TERMS OF SERVICE

These terms of service were last modified September 11, 2024.

Welcome to Per4mance, a technology service (“Service”) operated by Unisonworx Inc. (“Per4mance”,”we”,”our”, or “us”), and offered via the per4mance.io and/or unisonworx.com website (“Our Website”), that enables home services businesses (“Per4mers”, or “you”) to aid run your business operations. 

ACKNOWLEDGEMENT & ACCEPTANCE

By accessing or using the Service, you represent that you have read, understood, and agree to be bound by these Terms of Service (the “Terms of Service” or “Agreement”). This Agreement, together with the Privacy Policy, applies to Per4mers who access, enroll in, or use the Service (“Users,” used interchangeably with “you” and “Per4mer” throughout this Agreement). “User” means you as an individual, as well as the employer or entity on whose behalf you are using the Service, and you represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and such employer or entity. “User” also includes consumers that use any of our services, as applicable. You acknowledge and agree that we may amend this Agreement at any time by posting a revised version of this Agreement on the Service or Our Website or by notifying you directly in our sole discretion. Your continued use of the Service after any changes are made to this Agreement shall constitute your consent to such changes. We do not and will not assume any obligation to notify Users of any changes to this Agreement. You are responsible for remaining knowledgeable about the terms of the Agreement. You further acknowledge that Per4mance’s services are designed solely for businesses, and not for consumers, and that purchase and use of Per4mance’s services constitutes a business-to-business transaction.

THE SECTION BELOW LABELED “DISPUTE RESOLUTION; MANDATORY ARBITRATION” OF THESE TERMS OF SERVICE CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, THESE TERMS OF SERVICE CONTAIN AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, AND SUBJECT TO CERTAIN PROVISIONS BELOW: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

PER4MANCE SERVICES

Per4mance offers you the use of our mobile and web-based Services which consist of time management and tracking tools, subject to our various types and levels of subscription plans, as well as add-ons for additional fees.  We also offer Per4mers the ability to access certain other services through Per4mance, via our Third-Party Providers (defined below), including but not limited to Payroll Processing, and Apps available in the Per4mance App Store (See section below titled “Per4mance THIRD-PARTY OFFERINGS”).  Your use of our Service is solely authorized for supporting your business solely for your personal use. 

USE OF THE SERVICE

The Service is offered to Users who are 18 years of age or older and reside in the United States. Use of the Service is permitted only by individuals who can form legally binding contracts under applicable law. If you do not qualify, do not use the Service. By using the Service, you represent and warrant that you are 18 years of age or older and otherwise meet all eligibility requirements herein. You further represent that all information you provide to us (including any customer and employee information) or any of our Third-Party Providers and vendors shall be accurate, and that you shall have all necessary rights to provide and use such information for use as contemplated herein. In addition you represent and warrant that you will comply with all applicable federal, state and local laws, rules and regulations with respect to your use of the Service.

LICENSE

Subject to User’s compliance with this Agreement, Per4mance hereby grants User a revocable, non-exclusive, non-transferable right to access and use the Service, solely in the conduct of User’s normal course of business, and in accordance with this Agreement. User understands and agrees that the Service is provided under license to User, not being sold to User, and User does not gain any ownership interest of any kind in the Service under this Agreement.

Per4mance will not be liable if, for any reason, all or any part of the Service is unavailable at any time or for any period. From time to time, Per4mance may restrict access to some parts of the Service, or the entire Service, to Users. Per4mance does not make any representations or guarantees regarding uptime or availability of the Service.

SERVICE DATA YOU PROVIDE AS A PER4MER

In using the Service, You may provide us, directly or indirectly, with information about you or your business, including but not limited to the following types of information (which shall be referred to collectively as “Service Data”): 

Customer Data

Individual customer data entered or imported by Per4mers shall remain the property of the Per4mer. We do not sell, rent, or trade your personal information to third parties for monetary or other valuable consideration. Your data is only shared with trusted service providers (e.g., hosting, payment processors) strictly to deliver our Services, under contractual confidentiality obligations. We do not distribute your information for marketing or other purposes without your explicit consent. Your data remains within our systems or those of our compliant partners. We do not reproduce or repurpose your information outside the scope of this Privacy Policy. Limited disclosures may occur if required by law (e.g., court orders) or to protect our legal rights (e.g., fraud investigations).

Job Classification Data

Job classification data entered or imported by Per4mers shall remain the property of the Per4mer. We will not share the individual job classification data with a third party without the consent of the Per4mer, however, we reserve the right to anonymize and aggregate job classification data, and use such data for our business purposes. 

Feedback

In the event that you provide us with any feedback regarding the Service, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the service or the Service (“Feedback”), you hereby assign to us all rights, including intellectual property rights, in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate. 

Login information

You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. User is responsible and liable for: (i) User’s conduct; and (ii) any use of the Service through User’s information technology systems or environment, whether authorized or not. We have the right to disable any user name, password, or other identifier, whether chosen by User or provided by Per4mance, at any time if, in our opinion, User has violated any provision of this Agreement. 

Third-Party Vendor Login

In the event you elect to share your login and password information for a vendor of yours with Per4mance to allow Per4mance to take actions on your behalf upon your instructions, you represent and warrant that you are authorized to share such information with us, and that you are hereby authorizing us to take any actions that you direct us to take. 

LICENSE TO SERVICE DATA / HOW WE USE SERVICE DATA

By submitting Service Data or any other content on or through our Service, you hereby grant us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, fully paid license (with the right to sublicense) to use, copy, transmit, modify, display and distribute such content (i) to the extent necessary to provide the Service; (ii) for internal business purposes; (iii) to evaluate your eligibility to use our Service and Third-Party Services, in our sole discretion, as well as to create and present to you relevant new offerings from Per4mance and our partners, (iv) to improve, modify and adapt our Service, and (v) for any other lawful purpose. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to the Service Data and any content or materials that you submit to your Per4mance account or the Service.

Such use is subject to our rights and obligations set forth in our privacy policy in effect as posted here. Examples of use may include, without limitation, the following:

1.Provide relevant data to our Service and Third-Party Providers (defined below), vendors and applications (“Apps”) that utilize functionality from your account to fulfill their services and evaluate your eligibility for additional services; 2. Generate payroll csv and pdf timecards; 3. Verify your identity, and prevent fraud or other unauthorized or illegal activity; 4. Analyze and create anonymized aggregate industry trends and analytics to improve the Service and create new features and offerings; 5. Provide customer support to you; 6. Use the names, trademarks, service marks and logos associated with your company to promote the Service; 7. Send you offers and marketing materials from Per4mance and any of our partners or affiliates that we believe may be of interest to you, and 8. any other use that we, or a third-party App or Third-Party Provider, describes at the point where we collect data or information with your consent. 

Aggregated & Statistical Service Data Rights. Notwithstanding any other provision of this Agreement, Per4mance shall own all right, title and interest to any anonymized, aggregated and statistical data created, generated and/or derived from the Service Data and use of the Service. If Per4mance does not automatically own any anonymized aggregated and statistical data upon its creation, you hereby assign all right, title and interest, including intellectual property rights, in and to such aggregated and statistical data to Per4mance. 

You hereby grant to Unsionworx inc  a non-exclusive, irrevocable, perpetual, unlimited, worldwide license to use and permit others to use, at no cost, your name, photograph, video and voice (from any recordings you provide or upload, or recordings made by us that include you), statements, likeness, and personal characteristics (“Materials”) in connection with Per4mance’s business purposes, including but not limited to, advertising and commercial exploitation, in any format now known or hereafter developed at Per4mance’s sole discretion.  Such uses of the Materials may include, but are not limited to: use on Our Website, use on social media, use of Materials within advertising, promotional, and educational communications, use for training, and any other public use in furtherance of Per4mance’s business purposes.

Franchises

If you are a franchisee, and you subscribe to Per4mance, through an offer or or in conjunction with your franchisor, you authorize Per4mance to provide access to your Per4mance account, and all information therein, to your franchisor. You also authorize us to act on, and follow instructions from your franchisor with regard to your account.

COMMUNICATING WITH YOU/TPCA CONSENT; WITHDRAWING CONSENT; HELP

You authorize Per4mance, inclusive of its agents, affiliates and independent contractors, to contact you at the email address(es) and telephone number(s) that you have provided to Per4mance for advertisement, telemarketing, solicitation or other purposes, using an automated telephone dialing system or a pre-recorded or artificially-generated voice to deliver a message, or texting you, even if you have previously requested to be placed on our Do-Not-Call list, or your phone number appears on a state or federal Do-Not-Call list, or you have previously opted-out from receiving marketing emails from us. You can withdraw your consent to receive text messages at any time by replying with a text saying “STOP”. After you send a message “STOP” to us, we may send you a text message to confirm that you have been unsubscribed. After this, you will no longer receive text messages from us, unless you thereafter provide consent. If you are experiencing issues with the text messaging program you can reply with the keyword “HELP” for more assistance, or you can get help directly at hello@per4mance.io.  Neither the carriers, nor Per4mance are liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us, and to us from you.  Message frequency may vary. If you have any questions about your text or data plan, it is best to contact your wireless provider. If you have any questions regarding privacy, please read our privacy policy. Consent to receive marketing messages is not a condition to using our services, and if you choose not to consent, you may opt out by texting STOP to (405) 442-4149. You also agree that all personal information you provide to register with the Service is governed by our Privacy Policy, and you consent to all actions Per4mance takes with respect to your personal information consistent with its Privacy Policy. Where it is permitted by law, Per4mance may rely on implied consent. 

You also represent and warrant that you have obtained all necessary consents for any communications to your employees that are facilitated by or delivered via our Service. 

SUBSCRIPTION FEE FOR USE OF PER4MANCE

Subscription fee

Per4mance has various levels of service that are billed on a subscription basis for the term as specified when you subscribed. When you sign up for a subscription-billing based account, you agree to pay for, and to allow us to bill your credit card (or other payment method provided by you) for, all due charges, including all taxes and other applicable charges, in advance, at regular intervals, in accordance with the term of the Services to which you subscribed. The subscription period can be month-to-month, annual, or another duration described more fully on https://www.unisonworx.com/pricing/. You understand and agree that we may elect to modify your billing frequency at any time, without notice, including, for example, billing a monthly subscription on a weekly basis. ALL SUBSCRIPTIONS AUTOMATICALLY RENEW, IF NOT TERMINATED PRIOR TO SUCH AUTO-RENEWAL FOR A PERIOD EQUAL TO THE SUBSCRIPTION PERIOD. For renewals, Per4mance will automatically charge your payment method in the amount of the then-current fee for your type of account, plus applicable taxes. You hereby authorize us to re-bill for any failed billing or past-due amounts, including charging any alternate forms of payment that you have provided. Subscription fees will not be prorated or refunded, except as expressly set forth in this Agreement. We will bill you a full period’s subscription fee and you are responsible for payment of such fee unless the cancellation is within our Money-back guarantee window (see below). We reserve the right to revise pricing, for any or all of our offerings, at any time, and such revised pricing shall become effective upon our provision of  notice or as otherwise provided in such notice.  Any fees not paid when due may incur late payment fee equal to the lesser of 1.5% per month or the maximum amount allowed by law. 

Money-back guarantee

In select agreements, when specifically communicated to you, we offer a money-back guarantee for the first 60 days. We will refund you all of the subscription charges if you cancel within this time period. You will not receive a refund for items not included in the baseline monthly subscription fee (including activation fees, integrations, etc.). This money-back guarantee does not apply to re-enrollments, renewals after your first subscription or upgrades. To cancel your service and request a refund, please email us at hello@per4mance.io. 

Taxes – Sales & Use

To protect our customers and comply with all local laws, we will collect and remit sales tax where required. Not all states enforce sales tax on products and services like Per4mance, so you may not be affected.

ACCEPTABLE USE OF OUR SERVICE

Certain uses of our Service are inconsistent with our mission to improve the experience of our Per4mers. The following activities are prohibited:

Child exploitation: You may not post or upload Materials that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.

Harassment, bullying, defamation and threats: You may not post or upload Materials that harass, bully, defame or threaten any person.

Hateful content: You may not use the Service to promote or condone hate or violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition, veteran status or other forms of discrimination. You may not use the Service to promote or support organizations, platforms or people that: (i) promote or condone such hate; or (ii) threaten or condone violence to further a cause.

Illegal activities: You may not post or upload Materials that violate any applicable laws.

Privacy or Intellectual property: You may not post or upload Materials that infringe on the privacy or intellectual property rights of others.

Obscene or offensive content. You may not post or upload any Materials that we find in our sole discretion to be obscene, indecent or offensive in any way.

Malicious and deceptive practices: You may not use the Service to transmit malware or host phishing pages. You may not perform activities or upload or distribute Materials that harm or disrupt the operation of the Service or other infrastructure of Per4mance or others, including any of our third-party providers. You may not use the Service for deceptive practices or activities.

Personally identifiable or confidential information. You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.

Self-harm: You may not offer goods or services, or post or upload Materials that promote self-harm.

Spam: You may not use the Services to transmit unsolicited commercial electronic messages.

Terrorist organizations: You may not offer goods or services, or post or upload Materials that imply or promote support or funding of, or membership in, a terrorist organization.

Service Bureau: You may not, directly or indirectly, use any of our Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, other than as specifically authorized herein;

We may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Service if you engage in activities that violate this Agreement.

PER4MANCE PRODUCTS AND SERVICES

Per4mance offers all of its products, services and content on an “as-is” basis.  This includes any products, services or content including but not limited to those relating to classifications, payroll csv, and performance pay. We may change terms, including pricing, for any products or services, and discontinue any products or services, including Third-Party Services, upon prior notice to you. 

Classifications

If you use our Classifications feature, you understand and acknowledge that percentages, rate and/or retail rate generated from Classifications do not guarantee any particular outcome.  Many factors are involved in the profitability of a business, and the Classifications service is offered merely as a tool to assist you with evaluating your pricing of jobs and the performance pay structure. 

Payroll CSV

We may offer or provide access to the payroll csv as part of the Services (“Payroll CSV”). This payroll csv is for information purposes only, and do not constitute legal, tax, accounting or business advice. While such Payroll CSV may assist you in complying with applicable laws and regulations, it is solely your responsibility to ensure that your business complies with all applicable laws and regulations. Per4mance makes no representation about such Payroll CSV. You should consult with appropriate professionals before using any such Payroll CSV.

Beta Testing

You may from time to time be invited to participate in the alpha or beta testing of a new proposed product or service (“Beta Product”), which may be free, or for which there may be fees.  Unless you enter into a separate beta agreement with regard to any such Beta Product, you acknowledge and agree that: (a) the Beta Product is not an official product and has not been commercially released for sale by Per4mance; (b) the Beta Product is provided “as is”, and may not operate properly or be fully functional; (c) the Beta Product may contain errors, design flaws or other problems; (d) use of the Beta Product may result in unexpected results, loss of data or communications, or other unpredictable damage or loss; and (e) Per4mance has the right to abandon development of the Beta Product at any time and without any obligation or liability to you. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Beta Product. 

RELEASE

IN EXCHANGE FOR THE SERVICE PROVIDED BY US AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, USER EXPRESSLY AGREES TO RELEASE Per4mance, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, PARTNERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE, EXCEPT THAT THIS RELEASE DOES NOT APPLY TO CLAIMS BY YOU DIRECTLY ARISING OUT OF Per4mance’S MATERIAL BREACH OF THIS AGREEMENT, OR TO THE EXTENT THE FOREGOING RELEASE IS PROHIBITED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

NO REPRESENTATIONS OR WARRANTIES

WE MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE CONTENT ON OR SERVICES OF THIS SERVICE FOR ANY PURPOSE. WE DO NOT PROMISE THAT THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT IT WILL PROVIDE SPECIFIC RESULTS FROM USE OF THE SERVICE OR ANY CONTENT, SEARCH OR LINK ON IT. WE MAKE NO REPRESENTATION THAT YOUR WEBSITE WILL SATISFY ANY REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT OR OF ANY OTHER LAW, REGULATION OR ORDINANCE GOVERNING ACCESSIBILITY OF WEBSITES OR PLACES OF PUBLIC ACCOMMODATION OR OF ANY PRODUCTS OR SERVICES. THE SERVICE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. WE SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THIS SERVICE, DOWNTIME OF THE SERVICE, FOR YOUR ACTION OR INACTION IN CONNECTION WITH THIS SERVICE OR FOR ANY DAMAGE TO YOUR COMPUTER OR DATA OR ANY OTHER DAMAGE YOU MAY INCUR IN CONNECTION WITH THIS SERVICE. WE SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO GUARANTEES OF ANY SPECIFIC RESULT FROM USE OF THIS SERVICE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK.WE MAY FROM TIME TO TIME RECOMMEND, PROVIDE YOU WITH ACCESS TO, OR ENABLE THIRD-PARTY SOFTWARE APPLICATIONS, PRODUCTS, SERVICES, CONTENT OR WEBSITE LINKS INCLUDING THIRD-PARTY SERVICES (“ADDITIONAL SERVICES”) FOR YOUR CONSIDERATION OR USE. SUCH ADDITIONAL SERVICES ARE FOR YOUR CONVENIENCE ONLY AND WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER REGARDING SUCH ADDITIONAL SERVICES.

NO ADVICE

WE MAY PROVIDE YOU WITH ACCESS TO CERTAIN CONTENT, MATERIALS, INFORMATION, COACHING, AND PARTNER AND THIRD-PARTY SERVICES, REGARDING OR RELATING TO YOUR BUSINESS, TAXES, ACCOUNTING, PAYROLL, HUMAN RESOURCES COMPLIANCE, RETIREMENT PLAN SERVICES, BUSINESS AND OTHER INSURANCE SERVICES OR LEGAL INFORMATION, BUT YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE, NOR ANY OF OUR PARTNERS OR THIRD-PARTY SERVICE PROVIDERS ARE PROVIDING ANY TAX, LEGAL, ACCOUNTING, BUSINESS OR OTHER ADVICE TO YOU, AND YOU AGREE AND ACKNOWLEDGE THAT YOU ARE NOT ENTITLED TO RELY UPON ANY SUCH INFORMATION YOU RECEIVE FROM US OR OUR PARTNERS OR THIRD-PARTY SERVICE PROVIDERS, WHETHER VIA OUR WEBSITE, THE SERVICE OR ANY COMMUNICATIONS WITH US, OR ANY SOCIAL MEDIA OR OTHER INTERNET POSTS. YOU AGREE THAT YOU WILL CONSULT APPLICABLE OUTSIDE PROFESSIONALS WITH REGARD TO ANY TAX, ACCOUNTING, LEGAL OR BUSINESS ADVICE. 

LIMITATION OF LIABILITY

IN NO EVENT SHALL WE, OUR OFFICERS, DIRECTORS, AFFILIATES, PARTNERS, PARENT COMPANIES, EMPLOYEES AND/OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO (1) THIS AGREEMENT, OR THE USE OF, CONTENT IN, DELAY OR INABILITY TO USE, OR OTHERWISE ARISING IN CONNECTION WITH THIS SERVICE, (2) THE CONDUCT OF A USER, PER4MERS OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. WE ARE NOT LIABLE FOR ANY LOST DATA RESULTING FROM THE OPERATION OF THE SERVICE OR THE ENFORCEMENT OF THE TERMS. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD-PARTY PROVIDERS, THIRD-PARTY USERS, EMPLOYEE AND/OR SUBCONTRACTOR USERS, ADVERTISERS AND/OR SPONSORS ON THE SERVICE, IN CONNECTION WITH THE SERVICE OR OTHERWISE RELATED TO YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE. IN NO EVENT WILL Per4mance’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EVEN IF FORESEEABLE, EXCEED THE SUM OF ALL FEES PAID BY YOU TO Per4mance IN THE PREVIOUS SIX (6) MONTHS. TO THE EXTENT YOUR STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

SECURITY

We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will not be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide such information at your own risk, and that we have no liability to you or any third parties due to any unauthorized access to your Per4mance account.

Blocking of IP Addresses and UDIDs

In order to protect the integrity of the Service, we reserve the right, at any time, in our sole discretion, to block Users from certain IP addresses and UDIDs from accessing the Service.

TERMINATION OF ACCOUNT

This Agreement will remain in full force and effect while you use the Service and if applicable, after termination of such use.  Some provisions of this Agreement survive termination. Unless otherwise explicitly agreed to, you may terminate your account at any time, for any reason. To cancel an account, please send an email to support@per4mance.io. If you terminate your account, your account will be disabled within 14 days, however, you shall not receive any refund of any fees, including but not limited to subscription fees, unless explicitly stated otherwise herein. We may terminate your account or this Agreement at any time, with or without cause, by sending notice to you at the email address you provide in your account registration, or such other email address as you may later provide to us. All decisions regarding the termination of accounts shall be made in our sole discretion. We are not required to provide you notice prior to terminating your account. We are not required, and may be prohibited, from disclosing a reason for the termination of your account. The provisions of these Terms of Service shall survive and continue to apply after our relationship expires or has been terminated for any reason, except where otherwise required by the context. If you are due a refund for canceling your paid account, a refund will generally be issued to you within 14 days of request to cancel. Upon termination of your account, we may retain your information, including Service Data, but we have no obligation to do so. 

JURISDICTION AND CHOICE OF LAW

This Agreement is governed by and construed in accordance with the laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule. If there is any legal suit, action, proceeding or other dispute arising out of this Agreement or the use of the Service, by using the Service you expressly agree that any such dispute shall be governed by the laws of the State of Oklahoma, without regard to its conflict of law provisions. You further agree that any dispute that is not required or eligible to be submitted to arbitration, as described below, shall be resolved in the state and federal courts located in Oklahoma City, Oklahoma, and you agree to sole and exclusive jurisdiction in Oklahoma. The Service is controlled and operated by Per4mance from its offices within the United States and is intended only for use by users in the United States. The Service is not intended to subject Per4mance to any non-U.S. jurisdiction or law. Per4mance makes no representation that the information or materials on or linked through the Service is appropriate or available for use in other locations. If a User chooses to access the Service from other locations, it does so on its own initiative and at its own risk and is responsible for compliance with all applicable laws, rules and regulations in its respective location in doing so.

DISPUTE RESOLUTION; MANDATORY ARBITRATION

Please read the following arbitration agreement (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Per4mance and limits the manner in which you can seek relief from us.

a) Applicability of Arbitration Agreement.  You agree that any dispute or claim relating in any way to your access to or use of our Services, Our Website, our platform, and to any products sold or accessed via the Service or Our Website, or to any aspect of your relationship with Per4mance, including any claim regarding the applicability, interpretation, scope, or validity of this Arbitration Agreement, will be resolved by individual (not class or class-wide), confidential, binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify; and (ii) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before or after the effective date of this Agreement or any prior version of this Agreement. b) Pre-Arbitration Dispute Resolution.  Per4mance prefers to resolve any disputes amicably and efficiently, and we believe most customer concerns can be resolved quickly by emailing customer support at hello@per4mance.io. If we are unable to resolve the dispute via our customer support, prior to commencing arbitration, a party must first send to the other, by certified mail, a written notice which must (i) describe in detail the nature and basis of the claim or dispute and (ii) set forth what specific relief is being sought (“Notice”). If sent to Per4mance, the Notice should be sent to Per4mance,4334 NW Expressway, Suite 254, Oklahoma City, OK 73116 (the “Per4mance Address”) with a copy to hello@per4mance.io. If we and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. c) Arbitration Rules and Forum.  The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Oklahoma City, CO or any other location that is mutually agreed upon by you and Per4mance. A single arbitrator will be mutually selected by Per4mance and you and shall be (i) a practicing attorney licensed to practice law in Oklahoma or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in online SaaS business-to-business providers (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Per4mance and you cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon you and Per4mance. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Per4mance may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of Oklahoma City, Oklahoma, for any monetary amounts that you owe to Per4mance (each, an “Action”). You hereby waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Per4mance in such courts. You and Per4mance agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND Per4mance ARE EACH WAIVING YOUR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT. d) Authority of Arbitrator. The arbitrator shall award to the prevailing party, if any, costs and attorney’s fees reasonably incurred by the prevailing party in connection with the arbitration. If a party prevails on some but not all of the claims and counterclaims, that arbitrator shall award the prevailing party an appropriate percentage of the costs and attorney’s fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. e) Waiver of Jury Trial YOU AND PER4MANCE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Per4mance are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in subsections (a) and (c) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. f) Waiver of Class or Other Non-Individualized Relief.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the state or federal courts located in Oklahoma City, Oklahoma. All other claims shall be arbitrated. The parties further agree that if for any reason a claim does not proceed in arbitration, the foregoing class action waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple claimants against Per4mance in a single proceeding, except that the foregoing class action waiver shall not prevent you or Per4mance from participating in a classwide, collective, and/or representative settlement of claims. g) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the Per4mance Address in subsection (b) above, within 30 days after first becoming subject to this Arbitration Agreement and by email to Per4mance at legal@housecallpro.com. Your notice must include your name and address, your Per4mance username (if any), the email address you used to set up your Per4mance account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. h) Severability.  Except as provided in subsection (a), if any part or parts of this Arbitration Agreement (other than subsection (f) above titled “Waiver of Class or Other Non-Individualized Relief”) are found under the law to be invalid or unenforceable, the parties agree to replace such part or parts with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable part or parts, and this Arbitration Agreement will be enforceable as so modified. If any of the provisions of subsection (f) above titled “Waiver of Class or Other Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply. i) Survival of Agreement.  This Arbitration Agreement will survive the termination of your relationship with Per4mance. j) Modification.  Notwithstanding any provision in this Agreement to the contrary, we agree that if Per4mance makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Per4mance at the Per4mance Address. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service). k) Confidentiality.  All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties, subject to any legally required disclosures.

INDEMNIFICATION

You agree to indemnify, defend and hold harmless Per4mance in, its parents, subsidiaries, affiliates, officers, agents, partners and employees, from and against any loss, liability, claim, demand or suit, including reasonable attorney’s fees, resulting from or arising out of (a) any of your acts or omissions, (b) any violation or breach by you of this Agreement,  (c) claims from your employees or customers, or (d) any claim that your Domain Name, your Pro Website, or any of the Materials, or your use of the Service or any Third-Party Services, violates any law or regulation or any right of any third party, including any right of privacy, or infringes upon any intellectual property rights of any third party.

NO THIRD-PARTY BENEFICIARIES

Except as otherwise set forth expressly herein, nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than Per4mance and the Per4mers, any benefit, right or remedy.

RELATIONSHIP OF THE PARTIES

Per4mance and Per4mers are separate and independent entities, and the employee of one of those entities is not an employee of the other entity. We are not an agent of the Per4mers and vice versa. In no event will Per4mance be considered a general contractor, construction manager, project manager, joint employer, joint venturer, or partner of Per4mers or any of its affiliates or their respective personnel.

ENTIRE AGREEMENT

These Terms of Service constitute the entire agreement between you and Per4mance and supersede all oral and written negotiations, communications or representations of the parties, whether verbal or in writing, with respect to the subject matter hereof, except as may provided in a written agreement signed by you and an authorized officer of Per4mance. These Terms of Service may not be modified or amended other than by an agreement signed by both parties. No employee, agent, or other representative of Per4mance has any authority to bind Per4mance with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Terms of Service.

MISCELLANEOUS

If any provision of this Agreement is found to be unlawful or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the enforceability of any other provisions. The failure by Per4mance. to enforce any right or provision of this Agreement will not prevent Per4mance from enforcing such right or provision in the future. No delay, failure or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by an acts of war; terrorism, hurricanes, earthquakes and other acts of God or of nature, fire or flood; strike or labor unrest; degradation of telecommunications service; degradation of computer services not under the direct control of such party; or other causes beyond the performing party’s reasonable control. Per4mance may assign its rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, any other business combination or restructuring, or by operation of law. Users may not assign rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without Per4mance’s prior written consent. Per4mance may send notices pursuant to this Agreement to User’s email and phone number contact points provided by User, and such notices will be deemed received at the time they are sent. It is the User’s obligation to keep User’s contact information up to date. Users may send notice pursuant to this Agreement to the email address below.

Any and all dollar amounts in this Agreement refer to U.S. dollars. 

Contact Information

If you have questions or comments about the Service or this Agreement, please contact us at hello@per4mance.io.