Welcome to Perscale.com, the website of Perscale, Inc., hereinafter referred to as “Perscale,” “we,” or “us.” This page explains the terms by which you may use our online services, website, online demos, cloud computing platform, API and any other software or services provided on or in connection with the services (collectively the “Perscale Services”). By accessing or using the Perscale Services, you signify that you have read, understood, and agree to be bound by these Terms of Service (the “Terms”) and to the collection and use of your information as set forth in the Perscale Privacy Policy, whether or not you are a registered user of the Perscale Services. This Agreement applies to all visitors, users, and others who access the Perscale Services.

1. Use of the Perscale Services
   1. You may not use the Perscale Services if you are a person barred from receiving the Perscale Services under the laws of the United States or other countries, including the country in which you are a resident or from which you use the Perscale Services. You affirm that you are over the age of 13, as the Perscale Services are not intended for children under 13.
   2. You agree that your purchases of Perscale Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Perscale or any of its affiliates regarding future functionality or features.
2. Your Account and Use of the Perscale Services
   1. You must provide accurate and complete registration information any time you register to use the Perscale Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Perscale immediately.
   2. Your use of the Perscale Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
   3. You agree not to (a) access (or attempt to access) the administrative interface of the Perscale Services by any means other than through the interface that is provided by Perscale in connection with the Perscale Services, unless you have been specifically allowed to do so in a separate agreement with Perscale, or (b) engage in any activity that interferes with or disrupts the Perscale Services (or the servers and networks which are connected to the Service).
   4. You may use the Perscale Services only to develop and run applications on the Perscale infrastructure. You may not access the Perscale Services for the purpose of bringing an intellectual property infringement claim against Perscale or for the purpose of creating a product or service competitive with the Perscale Services.
3. Service Policies and Privacy
   1. You agree to comply with the Perscale Acceptable Use Policy available at AUP (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.
   2. The Perscale Services shall be subject to the privacy policy for the Perscale Services available at privacy. You agree to the use of your data in accordance with Perscale privacy policies.
   3. You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Perscale.
4. Fees for Use of the Perscale Services
   1. Subject to the Terms, some Perscale Services such as online demos are provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services is available by request to [email protected] (or via a URL as Perscale may provide).
   2. For all purchased resources and services, we will either charge your credit card on a monthly basis or collect payment via other methods as agreed to in writing and described in a Perscale invoice provided to you. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys’ fees that Perscale incurs in collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Perscale’s measurements of your use of the Perscale Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Perscale and only in the form of credit for the Perscale Services. Nothing in these Terms obligates Perscale to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Perscale may be shared by Perscale with companies who work on Perscale’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Perscale and servicing your account. Perscale may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Perscale shall not be liable for any use or disclosure of such information by such third parties. Perscale reserves the right to discontinue the provision of the Perscale Services to you for any late payments.
   3. For all recurring purchases, Perscale may change its fees and payment policies for the Perscale Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. In addition, changes to the fees or payment policies may be posted on the website (or such other URL Perscale may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
   4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Perscale Services in a manner intended to avoid incurring fees.
5. Content on the Perscale Services and Take Down Obligations
   1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Perscale Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the application that you distribute and run using the Perscale Services and any source code written by you to be used with the Perscale Services (collectively, “Applications”).
   2. Perscale reserves the right (but shall have no obligation) to remove any or all Content from the Perscale Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Perscale. In the event that you elect not to comply with a request from Perscale to take down certain Content, Perscale reserves the right to directly take down such Content or to disable Applications.
   3. In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. Perscale reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
   4. You agree that you are solely responsible for (and that Perscale has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Perscale Services and for the consequences of your actions (including any loss or damage which Perscale may suffer) by doing so.
   5. You agree that Perscale has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6. Proprietary Rights
   1. You acknowledge and agree that Perscale (or Perscale’s licensors) own all legal right, title and interest in and to the Perscale Services, including any intellectual property rights which subsist in the Perscale Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
   2. Except as provided in Section 8, Perscale acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Perscale Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Perscale, you agree that you are responsible for protecting and enforcing those rights and that Perscale has no obligation to do so on your behalf.
7. License from Perscale and Restrictions
   1. Perscale gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Perscale as part of the Perscale Services as provided to you by Perscale. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Perscale Services as provided by Perscale, in the manner permitted by the Terms.
   2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Perscale Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Perscale, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Perscale Services or any applications running on the Perscale Services.
   3. Open source software licenses for components of the Perscale Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Perscale for the use of the components of the Perscale Services released under an open source license.
8. License from You
   1. Perscale claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Perscale Services you give Perscale a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Perscale to provide you with the Perscale Services. Furthermore, by distributing an Application through use of the Perscale Services, you give Perscale a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Perscale to provide you with the Perscale Services.
   2. You may choose to or we may invite you to submit comments or ideas about the Perscale Services, including without limitation about how to improve the Perscale Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Perscale under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
   3. You agree that Perscale, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Perscale Services.
9. Recommendations
   1. Perscale may, and you grant us permission to, make recommendations via the Perscale Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Perscale Services. We will never make recommendations directly to your End Users.
10. Modification and Termination of the Perscale Services
    1. Perscale is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Perscale Services which Perscale provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Perscale Services will be effective with respect to all versions of the Perscale Services; examples of changes to the form and nature of the Perscale Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
    2. You may terminate these Terms at any time by canceling your account on the Perscale Services. If you make this termination request in writing prior to the 7th day after the commencement of your service with Perscale, then you will receive a full refund of all payments made under this Agreement. If your termination request occurs after the 7th day, then you will not receive any refunds.
    3. You agree that Perscale, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Perscale Services may be without prior notice, and you agree that Perscale will not be liable to you or any third party for such termination.
    4. You are solely responsible for exporting your Content and Application(s) from the Perscale Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
    5. Upon any termination of the Perscale Services or your account these Terms will also terminate, but Sections 6.1, 11, 12, 13, 14, and 17 shall continue to be effective after these Terms are terminated.
11. EXCLUSION OF WARRANTIES
    1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT PERSCALE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
    2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE PERSCALE SERVICE IS AT YOUR SOLE RISK AND THAT THE Perscale SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
    3. PERSCALE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE Perscale SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERSCALE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE Perscale SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE Perscale SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE Perscale SERVICES WILL BE ACCURATE.
12. LIMITATION OF LIABILITY
    1. SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT PERSCALE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
    2. THE LIMITATIONS ON PERSCALE’S LIABILITY TO YOU IN PARAGRAPH 12.1 ABOVE SHALL APPLY WHETHER OR NOT PERSCALE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
13. Indemnification
    1. You agree to hold harmless and indemnify Perscale, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Perscale and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Perscale Services, (c) your violation of applicable laws, rules or regulations in connection with the Perscale Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Perscale will provide you with written notice of such claim, suit or action.
14. Copyright Policy and DMCA Notice
    1. Since we respect artist and content owner rights, it is Perscale’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
    2. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Perscale Service, please notify Perscale’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
       1. 1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
       2. 2. Identification of the copyrighted work that you claim has been infringed;
       3. 3. Identification of the material that is claimed to be infringing and where it is located on the Service;
       4. 4. Information reasonably sufficient to permit Perscale to contact you, such as your address, telephone number, and, e-mail address;
       5. 5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
       6. 6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
    3. The above information must be submitted to the following DMCA Agent:
       Attn: DMCA Notice
       Perscale, Inc.
       580 California St. Suite 1200
       San Francisco, CA 94104
       Tel: +1 (415) 236-3430
       Email: [email protected]
    4. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
    5. Please note that this procedure is exclusively for notifying Perscale and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Perscale’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
    6. In accordance with the DMCA and other applicable law, Perscale has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Perscale may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
15. Other Content
    1. The Perscale Services may include hyperlinks to other web sites or content or resources or email content. Perscale may have no control over any web sites or resources which are provided by companies or persons other than Perscale.
    2. You acknowledge and agree that Perscale is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
    3. You acknowledge and agree that Perscale is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
16. Changes to the Terms
    1. Perscale may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
    2. You understand and agree that if you use the Perscale Services after the date on which the Terms have changed, Perscale will treat your use as acceptance of the updated Terms.
17. General Legal Terms
    1. The Terms constitute the whole legal agreement between you and Perscale and govern your use of the Perscale Services (but excluding any services which Perscale may provide to you under a separate written agreement), and completely replace any prior agreements between you and Perscale in relation to the Perscale Services.
    2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
    3. If Perscale provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
    4. You agree that Perscale may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Perscale Services dashboard. By providing Perscale your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
    5. You agree that if Perscale does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Perscale has the benefit of under any applicable law), this will not be taken to be a formal waiver of Perscale’s rights and that those rights or remedies will still be available to Perscale.
    6. Perscale shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
    7. The Terms, and your relationship with Perscale under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Perscale agree to submit to the exclusive jurisdiction of the courts located within the City and County of San Francisco, California to resolve any legal matter arising from the Terms.
    8. Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Perscale Services upon written notice to the assigning party.

These Terms were last modified on April 8, 2022.