Terms and Conditions for Peekage
BY ACCEPTING THIS AGREEMENT, EITHER BY: A) ACCEPTING THE AGREEMENT ONLINE, B) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE AGREEMENT, OR C) USING, INSTALLING, ACCESSING OR ACTIVATING THE Peekage PLATFORM AFTER BEING MADE AWARE OF THIS AGREEMENT, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM, EACH OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN ECHANTION AND THE CUSTOMER. IF, AFTER READING THE AGREEMENT, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, INSTALL, ACCESS OR ACTIVATE THE ECHANTION PLATFORM.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
THIS AGREEMENT MAY BE AMENDED OR UPDATED BY ECHANTION FROM TIME TO TIME WITHOUT NOTICE. IT IS THE CUSTOMER'S RESPONSIBILITY TO REVIEW THIS AGREEMENT EACH TIME THE CUSTOMER PLACES A NEW ORDER WITH ECHANTION. THE ISSUANCE BY THE CUSTOMER OF AN ORDER FORM AFTER ANY AMENDMENTS OR UPDATES TO THIS AGREEMENT SHALL SIGNIFY THE CUSTOMER'S ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS.
means this Enterprise Agreement and any Order Forms attached hereto.
means the electronic acceptance of an Offer received by a Recipient
means the Peekage Platform, Customer Data, and any information in electronic or tangible form which is clearly marked "Confidential" and which: a) was not previously known to the party receiving the disclosure; b) was not obtained from a third party having no duty of confidentiality to the party asserting confidentiality; or c) was not published or otherwise available from publicly available sources.
means the corporate entity, its directors, officers, employees, contractors, representatives, and/or agents using the Peekage Platform.
means public and non-public personal information of Customer's directors, officers, employees, contractors, representatives, agents, or customers provided by Customer to Peekage in connection with the performance of its obligations under this Agreement, including, but not limited to (a) an individual's first name, last name, address, e-mail address, IP address, telephone number and/or debit or credit card number, (b) non-personally identifiable demographic information such as age, gender, and general location, (c) the fact that an individual has a relationship with Customer, or (d) an individual's account information and/or transactional and other data that is generated, collected or obtained as part of this Agreement.
means the written or electronic documentation relating to the Peekage Platform that Peekage generally makes available to its customers.
means the day Customer accepts this Agreement.
means the amounts to be paid to Peekage by Customer for the Services, as specified in the applicable Order Form.
means the delivery of a Physical Product or Physical Coupon to a User.
means the period during which the Customer has the right to use the Peekage Platform as specified in the applicable Order Form.
means a Physical Product, Printable Coupon, Online Coupon Code, Physical Coupon, or a grant of access to a Sampling Program that allows a User to Claim any of the above.
"Online Coupon Code"
means an alphanumeric code that can be redeemed by a Recipient on a Customer's own or affiliate e-commerce stores for a free or discounted product.
means an order under this Agreement, pursuant to which Peekage and the Customer mutually agree upon the terms and conditions of the Services.
means Peekage or Customer individually or collectively.
means a printed coupon for a free or discounted product that is distributed directly to the Recipient.
means a coupon for a free or discounted product that is available for Recipients to print at home and present into participating retail locations.
means a free consumer packaged good that is distributed directly by mail to the Recipient.
means a User who receives an Offer.
means The eCounter Solutions Inc. a Canadian corporation with offices at 1 King Street West, Suite 4800, Toronto, Ontario, Canada,
means Peekage's proprietary software as a service offering that allows Users to Claim Offers, including all User-facing Sites and all business-facing administrative applications.
means the activities conducted in conjunction with the use of the Peekage Platform by Customer as described in an Order Form.
means the services to be provided by Peekage to Customer, as described in an Order Form.
means one or, collectively, all applications, websites, Facebook pages, or other web-based properties that interface with the Peekage Platform.
means a Party's service marks and trade-marks, including without limitation the names and other distinctive trade-marks or logos which identify such Party.
means a person who visits or connects to the Peekage Platform to Claim an Offer.
means public and non-public personal information of a User provided to and used by Peekage in connection with the provision of the Peekage Platform to Users pursuant to the Peekage Platform Terms of Service, including, but not limited to (a) an individual's first name, last name, address, e-mail address, IP address, telephone number and/or debit or credit card number, (b) demographic information such as age, gender, and general location, (c) information regarding the Sampling Programs that the User has participated in, (d) a User's remarketing opt-in status (e) shipping address, (f) all information contained in an individual's Peekage Platform account profile (including information obtained through Facebook Connect or similar third-party authentication services), and (g) transactional and other data that is generated, collected or obtained by Peekage through the Peekage Platform. For greater certainty, User Data is not included as part of Customer Data.
Nature of Enterprise Agreement
This Agreement contemplates that Peekage and Customer may enter into one or more Order Forms for the use of the Peekage Platform and the provision of the Services as set out therein in connection with a Sampling Program. Each Order Form shall be subject to the terms and conditions of this Agreement and shall become an integral part hereof upon its acceptance by Customer. Each Order Form shall describe the Services required, the Fees for the Services and such additional terms and conditions and other information as shall be required in order to specifically define the Services to be performed. In the event of a conflict between this Agreement and the terms and conditions contained in an Order Form, the terms and conditions in such Order Form shall govern for that particular Order Form. Each Order Form shall be prepared by Peekage and shall reference this Agreement. Changes to an Order Form resulting in additional Services shall not be initiated, and neither Party shall incur any obligations with respect thereto, until an amendment to an Order Form is agreed to by both Peekage and the Customer authorizing a change.
Right to Use Peekage Platform.
Subject to payment of the applicable Fees, Peekage grants to Customer the right to access and use the Peekage Platform solely for Customer's internal business purposes, subject to the terms and conditions hereof and for the License Period set forth in the applicable Order Form. Any rights not granted herein are strictly reserved by Peekage.
The Fees are as set forth in the applicable Order Form.
The Fees do not include applicable taxes. Customer shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, state or provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on Peekage's net income.
The Payment Terms are as set forth in the applicable Order Form. Customer shall pay Peekage the Fees as required herein except in the case where Customer, acting reasonably and in good faith, has disputed an invoice in writing. The Parties agree to discuss any disputed invoice including applicable adjustments, if any, and attempt to reach a resolution. Peekage shall continue to perform all of its obligations under this Agreement notwithstanding the existence of a good faith dispute regarding the Fees.
Peekage reserves the right to charge interest at 1.0% per month on any undisputed amounts past due.
Warehousing Fees: In the event Peekage's distribution facility receives Physical Products or Physical Coupons from Customer, and Customer does not complete an Order Form relating to the distribution of such Offers within 30 days of receipt, Customer agrees to pay Peekage's Warehousing & Handling Fee of USD $1000. If Customer has not completed an Order Form relating to the distribution of such Offers within 90 days of receipt, and Customer has also not requested that Peekage return the Offers at Customer's own expense, Peekage may destroy such Offers at its sole discretion.
Term and Termination
This Agreement will commence on the Effective Date and, subject to the termination hereof in accordance with the terms hereof, shall continue in full force and effect for one (1) year (the "Initial Term"), unless terminated earlier in accordance with the provisions contained herein. Unless either Party notifies the other at least one (1) month prior to the expiration of the Initial Term or the then Renewal Term, this Agreement and the rights and obligations of the Parties hereto shall renew for an additional period of one (1) year (each a "Renewal Term"; the Initial Term and any Renewal Terms collectively referred to as the "Term").
If at the time of expiration or termination of this Agreement there exists an Order Form that is not simultaneously being terminated by the mutual agreement of the Parties and under which one or both of the Parties have unfulfilled obligations, this Agreement shall continue to govern such Order Form until full performance of the Parties' respective obligations under such Order Form.
The term of each Order Form shall commence on the date of the Order Form and shall end at such time as is stated in the Order Form. If no expiration date is stated in an Order Form, such Order Form shall continue in effect until all of the parties' respective obligations thereunder have been fulfilled.
License of Trademarks.
During the Term, Customer hereby grants to Peekage a limited, non-exclusive, non-transferable, royalty-free, worldwide license to use the Customer's Trade-marks in connection with the Services.
Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party's Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third person other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
Privacy and Security of User Data
Peekage warrants that: (i) it has the full corporate power and authority to enter into this Agreement; (ii) it has obtained all licenses, registrations and other authorizations necessary and applicable to its business operations; (iii) it will provide the Services in a professional manner consistent with general industry standards; (iv) the Peekage Platform will perform substantially in accordance with the Documentation; and (v) it will perform the Services and obligations under this Agreement and any Order Form in compliance with all applicable laws, rules, regulations and all applicable industry standards and guidelines, including, without limitation, payment card industry standards. Except as expressly set forth in this Agreement, Peekage makes no representations or warranties or conditions, express or implied, statutory or otherwise, including but not limited to any warranty or condition of merchantable quality or fitness for a particular purpose, with respect to any Services.
Customer warrants that: (i) it has the full corporate power and authority to enter into this Agreement; (ii) it has obtained all consents, releases, waivers and rights (including, without limitation, all rights in copyright, moral rights, trade-mark and trade name rights and other intellectual property rights) necessary for the grant to, and use by, Peekage of the rights and licenses granted to Peekage by the Customer in the Customer Data and the Customer Trade-marks pursuant to this Agreement; (iii) the Customer Data and Customer Trade-marks do not and will not infringe any third party rights including, without limitation, copyright, patent, or trade-mark rights; (iv) the Customer Data does not contain viruses, trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; and (v) its use of the Peekage Platform and the Services does not and will not violate any applicable law.
Limitation of Liability
Except for claims for payment or under Sections 7 and 8, the maximum, aggregate liability of each Party to the other arising out of or relating to this Agreement (whether in contract, tort or under any other theory of liability), shall not exceed the amount paid by Customer to Peekage in the three (3) months preceding the date of the event giving rise to the claim.
Each Party may include the name and logo of the other Party in published lists of customers or vendors in accordance with the other Party's standard trade-mark usage guidelines.
This Agreement shall be construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
This Agreement, together with each Order Form entered into by the Parties, represents the full and complete understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous representations and understandings, whether oral or written.
In addition to any payment obligations arising prior to the termination or expiration of this Agreement, the following sections will survive the termination of this Agreement: Section 7 (Confidential Information); Section 8 (Privacy and Security); and Section 10 (Limitation of Liability).
All consents, approvals, permissions, agreements, notices and other communication required or permitted under this Agreement shall be in writing and shall be deemed delivered when given by electronic mail, personal delivery, fax (confirmed by a mailed copy) first-class mail, postage prepaid, addressed to the intended Party at the address set forth on the first page.
The Parties may modify this Agreement only upon written agreement.