiliates to leverage its secure vault solutions for all payment instrument storage. Perka only keeps the last 4-digits of your payment instrument (and the type of card used) to allow us to match your purchase to the payment instrument stored by our Affiliate. All data sent to our Affiliate’s servers is encrypted and protected by industry standard measures. By leveraging our Affiliate for storage, we are able to add another powerful layer of security to our Perka Payments solution. If you have any further questions about Perka's security measures, please review our Privacy Policy

As a condition of your use of the Perka Payments feature, you authorize Perka to capture, store, and use information concerning the use of your Perka account and your transactions at all Perka Payment Merchants ("User Data"). Perka uses this User Data, in accordance with the permissions granted by you and Perka's Privacy Policy, primarily in order to ensure compliance with all applicable federal and state laws and regulations concerning your payments and to provide the Services to you and to Perka Payment Merchants. By agreeing to the Terms, you grant Perka all rights to collect, retain, share, and use User Data for any purpose in accordance with such Terms.

6. Content

6.1 Generally. “Content” means data, text, images, photographs, graphics, audio, video, offers, feedback, 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.

6.2 Merchant Content. When you select a merchant via the Perka App you consent to receiving Content from such Merchant. All Content is provided by the merchants that you have selected. The selected merchant(s) is the sole party(s) responsible for the Content that you receive and for providing you with offers, discounts or rewards. Any disputes regarding a merchant’s loyalty program and any other aspect of any transaction or other commercial dealing is solely between you and the relevant merchant.

Perka reserves the right at any time in its sole discretion to remove any Content for any or no reason, with or without prior notice or explanation, and without liability. You must comply with the terms and conditions that any merchant may impose in connection with its loyalty program, and you are solely responsible for any loss or damage that you (and Perka) may suffer as a result of your violation of any such terms and conditions.

6.3 Your Posted Information. Perka may, but is not obliged to, allow you and other users to input Content, photographs, descriptions, drawings, audio materials, text, feedback, messages or other information (collectively "Posted Information") for display on the Perka App. You are solely responsible for all Posted Information you input into the Perka App and:

7. Your Use of the Perka App

The following terms apply to your use of the Perka App, including when accessed through or downloaded from any app store or app distribution platform, referred to below as an “App Provider”:

By agreeing to the Terms in connection with your download of the Perka App, or by signing into an App using your user name and password, you grant the App and the App Provider: (i) the authority to claim and review rewards and provide access for you to manage your account information within the App; and (ii) the authority to use your email address (or other contact information), which may be used in accordance with the App Provider's own privacy policy.

8. Ownership and Licensing

  1. Perka grants to you a personal, non-exclusive, non-transferable, revocable license to access and use the Site and to download and use the Perka App for your own personal use only in accordance with these Terms, and without the right to sub-license or assign in any way. Perka may from time to time upgrade, update or modify the Perka App, release new versions of the Perka App or create new related modules, each of which may, at Perka’s sole discretion, be included in this license.
  2. All intellectual property rights in or related to the Site and the Perka App are and remain the sole and exclusive property of Perka and its licensors, and all right, title and interest associated with the Site and the Perka App not expressly granted by Perka under these Terms are withheld.
  3. You are not granted any rights or license in or to the Perka name, trademarks, service marks, graphics or logos, which are and will remain the sole and exclusive property of Perka.
  4. You hereby grant to Perka a perpetual, worldwide, royalty-free, non-exclusive, transferable, irrevocable license to use, modify, adapt, translate, create derivative works of, reproduce, publish, broadcast, distribute and commercially exploit your Posted Information, in whole or in part, and alone or as part of other works in any form, media or technology whether now known or hereafter developed, including, but not limited to, the right to sub-license through multiple tiers of sublicensees or assign in any way, in connection with the Site and the Perka App.
  5. You hereby irrevocably waive and cause to be waived against Perka any claims and assertions of moral rights or attribution with respect to your Posted Information.
  6. All intellectual property rights in or related to your Posted Information are and remain your sole and exclusive property, and all right, title and interest associated with your Posted Information, not expressly granted by you under these Terms, are withheld.
  7. Perka grants to you a personal, non-exclusive, non-transferable, revocable license to use merchant Content for your own personal use only in accordance with these Terms, and without the right to sub-license or assign in any way.
  8. All intellectual property rights in or related to merchant Content are and remain the sole and exclusive property of the relevant merchants, and all right, title and interest associated with such Content, not expressly granted by Perka under these Terms, are withheld.
  9. The Site and the Perka App may also contain information provided by Perka, including, but not limited to, text, images, logos, photographs, graphics, audio, video, marketing materials, press releases and related information (“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.

9. Disclaimer of Warranties; Limitation of Liability

9.1 THE SITE, THE SERVICE, PERKA APPS, AND CONTENT ON OR AVAILABLE THROUGH THE SITE AND PERKA APP ARE 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 ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

9.2 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.

9.3 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.

9.4 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.

9.5 PERKA DOES NOT REPRESENT OR GUARANTEE THAT THE SITE AND THE PERKA APP WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND PERKA DISCLAIMS ANY LIABILITY RELATING THERETO. YOU WILL BE RESPONSIBLE FOR BACKING UP YOUR OWN DEVICE OR COMPUTER SYSTEM.

9.6 PERKA HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR FROM UNAUTHORIZED USE OF YOUR PERKA ACCOUNT OR YOUR USER NAME AND PASSWORD, 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. YOU WILL INDEMNIFY AND HOLD PERKA HARMLESS FOR ANY IMPROPER OR ILLEGAL USE OF YOUR PERKA ACCOUNT.

9.7 PERKA DOES NOT REVIEW OR MONITOR ANY CONTENT. ACCORDINGLY, PERKA HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR ARISING FROM OR IN CONNECTION WITH ACTIONS TAKEN OR OMITTED BY ANY MERCHANTS OR FOR THE NATURE OF THE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE FAILURE BY ANY MERCHANT TO HONOR ANY OFFER, DISCOUNT, REWARD OR OTHER OBLIGATIONS SUCH MERCHANT MAY HAVE TO YOU. In addition, Perka is not responsible for the goods and services that you purchase using the Services or the Perka App. The providing merchant is responsible for all customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant's personnel, policies, or processes. Perka is also not responsible for any customer service related to your payment instrument(s).

9.8 PERKA DOES NOT REVIEW OR MONITOR USER CONDUCT OR ANY POSTED INFORMATION INPUT INTO THE PERKA APP OR POSTED ON THE SITE. ACCORDINGLY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF POSTED INFORMATION IS AT YOUR SOLE RISK. PERKA HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR RELATING TO YOUR CONDUCT OR POSTED INFORMATION OR THE CONDUCT OR POSTED INFORMATION OF ANY OTHER USER.

9.9 The SITE AND THE PERKA APP ARE MANAGED from PERKA’S facilities in the United States. Perka dOES NOT REPRESENT OR WARRANT that the SITE AND THE PERKA APP ARE appropriate or available for use in other JURISDICTIONS. IF YOU access or use the SITE AND THE PERKA APP from other jurisdictions, YOU do so of YOUR own volition and at YOUR own risk.

9.10 Profiles and third party applications created and posted by USERs 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.

9.11 LIMITATION OF LIABILITY: 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.

IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY IN THIS SECTION 9.11 ARE FOR ANY REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID, UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS SHALL BE LIMITED OR ELIMINATED TO THE MINIUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THESE TERMS OF USE, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABIITY OF PERKA OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR YOUR ACCESS TO AND USE OF THE SITE, SERVICE OR PERKA APPS EXCEED THE AMOUNT OF TWO HUNDRED FIFTY DOLLARS ($250.00), REGARDLESS OF THE FORM OR THEORY OF THE ACTION OR CLAIM.

10. Indemnification and Waiver

10.1 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, AND YOUR POSTED INFORMATION.

10.2 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 (A) REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, (B) WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE AND PERKA APP, OR (C) 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.

10.3 THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS.

11. Changes to the Terms

We reserve the right to make changes to the Terms at any time by publishing a revised version of the Terms on the Site, via the email address associated with your account or via the Perka App, through in-App messaging. The revised version of the Terms will take effect from the time at which it is first published. You will be subject to the Terms in force at the time that you use the Site or download the Perka App. Your continued use of the Site and Perka App indicates your acceptance of any such updates and changes. You are advised to check the Terms from time to time for any updates or changes that may affect you. We last modified these Terms of Use on the date stated at the beginning of these Terms of Use. If you are dissatisfied with the Service, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Service. The Terms are the entire agreement between you and Perka with respect to your use of the Service.

12. Suspension and Termination

12.1 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. Upon termination of your Perka account, you will no longer have access to your earned discounts, points and rewards.

12.2 We reserve the right, in our sole discretion, to reject, refuse to post or remove your Posted Information, or to deny, restrict, suspend, or terminate your access to your account and 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. Following the suspension or termination of your account, Perka will not be under any obligation to return any Posted Information of any kind to you.

12.3 With respect to the Perka Payments feature, in the event of a termination or suspension of your account, Perka has the right to retain and use User Data and complete any authorized transactions.

Any provisions that by their nature require survival in order to be effective, shall survive the termination of these Terms.

13. 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.

14. Notices and Communications

14.1 When you use the Site and/or the Perka App or send emails to Perka, you are communicating with Perka electronically. Perka will communicate with you by e-mail, by text messages, by phone or by posting notices on the Site and/or the Perka App. You consent to receive notices and communications from Perka electronically and agree that all notices and communications that Perka provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication.

All notices that you are required or desire to give to Perka must be delivered in writing by e-mail to support@perka.coma>.

15. General

15.1 A failure by Perka to enforce any right or provision of the Terms will not constitute a waiver by Perka of future enforcement of that right or provision or any other right or provision.

15.2 If any provision of the Terms is held to be invalid or unenforceable, that provision will be inoperative only to the extent necessary and will be severed from the remainder of the Terms. The rest of the Terms will remain in full force and effect.

15.3 Except as specifically stated, no third party will have any rights under, or be able to enforce, the Terms.

15.4 You must not assign or transfer any of your rights or obligations under the Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Perka. You must enter into any documents required by Perka to effectuate an assignment or transfer by Perka of its rights and obligations under the Terms.

15.5 The Terms establish an independent contractor relationship between you and Perka, and do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you and Perka. Except as expressly stated in the Terms, neither party has the authority to act or purport to act as the other party's agent or representative for any purpose.

15.6 The Terms and the Privacy Policy constitute the entire and complete legal agreement between you and Perka regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you and Perka regarding its subject matter. Each party acknowledges that it has not relied on any oral or written representations made to it (whether made negligently or innocently) other than as expressly set out in the Terms. Nothing in this Section 15.6 will limit or exclude your liability for fraud.


Website Terms of Use

Last Updated: September 1, 2015

Thank you for visiting our website, www.perka.com (the “Site”). References to “we,” “our,” “us” or “Perka” herein refer to Perka, Inc., and Perka, Ltd, and our service providers and designees as deemed appropriate by us.

Perka is an online merchant-customer relationship management service that includes merchant loyalty programs, consumer and merchant messaging, mobile payment and geo-location features (together referred to as the “Perka Service”). While we want you to enjoy the experience of visiting our Site, we also want you to understand that if you would like to use the Perka Service (as a consumer or merchant), you must register and agree to the applicable agreements, legal notices, terms and policies.

You can register for the Perka Service via the Site or Perka applications that are available via an app store or app distribution platform (“Perka App(s)”). During the registration process, you will be asked to agree to the following documents, as applicable: Consumer Terms of Use, Merchant Subscription Agreement and the Privacy Policy. Until you agree to those documents, you will be considered a “Visitor”.

1. Your Use of the Site as a Visitor

As a Visitor you may simply browse the Site and you impliedly agree to use the Site in accordance with these Website Terms of Use (“Terms”). You are not permitted to use the Perka Services until you register and agree to the applicable agreements, legal notices, terms and policies.

1.1 Prohibited Activities

You must not: (a) use any deep-link, robot, spider or other device or process to access or acquire, copy or monitor any portion of the Site; (b) 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 the Site by hacking, password “mining” or any other illegal means; (c) probe, scan or test the vulnerability of the Site or any network connected thereto, nor breach the security or authentication measures on the Site or any network or systems connected thereto; (d) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms in connection with any aspect of the Site; (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site; (f) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or with any other person’s use of the Site; (g) interfere with or disrupt the Site or servers or networks connected to the Site; (h) collect or store personal data about other Visitors or registered consumers or merchants on the Site; (i) copy or reproduce all or any part of the Site, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization; (j) republish, upload, post, transmit, disclose, or distribute (in any format) the Site; (k) remove, relocate or otherwise alter any proprietary rights notices from the Site; (l) modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site in any manner; or (m) exploit the Site in any unauthorized way whatsoever.

1.2 Interruptions and Downtime

When using the Site, 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.

2. Data Privacy

We understand that your privacy is important. Perka has developed a Privacy Policy describing how Perka collects, uses and discloses information. Please review the Privacy Policy on the Site.

3. Perka Intellectual Property

All right, title and interest (including copyrights) in and to the Site (including 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 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.

You agree that the Site (including but not limited to all text, graphics, user interfaces, editorial content, and software used to implement the Site 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. No portion of the Site may be reproduced in any form or by any means and You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site in any manner. Perka reserves the right to change, suspend, remove, or disable your access to the Site, including via the Perka Apps, or other materials comprising a part of the Site at any time without notice. In no event will Perka be liable for such change, suspension, removal or disablement.

4. Disclaimer of Warranties; Limitation of Liability; Waiver; Indemnification

4.1

THE SITE 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 WILL MEET YOUR REQUIREMENTS; (B) THE SITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE QUALITY OF THE SITE WILL MEET YOUR EXPECTATIONS. 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.

4.2

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. 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, nor does it take any responsibility for the goods or services provided by its advertisers or Merchants.

4.3

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 THE SITE.

4.4

IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FOR ANY REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID, UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS SHALL BE LIMITED OR ELIMINATED TO THE MINIUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THESE TERMS OF USE, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PERKA OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR YOUR ACCESS TO THE SITE EXCEED THE AMOUNT OF TWO HUNDRED FIFTY DOLLARS ($250.00), REGARDLESS OF THE FORM OR THEORY OF THE ACTION OR CLAIM.

4.5

BY VISITING AND USING THE SITE, 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 AND YOUR USE OF THE SITE OR ANY ACTION TAKEN BY PERKA AS 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 WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE 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.

5. Miscellaneous Terms

5.1 Amendments

We reserve the right to make changes to these Terms at any time by publishing a revised version on the Site. The revised version of the Terms will take effect from the time at which it is first published. You will be subject to the Terms in force at the time that you access the Site. Your continued access to the Site indicates your acceptance of such updates and changes.

5.2 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, you agree that any dispute relating to the Terms or the Site 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 AND THE SITE.

5.3 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.

5.4 Notices and Communications

All communications and notices to Perka may be sent by email to support@perka.com or by clicking the “Support” link on the Site.