Welcome to PerfectScale Inc.'s website. Please read the following terms carefully before using the Service so that you are aware of your legal rights and obligations with respect to PerfectScale Inc. (“PerfectScale”, “we”, “our” or “us”). By accessing or using the Service, you expressly agree that you are entering into a legal agreement with us and have understood and agree to comply with, and be legally bound by, these terms of service (“TOS”). These TOS constitutes a binding agreement between PerfectScale (or, if applicable, the other PerfectScale entity specified in the Order (as defined below)) and the user of the Services, and/or the customer entity specified in any Order ( “you”, “your” or “Customer”).
IF YOU DO NOT ACCEPT THE TERMS, YOU MUST NOT CLICK “I AGREE/I ACCEPT/SIGN UP” (OR THE SIMILAR BUTTON OR CHECKBOX), AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY PART OF THE SERVICE.
“Content” means any text, data, information, reports, files, images, graphics, software code, or other content.
“Order” means any order form, sales order, quote, or other ordering documents for the provision of the Service, which is executed by the parties (whether offline or online).
“Platform” – means our free "Beta" and/or paid-up version of both our SaaS and local solutions that stabilize the performance, availability and cost of your Kubernetes ecosystem, and associated application programming interfaces (APIs), software, tools, and Content that we make available to you in connection therewith
“Service” means this website, the Platform, and any Content that we make available to you in connection therewith.
“Service Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Service. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Service Content.
“Subscription” - means the Customer’s continued use of the Platform and software updates for a recurring payment (or at no cost for our Beta version), subject to these TOS.
The Service assists in eliminating at-risk workloads and optimizing resource utilization across Kubernetes ecosystems.
3. Service Access
During the Term (as defined in Section 5.4 below), we hereby grant you and your end users ("End Users") permission to access and use the Service; provided that you use the Service only for lawful purposes within the stated context of acceptable use of the Service, and comply with these TOS and all applicable laws. You shall ensure that such permitted End Users comply with all of the obligations under these TOS, and in any event, you shall remain liable at all times for any acts and/or omissions of any of your permitted End Users with respect to their performance hereunder. PerfectScale may, but is not obligated to, monitor your, and your permitted End Users’ use of the Service. In addition, you agree that we may monitor the Service from our own systems to ensure quality, improve our products and services, and ensure compliance with these TOS.
General. Subject to the terms and conditions of these TOS, PerfectScale grants you a limited, non-exclusive, non-transferable, non-sublicensable and fully revocable right and license, to access and use the Service for your internal end use (“License”). For the avoidance of doubt: (i) the License is subject to whatever usage or consumption limitations and parameters (for example, number of users and available features and functionalities), and you shall not use any technical or other means within, or external to, the Service to exceed or circumvent the License scope. Some features and functionalities may in any event be restricted by geography or otherwise, in order for us to comply with applicable law or commitments to third parties. You acknowledge and agree that your purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of PerfectScale regarding future functionalities or features.
License Restrictions. As a condition to (and except as expressly permitted by) the License, you shall not and shall not allow a permitted End User or any third party to: (i) copy, distribute, create public Internet “links” to, “frame”, “mirror” or modify any part of the Service without our prior written authorization; (ii) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party; (iii) publicly perform, display or communicate the Service and/or modify, adapt, translate, or create a derivative work of the Service; (iv) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code, non-literal aspects, or other underlying components of the Service; (v) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (vi) use the Service to develop any platform, service or product that is the same as (or substantially similar to), or otherwise competitive with, the Service; (vii) take any action that imposes or may impose an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (viii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose any Service Content; (ix) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended to damage or disrupt the Service, or use or launch any automated system, including “robot”, “spider”, or any other automated means to access the Service; (x) circumvent, disable or otherwise interfere with security-related features of the Service or features or protocols that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; and/or (xi) violate applicable laws or any third party rights.
Account. In order to access some of our Services, you are required to create an account (“Account”) by submitting certain information (such as identification or contact details) requested in the applicable form or interface as part of the registration process. You shall be responsible and liable for maintaining the confidentiality and security of the Account credentials, as well as for all activities that occur under or in such Account, and you may not sell, share, transfer, sublicense or otherwise make the access credentials available to others. You agree not to create an Account for anyone else or use the Account of another without their permission. When creating your Account, you acknowledge and agree: (i)to provide accurate and complete Account and login information; (ii) to keep, and ensure that End Users keep, all Account login details and passwords secure at all times; (iii) to remain solely responsible and liable for the activity that occurs in connection with your Account; (iv) that the login details for each End User may only be used by that End User, and that multiple people may not share the same login details; and (v) to promptly notify PerfectScale in writing if you become aware of any unauthorized access or use of your Account or the Service. You may cancel your Account at any time by using the tools that we make available within the Service or by sending a cancellation request to us at firstname.lastname@example.org in which case we will use commercially reasonable efforts to respond within a reasonable time. To the maximum extent permitted by law, PerfectScale can delete your Account at any time in case of fraud, breach of these TOS, or other misuse of the Service.
5. Subscription; Payment.
The Platform is currently in the “Beta” stage, includes a single Subscription Type (as defined below), and is provided free of charge. We reserve the right in the future to charge a fee for features and/or uses which are currently made available free of charge. Any failure to pay applicable charges may result in you not having access to some or all of the Services.
In our sole discretion, use of the Platform may become subject to payment of a fee to be paid in advance by you to activate the Account or continue its availability and your use (“Fee”), which will enable you and your End Users to continue to have access to and use the Platform. Upon establishment of an Account, you may be asked to select a type of Subscription for the Platform, including annual or monthly Subscriptions (each, a “Subscription Type”). Different Fees may apply to different Subscriptions Types and different terms (i.e. monthly or annually). The standard pricing options for each Subscription Type are shown on the pricing page accessible after the Beta period ends. PerfectScale may, from time to time and at its absolute discretion, offer discounts to the Fees charged and/or granted free of charge usage of the Platform, on a case by case basis. Any such discounts and/or free of charge services should not be considered as a permanent offer and the fee that PerfectScale charges on a recurring basis is according to the PerfectScale’s policy as will be updated from time to. In addition, PerfectScale may change the price of the Platform and any Subscription Type at any time, and if you have an active Account, we will notify you by email, or other reasonable manner, at least 10 days before the price change. If you do not agree to the price change, you must cancel and stop using the Platform before the price change takes effect.
All Fees are stated and are to be paid, in US Dollars. All amounts payable under these TOS are non-refundable, non-cancellable, and exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. For the avoidance of doubt, there are no refunds or credits for periods in which you or your End Users did not use an activated Account, used an Account only partially, deactivated an Account, or terminated these TOS during an ongoing payment interval. If, after establishing an Account, you elect to upgrade to a more expensive Subscription Type, the unused portion of any prepaid Fees shall be allocated pro-rata against the Fee to be paid with respect to the upgraded Subscription Type, as agreed with PerfectScale and in accordance with PerfectScale’s policy. Your payment may be processed through a third party payment processing service, and additional terms may apply to such payments. We reserve the right to use other third party payment processing services for such purposes in the future. For all versions of the Service, we reserve the right in the future to charge a Fee for features and/or uses which are currently made available free of charge. Any failure to pay the Fees and other applicable charges may result in you not having access to some or all of the parts of the Service and we reserve the right to temporarily suspend access to the Service or terminate these TOS if you are 14 days or more overdue on a payment.
Upon expiration of the Subscription term specified for each Subscription Type as detailed at the pricing page accessible after the Beta period ends (“Initial Subscription Term”), the Subscription shall automatically renew for successive renewal terms of equal length of 1 month or year (depends on your Subscription Type) (each a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either party gives the other notice of non-renewal at least 30 days in case of a monthly Subscription, and 60 days in case of a yearly Subscription, before the end of the relevant Subscription Term. The Fees during any such renewal term shall be subject to PerfectScale’s pricing system and according to your Subscription Type, all as further detailed on PerfectScale’s website. If you continue to access or use the Platform past any Subscription Term renewal date, you shall be deemed to have renewed your Subscription to the Plartform for the corresponding renewal period and shall be liable to pay all applicable Fees in connection with such renewal period. For the avoidance of doubt, your termination of the Subscription does not terminate your rights to use the any other of our Services including the website, which are governed by sections 15 and 16.
6. Intellectual Property Rights
PerfectScale (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including, without limitation, all intellectual property rights) in and to the Service, Service Content, the Service’s data, including, without limitation, the text, software, design, graphics, photos, sounds, videos, interactive features, and services, and all reproductions, corrections, modifications, enhancements and improvements to the Service. If you contact PerfectScale with feedback data, whether orally or in writing (e.g., questions, comments, feedback data, reports, suggestions or the like), regarding the Service (“Feedback”), such Feedback shall be deemed the exclusive property of PerfectScale, and you hereby irrevocably transfers and assigns to PerfectScale all intellectual property rights to the Feedback and waives any and all moral rights or economic rights that you may have in respect thereto. PerfectScale is under no obligation to implement any Feedback it may receive from you. PerfectScale retains the right to use all publicly published delivered works for PerfectScale marketing and promotional purposes.
7. Third Party Content
The Service may enable you to communicate with third parties or view third party content. To the maximum extent permitted by law, PerfectScale shall have no responsibility or liability of any kind whatsoever for such third party content or for the policies, practices, actions or omissions of third parties.
8. Customer Content
The Service may permit the submission, uploading and transmitting through, the Service, by or on behalf of Customer, of: (i) documents, quotes, pricing lists, data, drawings, proposals, information, ideas, interactions, text, methods, techniques, processes and projections, plans, financial information, notes, logos, trademarks or other materials provided by you, if any, for use in connection with the Service; and (ii) any other content by you, your End Users, and other users in connection with your use of the Service (collectively, “Customer Content”). As between you and PerfectScale, you are the exclusive owner of your Customer Content. You are solely responsible for all Customer Content uploaded, entered or otherwise transmitted by you. You warrant, represent and covenant that no Customer Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. You represent and warrant that you own or have the necessary rights, consents and permissions and will maintain all ongoing legal bases under relevant privacy laws (if applicable), necessary grant us the licenses herein, and to provide, make available, and otherwise expose Customer Content to us, our affiliates, and the hosting provider (if applicable). You will ensure that you only provide or make available to us personal data or other personally identifiable information if strictly required for you to use the Service. you will ensure, and hereby represent and warrant, that no processing of Customer Content under these TOS (whether by us, our affiliates, or if applicable the hosting provider) will violate any law, proprietary right, or privacy right.
We reserve the right in our sole discretion and without further notice to you, to monitor, censor, edit, remove, delete and/or remove any and all Customer Content posted on the Service at any time and for any reason. To the maximum extent permitted by law, PerfectScale shall have no liability to you with respect to the Customer Content, including, without limitation, for its accuracy, legality, and quality, for ensuring your Customer Content does not violate any applicable laws or third party rights and liability with respect to any information contained in or apparent from any Customer Content.
The Service is not intended to, and will not, operate as data storage or archiving product or service, and you agree not to rely on the Service for the storage of any Customer Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Customer Content and other safeguards appropriate for your needs. You retain all right, title, and interest in and to your Customer Content. To the extent that Customer Content contains any third party data, you hereby warrant to have obtained all required consents from such third party to allow PerfectScale to use the Customer Content as set forth on these TOS.
By submitting any Customer Content to PerfectScale, you hereby grant PerfectScale and its affiliates a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicense-able and transferable right and license to use, store, copy, reproduce, process, modify, distribute, prepare derivative works of display, and perform the Customer Content in connection with the Service and PerfectScale’s business administrator and make improvements to the Service (including, to improve the algorithms underlying the Service).
You acknowledges that in order to provide the Service, PerfectScale may analyze the Customer Content by certain materials, products, software and/or algorithm processing, and gain suggestions, comments, feedback and/or results through such use (collectively, “Insights”). You hereby agree that PerfectScale may use such Insights for commercial and internal business purposes, including without limitation, sharing the Insights with third parties, in order to improve and optimize the Service without any obligation (including payment or reporting obligation) to you.
9. Analytics Information
Notwithstanding any other provision of these TOS, we may collect, use and publish Anonymous Information relating to you or your End Users’ use of the Service, and disclose it to provide, improve and publicize the Service and for other business purposes. “Analytics Information” means information which does not enable the identification of an individual, such as aggregated and analytics information. PerfectScale owns all Analytics Information collected or obtained by PerfectScale.
We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Service, and your use thereof, as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request; (ii) enforce these TOS, including to investigate potential violations of them; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; and/or (v) protect the rights, property or safety of PerfectScale, its users or the public.
12. Warranty Disclaimers
This Section applies whether or not the Service is for payment. Applicable law may not allow the exclusion of certain warranties, so to that extent certain exclusions set forth herein may not apply.
YOU ACKNOWLEDGE THAT THE SERVICE IS IN A "BETA" STAGE OF DEVELOPMENT AND IS PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICE IS CURRENTLY UNDERGOING TESTING AND FEATURES AND FUNCTIONALITY OF THE SERVICE MAY NOT BE FULLY IMPLEMENTED OR REFINED. AS WITH ANY BETA VERSION, THERE MAY BE UNRESOLVED ISSUES DESPITE OUR SCANNING. WE MAY NOT OFFER FULL OR ANY TECHNICAL SUPPORT FOR THE BETA VERSION OF THE SERVICE. YOU ARE ADVISED TO SAFEGUARD YOUR DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICE AND/OR ACCOMPANYING MATERIALS. THE POSSIBILITY OF THE CORRUPTION OF DATA AND/OR THE LOSS OF DATA EXISTS. WE STRONGLY ENCOURAGES YOU TO BACK UP ALL DATA AND INFORMATION. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH THE USE OF THE SOFTWARE OR SERVICE.
PERFECTSCALE DOES NOT GUARANTEE THAT THE SERVICE WILL BE FREE OF BUGS, SECURITY BREACHES, OR VIRUS ATTACKS. THE SERVICE MAY OCCASIONALLY BE UNAVAILABLE, FOR EXAMPLE, FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT PERFECTSCALE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS. WE DO NOT WARRANT THAT THE CONTENT AVAILABLE ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE AND/OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL CODE.
YOU SPECIFICALLY ACKNOWLEDGE THAT PERFECTSCALE SHALL NOT BE RESPONSIBLE FOR THE CUSTOMER CONTENT OR CONDUCT (INCLUDING DEFAMATORY, OFFENSIVE, ILLEGAL OR NEGLIGENT CONDUCT) OF ANY CUSTOMER AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. PERFECTSCALE DOES NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT THAT APPEARS IN A CUSTOMER CONTENT, AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE TRUTHFULNESS, ACCURACY, LEGALITY, COMPLETENESS, TIMELINESS OR RELIABILITY OF ANY CUSTOMER CONTENT, AND DISCLAIMS ALL LIABILITY FOR, ANY SUCH CONTENT.
PERFECTSCALE MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICE OR TIMELINESS OF THE SERVICE IN MEETING YOUR OBJECTIVES. NO PART OF THE SERVICE OR ANY INFORMATION CONTAINED ON AN ACCOUNT IS INTENDED TO CONSTITUTE ADVICE BY PERFECTSCALE. WE ARE NOT LIABLE OR RESPONSIBLE FOR ANY RELIANCE PLACED ON THE SERVICE OR THE ACCOUNT, AND THE CONTENTS OF THE SERVICE OR THE ACCOUNT, BY YOU OR ANYONE WHO YOU MAY INFORM OF ITS CONTENTS.
13. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PERFECTSCALE (INCLUDING ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND AGENTS) SHALL NOT BE LIABLE FOR (I) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; AND/OR (III) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL, ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF PERFECTSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PERFECTSCALE (OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND AGENTS) FOR ANY DAMAGES ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO PERFECTSCALE FOR USING THE SERVICES DURING THE 6 MONTHS PRIOR TO BRINGING THE CLAIM. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN 1 YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless PerfectScale and our affiliates, respective officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Service; (ii) your Customer Content; (iii) your interaction with any Service customer; and/or (iv) any breach of these TOS, any violation of applicable laws and/or any infringement, misappropriation or breach of third party rights.
15. Term and Termination
These TOS shall become effective on the date that you commence access to or use of the Services and shall survive until terminated by PerfectScale or by you pursuant to Section 5.4. Upon termination of these TOS, you shall cease all use of the Services. To the maximum extent permitted by law, PerfectScale, in its sole discretion, has the right to discontinue or modify any aspect of the Service and/or terminate these TOS and/or your access to the Service, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of these TOS). PerfectScale shall not be liable to you or any third party for termination of the Service, or any part thereof. If you object to any term or condition of these TOS, or any subsequent modifications thereto, or become dissatisfied with the Service in any way, your only recourse is to immediately discontinue use of the Service.
16. Effect of Termination
Upon termination of these TOS for any reason: (i) the Subscription shall automatically terminate; (ii) you shall cease all access and use of the Service; and (iii) you shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable. Unless otherwise stated in these TOS or any other agreement between the parties or required under applicable law, termination shall not give rise to any refund. You acknowledge that following termination you will lose all access to the Service and to any data that we may be stored on your behalf, including access to any Customer Content. It is your responsibility to download your data prior to canceling your Account or any termination of these TOS. Notwithstanding the foregoing, for a period of 30 days from the effective date of termination of these TOS, we will provide you, upon your written request, with a reasonable opportunity to download your data at a time nominated by us. We reserve the right to permanently delete from our (or our third party service provider’s) servers any data that may be contained in your Account at any time following said 30-day period without affecting any of Company's rights to the Analytics Information. We do not accept any liability for any termination of the Service or data that is deleted in connection thereto. This Section 17 and Sections 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19 and 20 shall survive termination of these TOS.
We reserve the right to temporarily suspend access to the Service: (i) if we deem such suspension necessary as a result of your breach of the TOS ; (ii) if we reasonably determine suspension is necessary to avoid material harm to us, to our other customers, or to the Service (for example, if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of our control); and/or (iii) as required by law or at the request of governmental entities.
These TOS, and any rights granted hereunder, may not be transferred or assigned by you, but may be assigned by PerfectScale without restriction or notification. Any prohibited assignment will be null and void. Subject to the provisions of this Section, these TOS will bind and inure to the benefit of each party and its respective successors and assigns.
To the fullest extent permissible by law, we reserve the right, at our discretion, to modify and replace any information, specifications, features or functionalities of the Service (but not material functionalities to which you are entitled under the Order, unless it improves the material functionality), as well as any user interface, of the Service. PerfectScale may from time to time update or revise these TOS. If PerfectScale updates or revises these TOS, PerfectScale will post the updated or revised TOS on the website or by any other manner chosen by PerfectScale in its commercially reasonable discretion. Such change will be effective 15 days following the foregoing notification thereof, and your continued use of the Service thereafter means that you accept those changes to these TOS as updated or revised. You can view the most current TOS on our website. It is your responsibility to review the TOS periodically and we encourage you to do so.
These TOS shall be governed by and construed in accordance with the laws of the State of Israel, without regard to its principles of conflict of laws. You agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv-Jaffa and waive any jurisdictional, venue, or inconvenient forum objections to such courts, provided that PerfectScale may seek injunctive relief in any court of competent jurisdiction. These TOS, and any other legal notices published by us in connection with the Service, shall constitute the entire agreement between you and PerfectScale concerning the Service. In the event of a conflict between these TOS and any of the foregoing, the terms of these TOS shall prevail. No amendment to these TOS will be binding unless in writing and signed or otherwise executed by PerfectScale. If any provision of these TOS is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these TOS, which shall remain in full force and effect. No waiver of any term of these TOS shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under these TOS shall not constitute a waiver of such right or provision.