Terms of Service
Last Updated: December 19, 2020
Performance Acumen Enterprises, LLC (“PAE”, “we” or “our”) provides access to a proprietary technology platform for users to provide confidential data concerning commercial construction service providers (“Service Providers”) using the Platform’s proprietary contractor rating system BESTpractice™ (the “Platform”). These TOS govern your use of our Platform.
By registering, accessing or using our Platform, you are agreeing to abide by these Terms of Service (“TOS”), and this agreement to our TOS constitutes a legally binding contract between you and PAE. If you do not agree to these TOS, do not register, access or use our Platform. If you wish to terminate this contract, at any time you can do so by closing your account and no longer accessing or using our Platform. PAE may revise and update these TOS at any time. Please review our TOS periodically for changes. Your continued use of the Platform will mean you accept the revised TOS.
1. Your Obligations
By accessing the Platform, you represent that:
· you are at least 18 years of age;
· you are an employee or authorized representative of the organization identified in your registration information;
· that you have been duly appointed as a “Customer Representative” by the organization identified in your registration information (“Authorized User”); and
· all of your answers to our questions will be your own answers, provided truthfully and according to your personal knowledge.
Furthermore, as an Authorized User, you agree that you will:
· provide only accurate and truthful information about yourself and any other person or entity that you are asked to review. In particular, you agree that all information you provide in response to our questions about third parties will be, to your direct knowledge, completely accurate and truthful, and not intentionally misleading;
· only provide information about Service Providers that you have engaged with to perform actual services;
· update all the information you provide if any such information changes during the time that you are an Authorized User;
· notify us immediately of any change in your eligibility to use the Platform, (for example, if you are no longer an Authorized User of a customer of ours);
· notify us immediately of any known or suspected breach of security or unauthorized use of your registration credentials for the Platform;
· use the Platform in a respectful, professional manner; and
· comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, and regulatory requirements.
You also agree not to engage in any of the following while using our Platform:
· upload, post, or transmit content through the Platform that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, slanderous, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
· impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
· use another person’s sign-in details to access the Platform, nor provide your sign-in details to any other person or entity;
· violate the intellectual property rights of PAE or third-parties, including, without limitation, copying or distributing content, technology and/or materials;
· upload, post, email or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
· imply or state that you are affiliated with or endorsed by PAE without our express consent;
· rent, lease, loan, trade, sell/re-sell or otherwise monetize the Platform or related data or access to the same, without PAE’s express consent;
· use bots or other automated methods to access the Platform, add or download contacts, send or redirect messages;
· monitor the Platform’ availability, performance or functionality for any competitive purpose;
· engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Platform;
· stalk or otherwise harass another user of our Platform or any of our employees;
· harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
· take any action that would undermine the review and rating process under the Platform;
· knowingly provide or submit false or misleading information;
· upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or content for any purposes not authorized by these TOS;
· upload, post, email or otherwise transmit any material that contains software viruses, Trojan horses, worms, time bombs, spiders, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
· attempt to interfere with or disrupt our servers or networks; and
· intentionally or unintentionally violate any applicable local, state, national or international law or any regulations having the force of law.
We have the right, but not the obligation, to monitor the Platform to determine compliance with these TOS and any other operating rules we have established and to satisfy any law, regulation or authorized government request. We have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Platform. We reserve the right to restrict, suspend, or terminate your account if you misuse the Platform or if you violate these TOS.
3. Payment Information
PAE does not collect credit card or bank account information from its users. Some of our features of our Platform require you to pay a fee. You agree to pay these fees and any other charges incurred in connection with your username and password (including any applicable taxes) at the rates in effect when the charges were incurred. Our Platform allow you to use Stripe® to process your credit card transactions. We will process all charges automatically through Stripe. All fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. All fees and charges are nonrefundable, except in instances where we are unable or unwilling to provide the requested services.
4. Information About Service Providers
PAE does not endorse and is not responsible or liable for any information provided through the Platform by other users or services provided through any Service Provider rated on our Platform. You agree that should you use or rely on such information, PAE is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging any Service Provider. Your engagement with any Service Provider is between you and the Service Provider and you understand you are responsible for taking all necessary precautions.
You agree that PAE is not responsible for the performance or services of any Service Provider or for your interactions and dealings with them, and you waive the right to bring or assert any claim against PAE relating to any interactions or dealings with any Service Provider, and release PAE from any and all liability for or relating to any interactions or dealings with any Service Providers.
Without limiting the foregoing, your correspondence or business dealings with or use of any Service Provider found on or through the use of the Platform, including payment for and delivery or fulfillment of related services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such Service Provider. You agree that PAE shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of information about such Service Provider on our Platform.
5. Your Content
Authorized Users alone are responsible for the content they provide on the Platform and through the Platform (“User Generated Content”). Authorized User assumes all risks associated with User Generated Content, including anyone’s reliance on its quality, accuracy, or reliability, and any risks associated with personal information you disclose. Each Authorized User represents that he/she owns or has the necessary permissions to use and authorize the use of the content comprising User Generated Content that you provide to the Platform.
As an Authorized User, you may expose yourself to liability if, for example, your User Generated Content, including the responses you provide to our questions, contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; violates or advocates the violation of any law or regulation; or violates these TOS.
6. PAE’s Intellectual Property Rights
The contents of the Platform are protected by copyright, trademark and other intellectual property laws and, except as otherwise expressly set out in these TOS, may not be used, copied, reproduced, sold, published, distributed, displayed, retransmitted or modified, without the express prior permission of PAE.
“Performance Acumen Enterprises™”, “PAE™”, “BESTpractice™”, and other graphics, logos, designs, page headers, button icons, scripts, and service names available on the Platform are the trademarks of PAE. These trademarks may not be used, including as part of trademarks and/or as part of domain names, keyword advertisements, or email addresses, in any manner that is likely to cause confusion.
7. Your Intellectual Property Rights
As between you and PAE, you own your User Generated Content but by providing any User Generated Content to our Platform or through our Platform, you understand that PAE does not guarantee any confidentiality with respect to the User Generated Content and hereby grant a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, transferable license (with right to sub-license) to PAE a to use, reproduce, distribute, prepare derivative works of, and display your User Generated Content in connection with the provision of the Platform and otherwise in connection with the provision of our business Platform (including industry reporting), without any further consent, notice and/or compensation to you or others. Without limiting any other provision of these TOS, you represent and warrant that any User Generated Content about Service Providers is accurate and truthful, to the best of your knowledge.
If we would like to publish your name, voice, likeness and other personal information that you provide in the course of using our Platform for advertising, marketing, publicity and promotional activities, we will ask you for your permission first.
You hereby release and waive all claims against PAE with respect to any intellectual property or other proprietary rights, rights of privacy and publicity, rights of attribution, or any other liability under the applicable laws.
8. Copyright Infringement Complaints
If you believe that your copyrighted work appears on our Platform in a way that constitutes copyright infringement, please send a written notice containing the following information:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
· A description specifying the location on our Platform of the material that you claim is infringing;
· A description of the copyrighted work that you claim has been infringed;
· Your contact information;
· A statement by you, of your good faith belief that the material is infringing and its use is not authorized;
· A statement by you, made under the penalty of perjury, that the information you provided is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Please send your notice to the following address:
DMCA Designated Agent
Performance Acumen Enterprises, LLC
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a written counter-notice containing the following information:
· Your physical or electronic signature;
· Identification of the material removed;
· A statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or was misidentified;
· Your full name and contact information; and
· a statement that you consent to the jurisdiction of the Federal District court: (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the District of Massachusetts (if your address is located outside the United States) and, in either case, that you will accept service of process from the complainant or its agent submitting the notice.
9. Your Privacy
Please know that PAE respects your privacy. A complete statement of our current privacy practices can be found here (“Privacy Notice”). Our Privacy Notice is expressly incorporated into these TOS by this reference.
10. Governing Law
Massachusetts law governs these TOS, as well as any claim, cause of action or dispute that might arise between you and PAE, without regard to conflict of law or choice of law rules. We make no representation that our Platform is appropriate, legal or available for use in locations outside of the United States. If you choose to access our Platform you agree to do so subject to the laws of Massachusetts and the United States.
11. Modifications and Interruption to Platform
You acknowledge and accept that PAE does not guarantee continuous, uninterrupted or secure access to the Platform and operation or use of our Platform may be interfered with or adversely affected by numerous factors or circumstances outside of our control. PAE shall not be liable should for any modifications, interruptions, outages, downtimes or disruptions to the Platform. PAE reserves the right to modify or discontinue the Platform with or without notice.
12. Disclaimer or Warranties
YOU USE THE PLATFORM AT YOUR OWN RISK. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, TIMELINESS OR EFFICACY OF THE CONTENT OF THE PLATFORM AND ASSUME NO LIABILITY OR RESPONSIBILITY TO YOU FOR ANY ERRORS, MISTAKES, OR INACCURACIES IN ANY CONTENT OR IN THE SERVICES PROVIDED BY US. YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE PLATFORM AND THE CONTENT AND SERVICES AVAILABLE THROUGH IT IS ON AN “AS-IS”, “AS AVAILABLE” BASIS AND WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, OFFERINGS, CONTENT, AND MATERIALS AVAILABLE THROUGH THE PLATFORM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN OUR LIABILITY AND RESPONSIBILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
13. Limit of Liability
YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PHYSICAL INJURY, LOSS OF LIFE, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PAE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE PLATFORM; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON OR THROUGH THE PLATFORM OR ANY WEBSITES LINKED TO THE PLATFORM; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS, SERVICES OR CONDUCT OF ANY THIRD-PARTY ON OR THROUGH THE PLATFORM; OR (F) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT SHALL PAE’S TOTAL LIABILITY TO YOU OR ANY INDIVIDUAL OR ENTITY FOR WHOM YOU ARE RESPONSIBLE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE – OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO PAE IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, PAE’S LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.
You agree to defend, indemnify, and to hold harmless PAE, together with its officers and directors, from any and all liabilities, penalties, claims, causes of action, and demands brought by third-parties (including the costs, expenses and attorneys’ fees on account thereof) (collectively, “Claims”) arising, resulting from or relating to: (a) your use of the Platform or your inability to use the Platform; (b) an allegation that you violated any representation, warranty, covenant or condition in these TOS, including in connection with any Claim that any content provided through the Platform is untruthful, defamatory, libelous or otherwise violates the rights of any third party; (c) your intentional or negligent misrepresentation or misuse of information, including confidential information and intellectual property. Your agreement to defend, to indemnify, and to hold PAE (and its officers and directors) harmless applies whether any Claim against PAE is based in allegations of violation(s) of law or contract or tort (including strict liability), and regardless of the form of action, including but not limited to your violation of any third-party rights, a Claim that the Platform caused damage to you or to any third party and/or your use and access to the Platform. This indemnification section shall survive your termination of or cessation of use of the Platform.
15. Third-Party Sites and Linked Content
If any provision of these TOS are deemed unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected and shall remain valid and enforceable to the fullest extent under law. You agree that these TOS and any other agreements referenced herein may be assigned by PAE, in our sole discretion, to a third party in the event of a merger or acquisition. These TOS shall apply in addition to, and shall not be superseded by, any other written agreement between us in relation to your access and use of the Platform.
17. Contact Us
If you have any questions or comments regarding these TOS, please contact us at firstname.lastname@example.org .