Terms and Conditions of Use

Welcome to Protoscale Inc. (“Protoscale”) products, software, services, and Website (referred to as the “Services”). Before registering, accessing, or using Protoscale’s Services, please carefully review the terms and conditions of use provided below and the Protoscale Privacy Policy, which is incorporated by reference (collectively referred to as the “Terms of Use”). “Protoscale” means Protoscale and its parent, subsidiaries and affiliates.

BY USING AND ACCESSING THE SERVICES, YOU ARE AGREEING TO THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE THE SERVICES.

Protoscale may modify or update these Terms of Use from time to time without prior notice. Protoscale may also modify, add to, delete, and/or discontinue any or all parts of the Website without prior notice. Your continued use of the Services following any modification or update means you accept any changes made. Protoscale’s Website, www.protoscale.com (the “Website”) contains links to other websites that have their own separate terms and conditions and privacy policies. The terms and conditions and privacy policies of such websites, in addition to other written agreements that you have with Protoscale, govern your use of the services offered on those websites.

USE OF CONTENT
Except for User Content (as defined below), any designs, text, graphics, photographs, images, videos, audio files, and other files or materials, and their selection and arrangement, provided by or accessed through the Website (“Website Content”), and all copyrights, trademarks, service marks, patents, and other intellectual property rights are the property of Protoscale or Protoscale’s licensors. All rights not expressly granted herein are reserved. Unless you have agreed with Protoscale otherwise in writing, nothing in the Terms of Use gives you a right to use any of Protoscale’s trade names, trademarks, service marks, logos, trade dress, domain names, or other distinctive brand features. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Services. Unless you have been expressly authorized to do so in writing by Protoscale, you agree that in your use of the Services, you will not use any trademark, service mark, trade name, trade dress, logo of any company or organization in a way that is likely to cause confusion about the owner or authorized user of such marks, names, or logos.

Any content you submit, including text, photographs, graphics, images, information, multimedia documents, links, and other content enabled by the Website from time to time (“User Content”) may be accessed by you and other users, subject to the restrictions set forth herein. Do not submit User Content if you do not want other users to have access to it. Under no circumstance will Protoscale be held liable for any errors or omissions in any User Content or for your exposure to User Content that you deem offensive, indecent, or objectionable. Protoscale may, but is not obligated to, review and delete or remove any of the User Content, without prior notice, for any reason, including but not limited to, if in Protoscale’s sole judgment, such User Content violates the Terms of Use. By submitting User Content to the Website, you grant to Protoscale, the non-exclusive, royalty-free, perpetual, irrevocable, transferable, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, sell, perform, and display such User Content (in whole or part, including modified or adaptive versions thereof) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, without any obligation to acknowledge authorship or ownership. You warrant you have all rights necessary to disclose such User Content and post it to the Website, and that submitting the User Content will not violate the rights of any third party, including without limitation any proprietary or privacy rights.

USER ACCOUNTS
You may be required to register with Protoscale to access certain areas of the Website. When you register, you may be required to provide personal information that may be used to identify you including, but not limited to, your name, address, e-mail address, or other personally identifiable information. You acknowledge and understand that through your use of the Services, you consent to the collection and use of your personal information. Your submission of such personal information to Protoscale is always voluntary; provided, however, certain information may be obtained and used just by your access to the Protoscale Website. The personal information you submit to the Website will be treated by Protoscale in accordance with the Protoscale Privacy Policy. To the extent there is an inconsistency between these Terms of Use and the Website Privacy Policy, these Terms of Use shall govern.

You agree (a) that any personal information you provide to Protoscale will be accurate, correct, and current; (b) to use the Services only for purposes that are permitted by the Terms of Use and any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries); and (c) that you are solely responsible for (and that Protoscale has no responsibility to you or to any third-party for) any breach of your obligations under the Terms of Use and for the consequences (including any loss or damage which Protoscale may suffer) of any such breach.

USER CONDUCT
You agree not to use any of the Website to:

  • Attempt to gain unauthorized access to the Website, User Content, or computer systems and networks connected to the Website;
  • Upload, post, email, transmit, or otherwise make available any User Content that is unlawful, harmful, threatening to another person or entity, abusive, defamatory, vulgar, obscene, tortuous, indecent, libelous, invasive of another’s privacy, or otherwise objectionable;
  • Harm legal minors;
  • Impersonate another user, person, or entity, or falsely state or otherwise misrepresent your affiliation with another user, person, or entity;
  • Collect and store personal data about other users, “cyber stalk” or harass another user or engage in conduct that negatively affects the on-line experience of another;
  • Upload, post, email, transmit, or otherwise make available any information or content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
  • Upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or any other form of solicitation;
  • Upload or transmit any information that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
  • Reproduce, modify, rent, lease, loan, sell, trade, resell, or create derivative works based on the Website Content or User Content for any commercial purpose;
  • Intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
  • Attempt to take any action that, in Protoscale’s sole discretion, imposes or may impose an unreasonable or disproportionately large load or burden on the Website or the infrastructure of the Website; or
  • Interfere with the operation of the Website or other computers or internet or network connections.

You acknowledge and agree that Protoscale may access, preserve, and disclose the User Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms of Use; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect Protoscale’s rights, property, or personal safety, or the rights, property, or personal safety of Protoscale users and the public. You understand that use of the Services is subject to usage rules set by Protoscale and/or content providers who provide content to the Website. Protoscale may, at Protoscale’s sole discretion and without notice, terminate your account and/or your right to access or use the contents of the Website for violations of the Terms of Use. You may not attempt to override or circumvent any of the usage rules.

TERMINATION; SURVIVAL OF TERMS OF USE
You agree that absent a written agreement to the contrary, Protoscale may under any circumstances and without prior notice temporarily or indefinitely suspend you from the Website or from use of any of the Services. You acknowledge and agree that all of the legal rights, obligations, and liabilities that you and Protoscale have benefited from, been subject to (or which have accrued over time while the Terms of Use have been in force), or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of the Terms of Use that by their nature would survive its termination shall survive indefinitely.

DISCLAIMER OF WARRANTIES
NOTHING IN THESE TERMS OF USE SHALL EXCLUDE OR LIMIT PROTOSCALE’S WARRANTY OR LIABILITY FOR LOSSES, WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND PROTOSCALE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROTOSCALE IS NOT RESPONSIBLE FOR EVENTS BEYOND ITS CONTROL, INCLUDING BUT NOT LIMITED TO UNAVAILABILITY OF THE SERVICES, OR UNAVAILABILITY OF THE PROTOSCALE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROTOSCALE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE. SPECIFICALLY, PROTOSCALE MAKES NO REPRESENTATION OR WARRANTY TO YOU THAT (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (D) THAT DEFECTS IN THE QUALITY, OPERATION, OR FUNCTIONALITY OF ANY OF THE SERVICES PURCHASED OR OBTAINED BY YOU WILL MEET YOUR REQUIREMENTS.
PROTOSCALE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROTOSCALE AND ITS PARENT, SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS LIMITATION 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 DUE TO BUSINESS INTERRUPTION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (1) ANY CHANGES THAT PROTOSCALE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (2) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT OR OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (3) YOUR FAILURE TO PROVIDE PROTOSCALE WITH ACCURATE PERSONAL INFORMATION; (4) YOUR ABILITY TO ACCESS, OR THE AVAILABILITY OF, EXTERNAL WEBSITES OR RESOURCES (WITH HYPERLINKS ON THE PROTOSCALE WEBSITE), OR YOUR RELIANCE ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY CONTENT OR OTHER MATERIALS ON, OR AVAILABLE FROM, SUCH WEBSITES, CONTENT, OR RESOURCES.

THE LIMITATIONS ON PROTOSCALE’S LIABILITY TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT PROTOSCALE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

INDEMNIFICATION
You will indemnify, defend, and hold harmless Protoscale (and its parent, subsidiaries and affiliates, and its respective officers, directors, agents, joint ventures, and employees) from any costs, expenses, claims, or demands, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach or violation of the Terms of Use, your use of the Services, or your violation of any law or the rights of any third-party.

TESTIMONIALS
The Website may contain comments and statements by third parties about Protoscale or its Services. Protoscale does not represent or warrant that any statements or comments by third parties are accurate or that you will have a similar experience. Protoscale explicitly disclaims any liability for reliance on any comments or statements made by third parties.

COPYRIGHT POLICY
Protoscale respects the intellectual property rights of others and Protoscale asks its users to do the same. If you are a copyright owner or an agent thereof and believe that any of the Website Content, the User Content, or other content or material on any of the Website infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Protoscale’s Copyright Agent with the following information in writing as outlined in 17 U.S.C. § 512(c)(3):

  1. A physical or electronic signature of the owner of the right that is allegedly infringed or a person authorized to act on their behalf;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of the copyrighted works;
  3. Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material on the Website;
  4. Information reasonably sufficient to permit us to contact the owner or agent, such as an address, telephone number, and email address;
  5. A statement that the owner or agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Protoscale’s designated Copyright Agent for receiving notifications of claimed infringement is:

Protoscale Inc.
701 Seneca St.
Suite 255
Buffalo, NY 14210
Attention: Erik Gregory, Finance Manager
Via email to: erikg@protoscale.com

In accordance with the DMCA and other applicable law, Protoscale has adopted a policy of terminating, in appropriate circumstances and, at Protoscale’s sole discretion, members who are deemed to be repeat infringers. Protoscale may also, at Protoscale’s sole discretion, limit access to the Website and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

LINKING
The Services may include hyperlinks to other websites, content, or resources. Protoscale has no control over any websites or resources that are provided by companies or persons other than Protoscale. You acknowledge and agree that Protoscale 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 websites or resources.

MISCELLANEOUS
Waiver. No waiver of a breach of any term of the Terms of Use will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of the Terms of Use. No failure on the part of a party to exercise, and no delay in exercising, any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend, or discharge any part of the Terms of Use or the rights or obligations of any party hereunder.

Entire Agreement. Except for any License Agreement, the Terms of Use contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or und­erstandings among the parties with respect to the subject matter hereof. This Agreement may only be amended by a written document signed by all parties. There are no representa­tions, warranties, or obligations of any party not expressly contained herein.

No Third Party Beneficiaries; No Relationship. Except as otherwise expressly provided in the Terms of Use, there shall be no third-party beneficiaries to the Terms of Use. You agree that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms of Use.

Governing Law and Dispute Resolution. The Terms of Use will be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law principles. In the event that any legal proceedings are commenced with respect to any matter arising under these Terms of Use, the parties specifically consent and agree that the courts of the State of New York and/or the Federal Courts located in the State of New York will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action will be in Erie County, New York and/or the U.S. District Court for the Western District of New York. The substantially prevailing party in any judicial action brought to enforce the provisions of these Terms of Use shall be entitled to recover their costs and expenses from the losing party, including reasonable attorneys’ fees, incurred in the preparation for, investigation of, and the filing and prosecuting or defending such action.

Partial Invalidity. If any provision of the Terms of Use is held invalid or unenforceable by a competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it shall then appear. The total invalidity or unenforceability of any particular provision of the Terms of Use will not affect its other provisions and the Terms of Use will be construed in all respects as if the invalid or unenforceable provision were omitted.

TERMS OF USE VIOLATIONS
Please report any violations of the Terms of Use to Protoscale’s support staff.

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