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PROCUREMENT EXCELLENCE NETWORK TERMS OF SERVICE

Welcome to the Procurement Excellence Network (“PEN”), an online platform offered by President and Fellows of Harvard College, acting through the Government Performance Lab at the Kennedy School of Government (“GPL”). By creating a PEN user account, or otherwise accessing PEN or any of its contents, such as the resource library, member directory, or conversation features, you accept and agree to be bound by the following Terms of Service:
  1. Procurement Excellence Network. PEN is an online platform offered by GPL to share and facilitate the exchange of procurement-related research with certain government practitioners who assist with procurements as part of their professional roles. In pursuit of this mission, PEN serves as a hub on which users can post their comments to questions posed by GPL and other users and respond to other PEN-hosted features, including polls. Notwithstanding the foregoing, GPL reserves the right to (a) make material modifications to PEN, including but not limited to changes to existing features, functionalities, design elements, and user interfaces; and (b) introduce additional features and functionalities.
  2. Community Values. PEN aspires to create a space for high quality learning, engagement, and community around procurement and contracting topics that impact governments. Achieving this mission requires an environment of trust, mutual respect, and a commitment to truth. You agree to the following when accessing PEN:
    • You will demonstrate respect, honesty, and integrity when interacting with other members;
    • You will not directly mention colleagues, vendors, or agencies by name without their explicit permission;
    • You will not provide any false, misleading, or inaccurate information; and
    • You will not disseminate or transmit “spam” or use PEN for advertisements, or unsolicited commercial communications ((a)-(d) collectively the “Community Values”).
  3. User Account Registration Information. The general public may access PEN, except for content hosted in the “Member Portal,” which is only accessible to employees or certain elected officials of government entities, which includes state, county, city, town, parish, and village governments, along with other local and regional forms of government (including but not limited to transit agencies, port authorities, parks districts, and regional governing authorities), with a verified user account. You may choose not to register for a user account, in which case you will have access to the public sections of PEN but not the Member Portal. You agree to provide information to GPL that is accurate, current and complete. You further agree that PEN’s Privacy Statement governs the use of your personal information.
  4. User-Generated Content. GPL reserves the right to modify or remove any and all information you volunteer when using PEN, such as content you post on PEN to share with GPL and other users and your answers to poll questions (the “User-Generated Content”) at its discretion, without notice, and for any reason. By submitting UserGenerated Content for publication on PEN, you grant GPL a perpetual, irrevocable, worldwide, transferable, royalty-free, and non-exclusive license to reproduce, publicly perform, publicly display, and distribute said content on PEN and for other GPL and 2 Kennedy School of Government purposes. You understand that GPL assumes no responsibility for monitoring, modifying, or removing, or failing to monitor, modify, or remove, any User-Generated Content. You further understand and agree that the views and opinions expressed by other users on PEN are theirs alone and should not be ascribed to GPL. Content created by third parties is the sole responsibility of the third parties and its accuracy and completeness are not endorsed or guaranteed by GPL. GPL will have no liability in the event any User-Generated Content you post violates third party rights or is used or disclosed by others in violation of these Terms of Service. You understand that User-Generated content that you post may not remain confidential, so you should not post anything that you do not want made public, including anything that may embarrass or expose you or your employer to a risk of litigation.
  5. Member-Portal Content. Without first obtaining GPL’s permission, you may not otherwise copy, reproduce, retransmit, distribute, publish, commercially exploit or otherwise make available or use any information available in the Member Portal of PEN (“Member-Portal Content”).You agree to keep all Member-Portal Content confidential and not to share Member-Portal Content with any third party.
  6. Termination. If you violate these Terms of Service or for any other reason, without limiting any other rights it might have, GPL reserves the right to terminate your registration and otherwise deny you PEN access at GPL’s sole discretion.
  7. Appropriate Use/ Conduct.
    1. You agree that you will:
      1. Use PEN in compliance with the Community Values, these Terms of Service, and all applicable local, state, national and international laws, rules and regulations, including privacy and copyright laws, any laws regarding the transmission of technical data exported from your country of residence, and all United States export control laws;
      2. Only post User-Generated Content that is pleasant, constructive, and professional; and
    2. You agree that you will not:
      1. Interpret any PEN content, including but not limited to User-Generated Content, as advice to you or to any other users. You are responsible for your own decision-making and your own use of PEN;
      2. Impersonate any other person, including by establishing a user account for PEN under another person’s name or using another person’s personal information;
      3. Post material that infringes a copyright, trademark or patent right, trade secret or other legal right of any person, including GPL;
      4. Request referrals for vendors;
      5. Obtain or attempt to obtain any materials or information on or via PEN, if such materials or information are not intentionally made available to you through PEN;
      6. Make comments that are abusive, vulgar, threatening or malicious, knowingly false, or unlawful; use foul language; or engage in personal attacks; or
      7. Attempt to gain unauthorized access to PEN, other PEN user accounts, or the computer equipment or networks connected to PEN via hacking, password mining, or any other means.
    3. You also agree that you will not:
      1. Use any high-volume, automated, or electronic means to access PEN (including without limitation robots, spiders, or scripts);
      2. Frame PEN’s website, place pop-up windows over its pages, or otherwise affect the display of its pages;
      3. Force headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through PEN;
      4. Disseminate or transmit viruses, Trojan horses, worms, defects, date bombs, time bombs, malware, spyware, or other items of a destructive nature or any other malicious code or program;
      5. Reverse-engineer PEN; or
      6. Use PEN in any manner intended to damage, disable, overburden, interfere with, or disrupt any part of PEN, the computer equipment or network(s) connected to PEN, or any other user’s access to or use of PEN.
  8. Privacy Statement. You acknowledge that you have read and understand the Privacy Statement.
  9. DISCLAIMER OF WARRANTY. YOU AGREE THAT THE USE OF PEN SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PEN AND ANY INFORMATION, PRODUCTS, OR SERVICES THEREIN OR OBTAINED THEREBY, INCLUDING USER-GENERATED CONTENT, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND (EXPRESS, IMPLIED, OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT PEN WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT PEN IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT: (A) THAT PEN WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ACHIEVE THE INTENDED PURPOSES; (B) THAT PEN WILL NOT EXPERIENCE OUTAGES OR OTHERWISE WILL BE UNINTERRUPTED, TIMELY, OR SECURE; (C) THAT THE INFORMATION OR SERVICE OBTAINED THROUGH OR FROM PEN WILL BE 4 ACCURATE, COMPLETE, CURRENT, ERROR-FREE, OR RELIABLE; OR (D) THAT ANY DEFECTS IN OR ON PEN WILL BE CORRECTED. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING YOUR ABILITY TO TRANSMIT AND RECEIVE INFORMATION FROM OR THROUGH PEN, AND YOU AGREE AND ACKNOWLEDGE THAT YOUR ABILITY TO ACCESS PEN MAY BE IMPAIRED.
  10. LIMITATION OF LIABILITY. EXCEPT INSOFAR AS THE FOLLOWING LIMITATION MAY BE PROHIBITED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES OF ANY KIND, INCLUDING DIRECT, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR EARNING POWER, LOSS OF DATA, LOSSES DUE TO ERRORS OR INTERRUPTION IN AVAILABILITY OF THE SITE, UNAVAILABILITY OF ANY SERVICE, SERVER, OR COMMUNICATIONS FACILITY, OR DAMAGES DUE TO ACTS OR OMISSIONS OF OTHERS USING PEN) ARISING OUT OF OR RELATING TO PEN, INCLUDING WITHOUT LIMITATION YOUR AND OTHERS’ USE OF OR INABILITY TO USE PEN, OR YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH PEN, INCLUDING USER-GENERATED CONTENT, WHETHER BASED IN CONTRACT, TORT, STATUTORY, OR OTHER LAW.

    You acknowledge and agree that the warranty disclaimers and the limitations of liability set forth in these Terms of Service reflect a reasonable and fair allocation of risk between you and us, and that these limitations are essential to our willingness to make pen available to you. Each of these disclaimers and limitations is intended to be separately enforceable, regardless of whether any other remedy fails of its essential purpose.

    You acknowledge that, for purposes of the foregoing disclaimers and limitations in Section 9 and in this Section, as well as the indemnity and third-party provisions in Sections 11 and 13 below, the terms “we,” “our,” and “us” include the corporate body President and Fellows of Harvard College, also known as Harvard University, its various schools, the members of its governing boards, and its officers, faculty members, employees, fellows, and to the extent they are working on PEN or on matters related thereto, its students, contractors, and representatives (together, the “Covered Harvard Persons”).

    Certain jurisdictions do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If the laws or regulations of these jurisdictions apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
  11. Indemnification. Except to the extent legally impermissible, you agree to indemnify us and hold us harmless from any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, relating to or arising out of
    1. (a) your use or attempted use of PEN in violation of these Terms of Service; or
    2. (b) your violation of any law or rights of any third party in connection with your use of PEN.
  12. Compliance with Antitrust Laws. Federal and state antitrust laws prohibit, among other conduct, agreements in restraint of trade or commerce. You agree that you will abide by all applicable antitrust laws and that you will not use PEN to reach, or attempt to reach, any contract, combination, conspiracy, or other agreement in restraint of trade or commerce. Furthermore, the exchanging of competitively-sensitive information between market participants (including representatives of state and local governments) may itself violate the antitrust laws. You agree that you will not post or otherwise exchange competitively-sensitive information on PEN (including User-Generated Content), including without limitation non-public information about your procurement practices (such as price, volume, or any other commercial terms), your dealings with particular vendors and/or providers, and your terms of employment or those of your colleagues. You agree that you are solely responsible to ensure that your use of PEN complies with all applicable laws, including the antitrust laws, and that, consistent with Section 10 hereof (Limitation of Liability), GPL and PEN will not be liable to you or to any third party for any loss or damage of any kind arising from your use of PEN.
  13. Links and Third-Party Apps. PEN may include hyperlinks to websites or applications maintained or controlled by others. We are not responsible for and do not approve or endorse the contents or use of any of the information, products, or services that may be offered by these third-party websites or applications. If you decide to access linked third party websites or applications, you do so at your own risk. You expressly relieve GPL and the Covered Harvard Persons from any liability arising from your use of any third-party website or application.
  14. Choice of Law. You agree that the Terms of Service and any claim or dispute arising out of or relating to the Terms of Service, PEN, or your use of PEN, including your use of any information provided therein, will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of laws principles. You agree that all such claims and disputes will be heard and resolved exclusively in the federal or state courts located in and serving Middlesex or Suffolk County, Massachusetts, U.S.A. You consent to the personal jurisdiction of those courts over you for this purpose, and you waive and agree not to assert any objection to such proceedings in those courts (including any defense or objection of lack of proper jurisdiction or inconvenience of forum).
  15. Whole Agreement/ Amendments. These Terms of Service constitute the entire agreement between you and GPL with respect to your use of PEN. GPL reserves the right to amend these Terms of Service at any time. PEN will post notice of changes to the terms on this webpage, and by accessing PEN after modifications to these Terms of Service have been posted, you agree to be bound by all the modified terms. Accordingly, you should periodically revisit this page to review the then-current Terms of Service.
Dated: 10/25/2022
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