Terms of Use

The following terms and conditions (“Terms of Use”) govern all use of the Performitiv cloud-based platform and any other Performitiv web site, widget, mobile application or other online property (collectively, the “Platform”). The Platform is owned and operated by Performitiv LLC (“Performitiv”). The Service is oﬀered subject to your acceptance without modiﬁcation of all of these Terms of Use, and all other terms and conditions you agreed to when establishing an account on the Platform (collectively, this “Agreement”).

Please read this Agreement carefully before accessing or using the Platform. By accessing or using any part of the Platform, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access the Platform or use any services.

Your account

If you create an account on the Platform, you are responsible for maintaining the security of your account and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must not use Performitiv to send unsolicited messages that could be considered spam. You must immediately notify Performitiv of any unauthorized uses of your account or any other breaches of security. Performitiv will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

Standard support is available from 9:00am to 5:00pm Central Time, Monday to Friday (excluding Performitiv holidays) during which time Performitiv will respond to email and phone requests.

Unacceptable use

You may not, under any circumstances: (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Platform, (b) use the Platform in any manner to provide service bureau, time-sharing or other computer services to third parties, (c) use the Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with the Platform, (d) remove or obscure any identification, copyright or other proprietary or restrictive notices or legends contained or included in any of the Platform, (e) modify, incorporate into or with other software, or create a derivative work of the Platform or any portion thereof or (f) copy, copy/edit or use in anyway standard content (ex. assessment templates, KPI libraries) within the Platform in another Platform to collect, process and report the outputs of the content.

Payment and renewal

Certain portions of the Platform may be provided for a fee or other charge. If you choose to use paid elements of the Platform, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges. Performitiv may add new services for additional fees and charges, or change fees and charges for existing services, at any time in its sole discretion.

No refunds

If you cancel your subscription, you will not receive a refund, credit or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Platform, any content or data associated with your account, or for anything else.

Subscription terms

You acknowledge and agree that you shall be responsible for paying all fees due for the full term of your subscription, whether or not you cancel such subscription prior to the end of such term and unless otherwise agreed by the parties, paid subscriptions will be billed in advance on a monthly or annual basis. You further acknowledge and agree that the term of your subscription shall automatically renew for additional successive terms equal to the period of your initial term, unless you provide Performitiv with notice of your intent not to renew your subscription at least sixty (60) days prior to the end of the then-current subscription term. In the event you upgrade your subscription, the new subscription fees will take effect immediately and be prorated for the rest of the month if paying monthly, and if prepaid annually, the proration will happen via separate invoice. If paying via payment method other than credit card then we will charge you at month end for remainder of your term. If you downgrade, no adjustment will be made until your next billing period. A valid credit card that you have the right to use is required for any paid subscription, unless another form of payment was agreed upon in writing between the parties. In the event a multi-year Term is cancelled before the end of the full Term, a cancellation fee equivalent to unearned but taken multi-year discounts is due at cancellation.

Payment information

All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Platform must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Platform at the prices in eﬀect when such charges are incurred and to pay such transactions upon receipt of an invoice. You shall pay all applicable subscription fees, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Performitiv by any authority in connection with or arising from the Platform and/or this Agreement, excluding taxes based upon Performitiv’s net income. You shall pay each invoice issued by Performitiv by the applicable due date and in the currency speciﬁed by Performitiv. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. Unless otherwise specified, invoices are annual prepayments, due upon receipt.

Intellectual property

All right, title and interest, including all copyright and other proprietary rights, in and to the Platform and any content made available on or through the Platform is owned by Performitiv and its licensors. This Agreement does not transfer from Performitiv to you any Performitiv or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Performitiv.

Collection and use of customer data

In connection with any data you make available to Performitiv through the Platform (“Customer Data”), you hereby represent and warrant that (a) any personally identiﬁable information about your end users that you provide to Performitiv was, is, and will be collected with the informed consent of such end users, (b) you have obtained all necessary rights, releases, and permissions to provide such Customer Data to Performitiv, and (c) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies. Performitiv takes no responsibility and assumes no liability for any Customer Data that you or any other User or third party provides, posts, publishes or transmits over the Platform. You shall be solely responsible for Customer Data and the consequences of using, disclosing, or transmitting it, and you agree that Performitiv is only acting as a passive conduit. You agree that Performitiv may use Customer Data, not associated with any individual or organization, in an anonymized, aggregate format for purposes of providing benchmark points of reference within the Platform.

Use of your name

You agree that Performitiv may use your name, logo, or any other identifying words or marks used by and/or associated with you to identify you as a customer of Performitiv, for use in connection with marketing, promoting, and advertising the Platform, for use in customer references and case studies involving you, and for use in other activities related to Performitiv’s business.

Changes

Performitiv may from time to time oﬀer new services and/or features through the Platform (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Platform.

Termination

Performitiv may terminate your access to all or any part of the Platform at any time, with or without cause, with or without notice, eﬀective immediately. If you wish to terminate this Agreement or your Performitiv account (if you have one), you may simply discontinue using the Platform subject to the ‘Subscription terms’ in this Agreement or if more explicit, the specific Statement of Work cancellation terms agreed to by the parties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Disclaimer of warranties

The Platform is provided “as is”. Performitiv and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, ﬁtness for a particular purpose and non-infringement. Neither Performitiv nor its suppliers and licensors, makes any warranty that the Platform will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Platform at your own discretion and risk.

Limitation of liability

Neither the Platform nor any content on or accessed through the Platform shall be considered a substitute for the independent investigations and the sound technical and business judgment of the user. Accordingly, you should consult with a professional advisor familiar with your particular factual situation for advice or service concerning specific matters.

Performitiv collects information provided on the Platform from third party sources. The data reported on or made available through the Platform may be self-reported subjective opinions from the third-party sources, and Performitiv has not independently verified the accuracy of such data nor validated or audited this information. Accordingly, Performitiv makes no representations or warranties with respect to the accuracy of the data.

Links on the Platform may lead to servers maintained by individuals or organizations other than Performitiv. Performitiv makes no representation or warranty regarding the accuracy, timeliness, suitability or any other aspect of the information located on such servers and neither monitors nor endorses such servers or content.

NEITHER PERFORMITIV NOR ANY OF ITS PARTNERS, SENIOR MANAGERS, ADVISORY BOARD MEMBERS, BOARD MEMBERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKES ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, TIMELINESS, SUITABILITY OR ANY OTHER ASPECT OF THE PLATFORM OR ANY CONTENT ON OR ACCESSED THROUGH THE PLATFORM FOR ANY PURPOSE, ALL OF WHICH IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. PERFORMITIV HEREBY DISCLAIMS ALL WARRANTIES AND OBLIGATIONS WITH REGARD TO THE PLATFORM OR ANY CONTENT ON OR ACCESSED THROUGH THE PLATFORM, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES AND OBLIGATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

IN NO EVENT SHALL PERFORMITIV OR ANY OF ITS PARTNERS, SENIOR MANAGERS, ADVISORY BOARD MEMBERS, BOARD MEMBERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LIABILITY FOR LOSS OF USE, DATA OR PROFITS), WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS, ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, ANY CONTENT ON OR ACCESSED THROUGH THE PLATFORM, OR ANY COPYING, DISPLAY OR OTHER USE THEREOF, OR ANY RELIANCE ON THE PLATFORM OR ANY SUCH CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER PERFORMITIV NOR ANY OF ITS SENIOR MANAGERS, ADVISORY BOARD MEMBERS, BOARD MEMBERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE TO ANY CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY INACCURACY CONTAINED IN THE DATA MADE AVAILABLE BY OR THROUGH THE PLATFORM, OR ANY ERRORS OR OMISSIONS IN THE DATA OR PLATFORM CONTENT, REGARDLESS OF THE CAUSE OF SUCH INACCURACY, ERROR OR OMISSION.

General representation and warranty

You represent and warrant that (i) your use of the Platform will be in strict accordance with the Performitiv Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) you will not use the Platform to infringe or misappropriate the intellectual property or other proprietary rights of any third party.

Indemniﬁcation

You agree to indemnify and hold harmless Performitiv, its contractors, and its licensors, and their respective directors, oﬃcers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Platform, including but not limited to your violation of this Agreement.

Miscellaneous

This Agreement constitutes the entire agreement between Performitiv and you concerning the subject matter hereof, and they may only be modiﬁed by a written amendment signed by an authorized executive of Performitiv. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Platform will be governed by the laws of the state of Illinois, U.S.A., excluding its conﬂict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Chicago, Illinois. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be ﬁnally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Chicago, Illinois, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reﬂect the parties’ original intent, and the remaining portions will remain in full force and eﬀect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Performitiv may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the beneﬁt of the parties, their successors and permitted assigns.