Welcome to www.preskale.com. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “PreSkale Services”).
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE PRESKALE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE PRESKALE SERVICES.
PreSkale may, in its sole discretion, elect to suspend or terminate access to, or use of the PreSkale Services to anyone who violates these Terms.If you register for a free trial of the PreSkale Services, the applicable provisions of these Terms will govern that free trial.
By accessing the website at http://www.preskale.com, you are agreeing to be bound by these terms of service, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this website are protected by applicable copyright and trademark law.
- Permission is granted to temporarily download one copy of the materials (information or software) on Preskale's website for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
- This license shall automatically terminate if you violate any of these restrictions and may be terminated by Preskale at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
- The materials on Preskale's website are provided on an 'as is' basis. Preskale makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights.
- Further, Preskale does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its website or otherwise relating to such materials or on any sites linked to this site.
In no event shall Preskale or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption) arising out of the use or inability to use the materials on Preskale's website, even if Preskale or a Preskale authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
2. AUTHORITY TO ENTER INTO THESE TERMS WITH PRESKALE
The use of the PreSkale Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
- the person has received the confirmation of the creation of the Account and necessary credentials from PreSkale in order to log in to his/her/its Account; or
- for those PreSkale Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.
You may not, without PreSkale’s prior written consent, access the PreSkale Services (i) for production purposes, (ii) if you are a competitor of PreSkale, (iii) to monitor the availability, performance or functionality of the PreSkale Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
3. MODIFICATIONS TO TERMS
PreSkale reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the PreSkale Services. Please check these Terms periodically for changes. Your continued use of the PreSkale Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the PreSkale Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and PreSkale will be governed by the Terms in effect at the time such dispute arose.
4. OUR RESPONSIBILITIES
4.1. Provision of PreSkale Services.
PreSkale will (a) make the PreSkale Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the PreSkale Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the PreSkale Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which PreSkale shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond PreSkale’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
4.2. Protection of Client Data.
PreSkale will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by PreSkale personnel except (a) to provide the PreSkale Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
5. USING THE PRESKALE SERVICES
5.1 Establishing an Account.
Certain features, functions, parts or elements of the PreSkale Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
- complete the sign-up form on the Web Site; and
- accept these Terms by clicking “Sign up” or other similar button
Each Client may have only one Account. If several persons need to use an Account on behalf of Client, Client must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.
If Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. PreSkale is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, PreSkale may, in its discretion, request additional information or proof of the person’s credentials. If PreSkale is not certain if a User has been granted Authorization, PreSkale may, in its sole discretion, prevent such User from accessing the PreSkale Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
The Client and any User associated with an Account must provide PreSkale with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
5.2 Logging Into an Account
PreSkale shall provide Client with a username and password (“Login Credentials”) to be used to log in to its Account unless the Client uses the single sign-on feature or another service to log in. These Login Credentials must not be used by multiple persons. If Client has designated several Users, each User will be provided with separate Login Credentials. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify PreSkale:
- of any disclosure, loss or unauthorized use of any Login Credentials
- of a User’s departure from the Client’s organization
- of a change in a User’s role in the Client’s organization
- of any termination of a User’s right for any reason
5.3 Termination of Account
Client may terminate these Terms at any time as provided in Section 17. PreSkale shall permanently delete the Account within six months of the effective date of the termination.
The use of an Account is subject to a Fee. Upon sign-up for an Account, the Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
5.5 Changing Plans
Any Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by PreSkale. In such an event, the Client’s credit card on file with PreSkale will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
Downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of Client Data.
5.6 Free Trial
A new Client may be entitled to a Free Trial, unless the Client has applied for the Account as a result of an ongoing marketing campaign organized by PreSkale in co-operation with its partners. The Client is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Plan and pay the first Fee. If the Client does not pay the first Fee within 2 weeks as of the expiry of the Free Trial, PreSkale has the right to permanently delete the Account, including all Client Data therein.
In addition to the current collection of Plans, PreSkale may offer special discounts and motivation schemes (for example finder’s fees, etc.).
The following provisions are applicable only if you purchase access to the PreSkale Services directly from PreSkale.
6.1 Payment Card Authorization
PreSkale may seek pre-authorization of Client’s payment card account prior to your purchase of PreSkale Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts described herein, and authorize PreSkale to charge all sums described in these Terms to such card account. You agree to provide PreSkale updated information regarding your payment card account upon PreSkale’s request and any time the information earlier provided is no longer valid.
6.2 Direct Debit Payments
In some markets PreSkale may, if Client elects, request that Client complete a direct debit mandate to enable direct debit payments. In such cases PreSkale shall comply with all applicable national rules and regulations related to direct debit payments.
6.3 Electronic Invoice
If PreSkale has not sought pre-authorization of your payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
6.4 Overage Charges
Upon delay with any payments, PreSkale may require the Client to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. The interest rate of penalty for late payment due shall be 1% per month; provided, however, if any interest paid to PreSkale is determined to be in excess of the then legal maximum rate, then that portion of each interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of amounts owing under Section 6.2. Upon calculation of the penalty for late payment, one year shall be deemed to contain 365 calendar days.
7. CLIENT DATA
7.1 Uploading Client Data to Platform
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through the PreSkale Services by PreSkale. By uploading Client Data to the Platform, Client authorizes PreSkale to process the Client Data. The Client is responsible for ensuring that:
- the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the terms of these Terms, the rights of PreSkale, other Clients or Users, persons or Organizations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
- the Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
7.2 No Guarantee of Accuracy.
PreSkale does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the PreSkale Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not PreSkale, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the PreSkale Services, as well as for any actions taken by PreSkale or other Clients or Users as a result of such Client Data.
7.3 Unlawful Client Data
PreSkale is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of PreSkale or if there is reason to believe that certain Client Data is unlawful, PreSkale has the right to:
- notify the Client of such unlawful Client Data;
- deny its publication on the Web Site or its insertion to the System
- demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law
- temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
If PreSkale is presented convincing evidence that the Client Data is not unlawful, PreSkale may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.
In addition, in the event PreSkale believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, PreSkale may (but has no obligation), to remove such Client Data at any time with or without notice.
Without limiting the generality of the preceding sentence, PreSkale complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice.
7.4 Compelled Disclosure
PreSkale may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, PreSkale will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If PreSkale is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which PreSkale is a party, and Client is not contesting the disclosure, Client will reimburse PreSkale for its reasonable cost of compiling and providing secure access to that confidential information.
8.1 Use of the PreSkale Services
Subject to these Terms, and the payment of the applicable service Fee, PreSkale grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the PreSkale Services to:
- collect, store and organize Client Data
- modify and delete Client Data
- customize the standard features of the PreSkale Services
- receive reasonable help and guidance and from PreSkale regarding the use of the PreSkale Services
8.2 Technical Support
PreSkale shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. PreSkale shall respond to enquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all
The contacts for all enquiries of support are:
- instant messaging
- built-in notification application on the Web Page, or
- e-mail: support@PreSkale.com
8.3 Modifications to Service
PreSkale reserves the right to modify the PreSkale Services or any part or element thereof from time to time without prior notice, including, without limitation:
- rebranding the PreSkale Services at its sole discretion
- ceasing providing or discontinuing the development any particular PreSkale Service or part or element of the Platform temporarily or permanently
- taking such action as is necessary to preserve PreSkale’s rights upon any use of the PreSkale Services that may be reasonably interpreted as violation of PreSkale’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity
As applicable, Client may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the PreSkale Services, will become effective thirty (30) days before the effective date of such modification.
If the Client does not accept the modification, the Client shall notify PreSkale before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Client’s continued use of the PreSkale Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. PreSkale shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the PreSkale Services, or any part or element thereof.
9. DATA PROCESSING CONTRACT
The Client hereby instructs PreSkale to process the data as described in these Terms.
9.1 Subject matter and nature of processing
PreSkale provides the Platform where the Client, as the data controller, can collect, store and organize the personal data of data subjects determined by the Client. The Platform has been designed to work as a partnership management tool but, to the extent not regulated by these Terms, the Client decides how they use the Platform.
PreSkale will process data on behalf of the Client until the termination of the PreSkale Services in accordance with these Terms. Upon termination, PreSkale will store the Client’s data for a period of six months, should the Client wish to reopen the Account to resume the use of the PreSkale Services or to export Client Data, unless instructed otherwise by the Client. PreSkale deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data.
9.3 Parties’ rights and obligations
The Client’s rights and obligations regarding Client Data are provided in sections 4 through 10 of these Terms. PreSkale ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. PreSkale undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.
10.1 Prohibited Activities
Client and its authorized Users may use the PreSkale Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
- use the PreSkale Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions
- copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the PreSkale Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that PreSkale is not permitted by that applicable law to exclude or limit the foregoing rights
- use the PreSkale Services or any part or element thereof unless it has agreed to these Terms
10.2 Certain Uses Require PreSkale Consent.
The Client or any User may not, without PreSkale’s prior express written consent (e-mail, fax, Skype, etc.)
- sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the PreSkale Services available in whole or in part to any third persons, unless such third person is another authorized User of the same Client
- use the PreSkale Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created
- use the PreSkale Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by PreSkale
12. INTELLECTUAL PROPERTY RIGHTS
12.1 PreSkale’s Intellectual Property Rights in the PreSkale Services
The PreSkale Services, PreSkale Materials, PreSkale trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by PreSkale and its third party vendors and hosting partners. PreSkale Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. PreSkale, its affiliates and licensors retains all right, title and interest in such PreSkale Services, PreSkale Materials, PreSkale trade names and trademarks, and any parts or elements. Your use of the PreSkale Services and PreSkale Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the PreSkale Materials is strictly prohibited unless you have received the express prior written permission from PreSkale or the otherwise applicable rights holder. PreSkale reserves all rights to the PreSkale Services, PreSkale Materials and PreSkale trade names and trademarks not expressly granted in the Terms.
12.2 Content Owned by PreSkale
Subject to these Terms and the payment of the applicable service Fee, PreSkale grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the PreSkale Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the PreSkale Services or as otherwise permitted by applicable law.
12.3 Client Data.
- PreSkale may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. PreSkale may not otherwise use or display Client Data without Client’s written consent. PreSkale respects your right to exclusive ownership of your Client Data. Unless specifically permitted by you, your use of the PreSkale Services does not grant PreSkale the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by you or stored in your Account for PreSkale’s commercial, marketing or any similar purpose. Client expressly grants PreSkale the right to use and analyze aggregate system activity data associated with use of the PreSkale Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the PreSkale Services operate, and to create new features and functionality in connection with the PreSkale Services in the sole discretion of PreSkale.
- Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the PreSkale Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize PreSkale to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the PreSkale Services and these Terms, and to grant the rights and license set forth in Section 11.3(a), and (ii) Client Data, PreSkale’s or any PreSkale Licensee’s use of such Client Data pursuant to these Terms, and PreSkale’s or any PreSkale Licensee’s exercise of the license rights set forth in Section 11.3(a), do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by PreSkale to any third party for the performance of any PreSkale Services Client has chosen to be performed by PreSkale or for the exercise of any rights granted in these Terms, unless Client and PreSkale otherwise agree.
If Client or a User provides PreSkales with any comments, bug reports, feedback, or modifications for the PreSkale Services (“Feedback”), PreSkale shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the PreSkale Services. Client or User (as applicable) hereby grants PreSkale a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. PreSkale shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if PreSkale deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
13. THIRD-PARTY SITES, PRODUCTS AND SERVICES
The PreSkale Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, PreSkale does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, PreSkale makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by PreSkale. By using any community marked code or libraries in your software development, you acknowledge and agree that PreSkale is not in any way responsible for the performance or damages caused by such community provided code or library.
14. DISCLAIMERS; NO WARRANTY
UNLESS OTHERWISE EXPRESSLY STATED BY PRESKALE, THE PRESKALE SERVICES, PRESKALE MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRESKALE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRESKALE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY PRESKALE, PRESKALE AND ITS AFFILIATES DO NOT WARRANT THAT THE PRESKALE SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRESKALE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRESKALE SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRESKALE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY PRESKALE, PRESKALE AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE PRESKALE SERVICES, PRESKALE MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless PreSkale and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the PreSkale Services, PreSkale Materials, representations made to PreSkale, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. PreSkale reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify PreSkale, and you agree to cooperate with such defense of these claims.
16. LIMITATION OF LIABILITY
16.1 No Liability
PreSkale shall not be liable to the Client or User for any consequences resulting from:
- any modifications in these Terms, calculation and rates of Fees, the PreSkale Services, PreSkale Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the PreSkale Services or PreSkale Material
- deletion of, corruption of, or failure to store any Client Data
- upgrading or downgrading the current Plan
- any disclosure, loss or unauthorized use of the login credentials of Client or any authorized User due to Client’s failure to keep them confidential
- the Client’s use of the Account or the PreSkale Services by means of browsers other than those accepted or supported by PreSkale
- the application of any remedies against the Client or authorized Users by PreSkale, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the PreSkale Services or any part or element thereof
- he differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the PreSkale Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet
- PreSkale’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards
In addition, PreSkale and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to:
- provide PreSkale with accurate information about the Client, Users or Account
- notify PreSkale of any reasons due to which a User does not have the right to use the Account on behalf of the Client
- provide any products or services which it has agreed to provide to such a person or Organization (whether such failure arises as a result of PreSkale’s negligence, breach if these Terms or otherwise)
- ensure the lawfulness of the Client Data
- obtain the necessary rights to use the Client Data; or
- abide by any of the restrictions described in these Terms
16.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PRESKALE AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE PRESKALE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
16.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW
17. TERMINATION OF THESE TERMS
17.1 For Convenience
These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:
- by the Client any time by clicking the cancellation link on the Web Site, when logged in to the Account
- by PreSkale upon decision to end provision of the PreSkale Services and close the Platform; or
- immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors
17.2 For Default.
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
- by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
- immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights] and 15 [Indemnification] of these Terms.
17.3 Effect of Termination
Upon termination of these Terms,
- PreSkale shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Client has specifically requested for an earlier deletion of the Account, PreSkale shall fulfill such request within 1 month of its receipt of such request.
- Client must:
- stop using and prevent the further usage of the PreSkale Services, including, without limitation, the Platform;
- pay any amounts owed to PreSkale under these Terms; and
- discharge any liability incurred by the Client before under these Terms prior to their termination; and
- The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.
If PreSkale terminates these Terms as a result of an uncured breach by a Client or User, PreSkale is entitled to use the same or similar remedies against any other persons who use the PreSkale Services in conflict with these Terms. Notwithstanding the foregoing, PreSkale may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the PreSkale Services.
If PreSkale has reasonable grounds to believe that the Client’s or User’s use of the PreSkale Services, including the Account may harm any third persons, PreSkale has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
18. WHO YOU ARE CONTRACTING WITH
You are contracting with PreSkale Technology Inc. a Delaware corporation.
18.2 Governing Law and Jurisdiction
Any dispute arising from or relating to the subject matter of these Terms of Service shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without reference to any conflict of law principles. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in San Francisco, California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Service, including without limitation, this section.
If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.
Use of the PreSkale Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
Notwithstanding the foregoing, you and PreSkale agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
19. GENERAL PROVISIONS
19.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and PreSkale, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
19.3 Entire Agreement
These Terms are the entire agreement between Client and PreSkale regarding Client’s use of the PreSkale Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without PreSkale’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
19.5 No Waiver
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
Last update: March 10, 2022