PERKY Terms of Use

Effective January 1, 2021

By accessing and using this site and the related Service, you accept and agree to these Terms of Use. Because Our Terms of Use and Privacy Policy may change from time to time, we urge you to review them each time you use the Service.

Our Service provides you with summary information about certain benefit plans available to You. We hope that this information will help you with thinking about and managing these benefit plans in a way to meet your needs. Because your personal situation is unique, you are responsible for your own benefit plan decisions. You should review all of the applicable benefit plan documents and consider additional information from other sources before making decisions about Your benefit plans and available options.

1. Definitions.

  1. “Force Majeure” means any event or circumstance beyond the reasonable control of the party affected which prevents or delays the performance of such party’s obligations hereunder, including, without limitation, power failure, internet interruptions, computer malfunctions, natural disasters, epidemics, wars, riots, government actions, strikes, labor disputes, fire or acts of God..
  2. “Marks” means any and all of Our trade names, trademark, or service marks, whether or not registered with the Patent and Trademark Office, including, but not limited to, Perky™ and Perky Benefits™.
  3. “We”, “Us”, or “Our” means Perspective Partners, LLC, and its affiliates, subsidiaries, or parent companies.
  4. “Service” means the Perky™ applications and any platform modules available on the Perky™ platform application, whether accessed through our web site or a web site of participating employer or benefits provider.
  5. “You,” for purposes of these Terms of Use, means (1) “if the parties have executed a Perky™ Order Form or License Agreement then “You” as defined in said Perky™ Order Form or License Agreement and (2) any and all authorized users of the Service.

2. Limitation of Use.

  1. The Marks, text, graphics, images, video, metadata, design, organization, compilation, look and feel, advertising, trade dress, and all other protectable intellectual property rights (collectively, the “Content”) available through the Service are Our property and the property of Our agents, vendors, sources, and licensors (collectively, the “Service Providers”) and are protected by trademark, copyright and other intellectual property laws. Unless You have Our written consent, You may not copy, reproduce, sell, publish, distribute or create derivative works from the Content, re-transmit, or otherwise provide access to the Content received through the Service to a third party. You may only use the Service and download and use Content for Your own personal use.
  2. You are permitted to use the Content delivered to You through the Service only on this Service.
  3. You agree not to reverse compile any of the Service’s technology, including, but not limited to, any Java applets associated with the Service.
  4. You agree not to rearrange or modify the Content. You agree not to create abstracts from, scrape, or display Content for use on another application or web site. You agree not to post any Content from the Service to web blogs, newsgroups, mail lists, or electronic bulletin boards, without Our written consent.
  5. You agree not to use the Service for any unlawful purpose. You agree not to transmit any Content that is unlawful, hateful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, is otherwise objectionable, as determined by Us, or promotes or advertises any other company, product or service. We reserve the right to terminate or restrict Your access to the Service if, in Our sole discretion, Your use of the Service may violate any of Our Terms of Use or laws, regulations or rulings, or infringe upon another person’s rights.

3. Data.

  1. You are licensing to Us and Our Service Providers, any information, data, material, or other content (collectively “Data”) You provide through or to the Service.
  2. You agree to provide accurate, true, current, and complete Data about Yourself, authorized users, and You agree to not misrepresent any Data. You understand that the information we provide is necessarily dependent on the input of correct and complete Data.
  3. We may use, modify, display, distribute, create derivative works, and create new material using Your Data to provide additional services to You. By submitting Data, You automatically agree, or promise, that the owner of such Data has expressly agreed that, without any particular time limit, and without the payment of any fees, We may use the Data for the purposes set out in the Service.
  4. You understand and agree that all Data that You allow, submit, post, obtain, email, or transmit to the Service are Your responsibility and not Our responsibility.
  5. We do not control Your Data, nor do We have any obligation to review, refuse, or remove any of Your Data available via the Service. Additionally, We do not guarantee the accuracy, integrity, or the usefulness of Your Data.
  6. We welcome your ideas, suggestions and feedback (collectively, “Feedback”). It is important that You be aware that if You send Us any Feedback, You agree that: (1) your Feedback become Our property and You are not owed any compensation in exchange; (2) none of the Feedback should contain confidential or proprietary information of any third party; (3) We may use or redistribute Feedback for any purpose and in any way; (4) there is no obligation for Us to review your Feedback; and (5) We have no obligation to keep any Feedback confidential.

4. Privacy and Your Data.

Data and other information about You are subject to Our Privacy Policy located at http://www.perkytech.com/privacy-policy/, which is herein incorporated by reference.

5. Suspension of Offerings.

You understand and agree that We reserve the right to modify, suspend, or discontinue any part of, or all of, the Service at any time and that We will not be liable to You or to any third party for doing so.

6. Equitable Relief.

Unless otherwise specified in these Terms of Use, all rights, remedies, and powers of a party are irrevocable and cumulative, and not alternative or exclusive, and will be in addition to all rights, remedies, and powers given hereby and any laws now existing or hereafter enacted. Each party acknowledges and agrees that if it breaches an obligation hereunder, the other party may suffer immediate and irreparable harm for which monetary damages alone may not be a sufficient remedy. Each party also agrees that in addition to all remedies that the non-breaching party may have, the non-breaching party will be entitled to seek, but is not limited to, equitable relief, injunctive relief, specific performance, or any other form of relief in a court of competent jurisdiction to remedy a breach or threatened breach hereof by the breaching party and to enforce these Terms of Use. The breaching party hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue. The breaching party also waives any requirements for the securing or posting of a bond in connection with such remedy.

7. Maintenance.

We may, in Our reasonable discretion, temporarily suspend the Service for the purpose of repair, maintenance, or improvement. We will restore the Service as soon as reasonably practicable.

8. Access and Security.

  1. Transmission of Data. You understand that the technical processing and transmission of Your electronic communications is fundamentally necessary to Your use of the Service. You expressly consent to Our interception and storage of electronic communications and/or Your Data. You acknowledge and understand that Your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Us. You further acknowledge and understand that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, and other electronic means. You agree that We are not responsible for any electronic communications and/or Your Data which are lost, altered, intercepted, or stored without authorization during the transmission of any Data whatsoever across networks not owned and/or operated by Us.
  2. Your access to the Service. You are responsible for obtaining and maintaining all hardware, software, telecommunications equipment, and services (collectively “Your Technology”) necessary to access and use the Service. We are not responsible for the performance, accuracy, compatibility, or adequacy of Your Technology.

9. Third Party Services, Services and Software.

  1. We may link to web sites or services from other companies. We may also offer You the ability to download software from other companies. You agree that We are not responsible for, and do not control, those web sites, services, or software. You are urged to review those companies’ Privacy Policy and Terms and Conditions.
  2. Certain companies, some of which may be listed on the Service, offer products and services related to the Service. We do not warrant any such companies or any of their products or services. The exchange of data or other interactions between You and a company, and any purchase by You of any product or service offered by such company is solely between You and such company.

10. Your Representations and Warranties. You represent and warrant that:

  1. You understand and agree that: the Service only includes summary information regarding available benefit plans and options; You should only make benefit plan decisions after reviewing the applicable benefit plan documents in their entirety; in the event of any discrepancy between the summaries provided by the Service and the terms of the benefit plan documents, the terms of the benefit plan documents control and govern; and We are not a provider of any of the benefit plans, and you will look only to the applicable provider with respect to the provision of benefits to You.
  2. You have all necessary right, power, and authority to enter into these Terms of Use and to perform the acts required of You under these Terms of Use;
  3. You own or otherwise have the right to use and/or post Your Data on the Service and that the use of Your Data will not infringe or violate any of the rights of any third party pursuant to applicable law;
  4. You will not harass or cause distress or inconvenience to any person via the transmission of obscene or offensive data;
  5. You will not disrupt the normal flow or access to, or use of, the Service;
  6. You agree to comply with all rules regarding online conduct and acceptable data, content, or materials including, but not limited to, federal and state laws, rules, regulations, and statutes; and
  7. You will comply with all applicable laws regarding the transmission and technical data export from the United States of America or the country in which You reside.

11. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. YOUR USE OF THE SERVICE AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. YOUR ACCESS TO, AND USE OF, THE SERVICE IS ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE SERVICE, INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE. THESE DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY REPRESENTATIONS OR IMPLIED WARRANTIES OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
  2. WE MAKE NO WARRANTY THAT:
    1. THE SERVICE WILL MEET YOUR REQUIREMENTS;
    2. THAT SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
    3. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE;
    4. THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; OR
    5. ANY ERRORS IN TECHNOLOGY WILL BE CORRECTED.
  3. ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.
  4. WE DO NOT GIVE LEGAL, TAX OR INVESTMENT ADVICE OR ADVOCATE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT. YOU SHOULD ALWAYS SEEK THE ASSISTANCE OF A PROFESSIONAL FOR Legal, TAX AND INVESTMENT ADVICE. TO THE EXTENT THAT YOU ARE A FINANCIAL PROFESSIONAL, YOU ACKNOWLEDGE ON BEHALF OF YOURSELF AND YOUR REGISTERED REPRESENTATIVES, THAT THE INFORMATION, DATA, ANALYSES, OR OTHER OPINIONS CONTAINED IN ANY REPORT, WHETHER IN TEXT, GRAPHIC, NUMERIC, OR OTHER FORM, DO NOT CONSTITUTE AND WILL NOT BE CONSTRUED AS INVESTMENT OR OTHER ADVICE OFFERED BY US. REPORTS ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. WE HAVE NO RESPONSIBILITY FOR THE INVESTMENT OF FUNDS CONTAINED IN YOUR RETIREMENT ACCOUNT OR HEALTH SAVINGS ACCOUNT NOR FOR THE SUITABILITY OR RESULTS OF ANY SUCH INVESTMENT. WE WILL NOT BE CONSIDERED AN “EXPERT” UNDER THE SECURITIES ACT OF 1933. NEITHER YOU NOR ANY USER WILL NAME US AS AN EXPERT UNDER ANY CONDITION WITHOUT OUR EXPRESS WRITTEN CONSENT.
  5. ALL USERS AND ALL CUSTOMERS ACKNOWLEDGE THAT WE ARE NOT AN INVESTMENT ADVISOR UNDER THE INVESTMENT ADVISORS ACT OF 1940 AND THAT REPORTS ARE NOT DESIGNED OR INTENDED TO SATISFY ANY LAWS OR REGULATORY REQUIREMENTS GOVERNING INVESTMENT ADVISORS. WE DO NOT WARRANT THAT ANY REPORTS PROVIDED BY THE SERVICE COMPLY WITH THE SECURITIES LAWS OR REGULATIONS OF ANY JURISDICTION OR REGULATORY BODY. WE WILL HAVE NO LIABILITY FOR THE PROVISION OF INVESTMENT ADVICE PROVIDED TO YOU BY ANY THIRD PARTY.

12. LIMITATION OF LIABILITY.

YOU AGREE THAT NEITHER WE NOR ANY OF OUR AFFILIATES, ACCOUNT PROVIDERS, AGENTS, VENDORS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR LICENSORS (COLLECTIVELY FOR THIS SECTION 12 ONLY, “THE PARTIES”) WILL BE LIABLE (INDIVIDUALLY, JOINTLY OR SEVERABLY) TO YOU OR ANY OTHER THIRD PARTY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (COLLECTIVELY, THE “EXCLUDED DAMAGES”). EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES. YOU FURTHER AGREE THAT THE PARTIES ARE NOT LIABLE TO YOU FOR EXCLUDED DAMAGES EVEN IF THE PARTIES HAVE BEEN ADVISED OF, OR COULD HAVE FORESEEN THE POSSIBILITY OF, SUCH EXCLUDED DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES; (iii) PRODUCTS, DATA, CONTENT, INFORMATION, OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICE; (iv) MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICE; (v) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA; (vi) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICE; (vii) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE THIRD PARTY ACCOUNT PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (viii) ANY OTHER MATTER RELATING TO THE SERVICE. WE WILL NOT BE LIABLE FOR THE EXCLUDED DAMAGES WHETHER OR NOT THE EXCLUDED DAMAGES ARE CHARACTERIZED IN NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY, CONTRACT, OR OTHER THEORY OF LIABILITY. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION 12 TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

13. Indemnification.

You agree to defend, hold harmless, and indemnify Us and Our subsidiaries, affiliates, officers, members, managers, directors, shareholders, agents, vendors, Service Providers, employees, and licensors from and against any third party claim arising out of or related to Your use of the Service, including, but not limited to, any liabilities, claims, losses, damages, suites, judgments, litigation costs, arbitration costs, and attorney’s fees arising out of or related to (i) Your Data infringing or misappropriating any intellectual property rights or any other proprietary rights of any third party and (ii) Your use of any of the Service in violation of these Terms of Use. We will: (a) promptly notify You of the claim; (b) give You full authority, information, and assistance to defend the claim; and (c) give You sole control of the defense of the claim and all negotiations for its compromise or settlement (provided that any such compromise or settlement will unconditionally release Us from all liability and will not contain any admission of wrongdoing by Us). All amounts We incur or suffer under this Section 13 will be considered direct damages.

14. Force Majeure.

Performance by any party of any obligation hereunder is excused if and for so long as such breach or failure to perform is caused by a Force Majeure, and prompt notice thereof has been given to the other party. If any party fails to perform any duty or obligation hereunder as a result of a Force Majeure, said party is required to fulfill its obligations hereunder within a reasonable time after the Force Majeure ceases to exist.

15. Relationship of the Parties.

  1. You understand and agree We are not being engaged to perform or assume any fiduciary functions, including, but not limited to, those of any plan administrator, with respect to You or any employee benefit plan in which You are a participant, plan administrator, or plan sponsor. In this regard, You acknowledge that this Service is ministerial in nature. If We are deemed to be a fiduciary with respect to this Service, Our responsibility as a fiduciary will extend only to those activities deemed to be fiduciary activities under applicable law and will in no event extend to any acts or omissions of any other third party. You understand and agree We are not a law firm and are not being engaged to provide legal advice. In addition, You understand and agree that these Terms of Use do not create any partnership, agency, joint venture, or any other such relationship between the parties. No party is granted any express or implied right or authority to assume or to create any obligations on behalf of, or in the name of, another party, or to bind another party in any manner whatsoever.
  2. You acknowledge that the information, data, analyses, and opinions contained in any Service report or output, whether in text, graphic, numeric, or other form, unless otherwise explicitly indicated in writing, does not constitute, and will not be construed as, investment or other advice offered by Us. Reports and output are provided for educational and informational purposes only. We have no responsibility for the investment of funds contained in Your retirement account or health savings account (or for plan sponsors, those of any of your current or former employees) nor for the suitability or results of any such investment.
  3. Law. These Terms of Use are governed by, and construed in accordance with, the laws of the State of New York, without reference to principles of conflict of laws.
  4. Protection of Proprietary Rights. You will not remove any Marks or proprietary copyright, patent, trademark, design right, trade dress, trade secret, service mark, or other proprietary rights legend from the Service or any of Our material comprising any part of the Service.
  5. Third Parties. Unless stated otherwise herein, nothing in these Terms of Use either express or implied is intended, or will be construed, to confer upon, or give any third party (other than the parties and their respective successors and permitted assigns), any right or remedy under or by reason of these Terms of Use.
  6. Waiver. Failure by one party to insist upon strict performance of any provision of these Terms of Use by another party will not be deemed a waiver by such party of its rights or remedies, or a waiver by it of any subsequent default by such other party. No waiver is effective unless it is in writing and duly executed by the party entitled to enforce the provision being waived.
  7. Amendment. You acknowledge and agree that these Terms of Use may be amended at any time without notice to You. The current Terms of Use can be accessed at any time via the Terms of Use link at the bottom of the Service login page. You signify that You agree to be bound by any updated Terms of Use by accessing the Service after changes are made and posted to these Terms of Use.
  8. Severability. If any provision of these Terms of Use is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed to be valid, legal, and enforceable to the maximum extent permitted by applicable law, while preserving its original intent. The invalidity of any part of these Terms of Use will not render invalid the remainder of the Terms of Use.
  9. Gender. All pronouns and any variation thereof are deemed to refer to the masculine, feminine, neuter, singular, and/or plural as the context may require.
  10. Parties Bounds. These Terms of Use are binding upon and inure to the benefit of each party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in Section 11 below.
  11. Assignment. You do not have the right, directly or indirectly, to assign, sublicense, transfer, or pledge any of Your rights, duties, and obligations hereunder to any third party, whether by agreement, operation of law or merger, or in connection with any sale of assets without Our prior written consent, which consent may be withheld by Us, in Our sole discretion. Any assignment in violation of this Section 15(k) is null and void.
  12. Survivability. Notwithstanding anything contained in these Terms of Use to the contrary, all representations, warranties, and agreements will survive and continue to bind the parties after the expiration or earlier termination of these Terms of Use, to the extent and for so long as may be necessary to give effect to the rights, duties, and obligations of the parties pursuant to these Terms of Use, subject to any applicable statutes of limitation.
  13. Cookies. We employee cookie technology in order to allow You to stay logged in when navigating the Service. If You close the web browser or cease activity on the Service for an extended period of time, a logout will occur and You will have to log in again before viewing additional Content or separate areas of the Service.
  14. Headings. The headings used in these Terms of Use are inserted for convenience only and do not describe, interpret, define, or limit the scope, extent, or intent of these Terms of Use.