These Terms are updated and effective as of 03.25.21.
We refer to you (our users and website visitors) collectively in these Terms using “you” and/or “your,” and we refer to all users of Perch Services, including Admins, Coaches, Athletes (each as further defined below) and other visitors or users of the Site and/or App, collectively, as “Users.” These Terms govern your use of the Perch website located at https://perch.fit (the “Site”), the web application located at https://app.perch.fit (the “App”), the tablet application (“Tablet App”) and related camera and other hardware products Perch offers to track and optimize workouts on Site at Users’ facilities (collectively, the “Gym Devices”). Each of the Site, App, Tablet App, and Gym Devices, along with the business functions relating to operating the same, collectively constitute the Perch “Services.”
As used herein, the term “Participating Organization” means any organization or entity that has entered into an agreement with Perch regarding the use of the Services by the Participating Organization’s members, employees, or students (as applicable) at the Participating Organization’s gymnasium or similar athletic space.
You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services.
PLEASE NOTE THAT, EXCEPT AS PROVIDED BELOW, THESE TERMS REQUIRE RESOLUTION OF DISPUTES THROUGH USE OF AN ARBITRATION SERVICE. YOU HEREBY AGREE THAT ALL DISPUTES ARISING FROM, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE SERVICES WILL BE RESOLVED IN ACCORDANCE WITH THE ARBITRATION AND GOVERNING LAW PROVISIONS SET FORTH BELOW. YOU HAVE THIRTY DAYS FOLLOWING YOUR INITIAL ACCEPTANCE OF THESE TERMS AND/OR USE OF OUR SERVICE TO OPT-OUT OF OUR ARBITRATION REQUIREMENT.
IMPORTANT DISCLAIMER REGARDING YOUR HEALTH
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU ARE OF AN APPROPRIATE FITNESS LEVEL TO USE THE SERVICES, ANY OF YOUR EQUIPMENT, AND/OR ANY EQUIPMENT OFFERED BY A PARTICIPATING ORGANIZATION. IF YOU ARE IN ANY DOUBT AS TO WHETHER IT IS SAFE FOR YOU TO USE THE SERVICES, YOU AGREE TO CONSULT A DOCTOR OR PHYSICIAN PRIOR TO USING SUCH SERVICES.
PERCH IS NOT A HEALTH APP, DOES NOT PROVIDE HEALTH OR MEDICAL ADVICE, AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER OF ANY PARTICULAR HEALTH, FITNESS, MEDICAL, OR OTHER CAPABILITIES OF OUR SERVICES. AS FURTHER SET FORTH HEREIN, YOU AGREE THAT PERCH SHALL HAVE NO RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY OR OTHER HARM THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE SERVICES.
PERCH DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE AVAILABILITY, FITNESS, LAWFULNESS, OR OTHER CHARACTERISTICS OF ANY PARTICIPATING ORGANIZATION’S FACILITIES OR EQUIPMENT THAT USERS MAY UTILIZE WHILE USING PERCH’S SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE PARTICIPATING ORGANIZATIONS’ EMPLOYEES OR OTHER AGENTS ARE NOT EMPLOYEES OR AGENTS OF PERCH, AND PERCH IS NOT RESPONSIBLE FOR THEIR CONDUCT.
Eligibility for the Services
If you sign up for the Services on behalf of a Participating Organization, you (i) represent and warrant to Perch that you have the authority to bind your Participating Organization to these Terms, (ii) acknowledge and agree that you have had a reasonable opportunity to review these Terms in collaboration with your Participating Organization, and (iii) agree that you are prepared to be fully bound both as an entity and an individual User to these Terms. You further agree to contact us promptly at email@example.com in the event you have any reason to believe that you have entered into these Terms on behalf of your Participating Organization by mistake.
The Services are intended solely for persons who are at least 13 years old. By using the Services you represent and warrant that you are at least 13 years old. If you are not 13 or older, you may not use the Services.
If you are older than 12 but younger than 18, you may only use the Services with the valid consent of your parent or guardian, and if they agree to these Terms on your behalf in that capacity. You agree that you will not use the Services if you do not have such consent and agreement from your legal guardian.
Only those who are 18 years of age or older may use the Services on the basis of their personal acceptance of these Terms and where any Participating Organization of which such Users are a part has an account in good standing with Perch.
Accounts and Users
Users of the Services may have one or more of the following three roles:
Admin. The “Admin” User who initially set up an account on behalf of their gym, themselves, or a Participating Organization. An Admin has the ability to administer the account, communicate with Perch on behalf of the entire account, and add other Users (including both coaches and Athletes) to the Account. Admins can create groups, add Athletes and/or Coaches, and appoint other Admins on the Participating Organization’s account.
Athlete. An individual “Athlete” User is one whose account was created by an Admin. An Athlete can update their height, weight, and gender information prior to any workout through the App and see his or her own performance metrics through the App, but not the performance metrics of any other User.
Coach. Admins can add a user as a Coach, which will allow that user to view aggregate information about multiple Athletes within a Participating Organization. Coaches can export certain athlete data through their App account.
As a User, you are required to sign up for an account, and select a password and username (“User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You agree to select a User ID that does not misrepresent your identity as that of another user or identifiable individual.
“Athletes” are Users affiliated with a Participating Organization that do not have supervisory authority over other Athletes. Admins have access to all of the data associated with Athletes they supervise. Admins may create or edit accounts for other Admins, Coaches, and/or Athletes, including without limitation by choosing the identifying name, photo, and other profile information about such Athlete Users.
As a User, you agree that the Admin on your account may perform these functions on your behalf. Admins agree to be responsible for ensuring that all Users on their account have given sufficient permission to be added to that account.
All Users hereby grant Perch a license, as further defined in the “Content” section below, to use any data, images, and/or other information you provide through the Services (“Submitted Information”) for the purpose of providing the Services, and represent and warrant that they have any all rights in the Submitted Information necessary to grant Perch the foregoing license.
In addition to your obligations as a User, as an Admin, you have the ability to enter personal information about other Users. As a condition of accessing any administrative functions of, or holding an account with privileges of, an Admin on our Services, you:
- Agree to obtain specific written parental consent before transmitting Submitted Information regarding a person less than 18 years of age on or through the Services.
- Agree never to submit Personal Information about any person under 13 years of age through the Services or otherwise to Perch.
- Represent and warrant that you have the authority to bind any applicable Participating Organization to these Terms.
- Agree to ensure that your Participating Organization makes timely payments to Perch for the Services at Perch’s then-current rates.
- Agree that, in the case of your, or your Participating Organization’s, breach of these Terms, including any payments due to Perch and overdue by more than 30 days, Perch may terminate the account of your Participating Organization and require the return of any Gym Devices issued to you that have not been paid for in full. In this case, you will not be entitled to any refund of fees paid for Gym Devices or related services.
- Agree to use all of the data, reports, and other information available to you as a part of the Services in accordance with any applicable law.
- Agree to use all of the data, reports, and other information available to you through the Services solely in accordance with the consent of the applicable data subject.
Acknowledge and agree that use of the Perch Application Programming Interface (the “API”) is optional; however, if you choose to access the Perch API, you (i) agree to the terms and conditions of the Perch API Agreement, which governs your use of the API, (ii) represent and warrant that you will use the API solely in accordance with these Terms and the Perch API Agreement, and (iii) agree that you have obtained any and all rights, consents, or similar mechanisms necessary from your Users, your Participating Organization, and any relevant third parties to use the API to obtain Submitted Information.
Perch reserves the right to terminate or deactivate user accounts that have overdue fees outstanding for more than fifteen (15) days in Perch’s sole discretion, provided that Perch’s right in connection with overdue accounts shall not be effected in any way by Perch’s election of whether to terminate or deactivate any particular overdue account.
Fees and Payments
You agree to make timely payment of all fees and costs due to Perch in connection with your use of the Services, which may include, without limitation:
- Purchase or lease of Gym Devices, including without limitation hardware equipment such as gym cameras, tablets, batteries, and related accessories; and
- Subscriptions to our proprietary software platform, the App, the Tablet App, and related software services (“Software Services”).
Perch charges separately for Gym Devices and Software Services. Gym Devices may be billed as a standard monthly payment or a one-time fee followed by additional monthly payments, and may be offered with special prices where agreed in a separate written agreement by you and Perch. Software Services are offered according to an annual or monthly subscription, and the applicable subscription period for your account is referred to in these Terms as the “Subscription Period.”
If you access the Services directly through the App, you agree to be billed in advance for a monthly subscription at Perch’s then-current subscription rates. Subscription fees are nonrefundable. To cancel your subscription, you must email firstname.lastname@example.org no less than thirty (30) days prior to the date on which you’d like to terminate your account if you are leasing or financing a hardware purchase with Perch; in such cases, you may have the option to purchase the applicable hardware from Perch rather than returning it. You agree that Perch will not refund your monthly subscription fees for the month in which we first receive a notice that you wish to terminate your account.
If your access to the Services is facilitated by our support team, or if you contract with us on behalf of a Participating Organization, Perch may, but is not obligated to, offer custom pricing for your Services. You agree to pay all fees agreed between you and Perch for the Services during your applicable Subscription Period in any separate contract between you and Perch. In the event that you enter into a separate written contract with Perch regarding such custom pricing, you agree to be fully bound by both that contract (“Your Custom Contract”) and these Terms. You agree to pay all fees and costs set forth in Your Custom Contract, if applicable, for the Services. Any offers Perch may choose to make to you for discounts, promotions, or other unique payment arrangements are available subject to certain conditions according to Perch’s sole discretion.
Your Custom Contract may set forth certain specific and limited hardware warranties applicable to your lease or purchase of Gym Devices, and where Perch agrees to offer you these specific and limited warranties, these warranties, and your obligation in connection with these warranties, apply notwithstanding the general disclaimers of warranties in these Terms. In the event of a conflict between Your Custom Contract and these Terms, (i) Your Custom Contract will control on matters of price, returns and exchanges, specific hardware warranties, and the scope of Services and (ii) these Terms will control on all other matters.
If you choose to purchase a tablet separately, you acknowledge and agree that Perch makes no representation or warranty whatsoever regarding the suitability of your tablet to interoperate with the Perch systems. We will provide reasonable assistance in installing the Perch Services on your personal devices, but cannot guarantee that your device will meet the then-current Play Store and/or App Store requirements for the latest version of Perch’s Software Services.
From time to time, we may offer a “free trial” period on our Site (including without limitation the store available at https://shop.perch.fit) or directly to you through our sales functions. In the event that you choose to take advantage of a free trial offer, you agree that:
- The free trial period will commence on the day any Gym Devices first arrive at your facility after being shipped from Perch and continues for thirty (30) days thereafter.
- If you choose to continue using the Services following the free trial period, you agree you will be charged for a periodic subscription fee following the conclusion of the trial period. You agree to pay this fee on time and in full for each period of your subscription.
- You must notify Perch of your intention to discontinue your free trial before it concludes in order to avoid being billed for any subscription fees.
- The free trial period applies ONLY to Hardware Devices and Services sold directly from Perch to you.
- You will be permitted to return your Hardware Devices at no cost within the 30 day free trial period only if this free trial applies to your use of the Services. In this case, you will be required to pay for return shipping. After the expiration of any free trial period, any Hardware Devices you have purchased are not returnable or eligible for refunds.
- Your use of any Services during a free trial period is subject to and governed by these Terms.
- In some instances, Perch may allow you to extend your free-trial period for a monthly fee.
Please note that any information you have submitted to publicly accessible areas of the Services (such as a blog or message board) may not be removable.
Perch may immediately and without notice terminate these Terms and disable your access to the Services if Perch determines, in its sole discretion, that (a) you have materially breached these Terms; (b) you have violated applicable laws, regulations or third-party rights; (c) such action is needed to protect the safety or property of other users, Perch, or third parties; and/or (d) the agreement with your Participating Organization terminates. If we intend to remove your account in accordance with this section, we will try to provide advance notice to you prior to our removal of your account, but we need not provide notice if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Perch to provide such notice.
Provisions that, by their nature, should survive termination of these Terms shall survive any termination of your account. As an example and not a limitation, any obligation you have to pay us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us are provisions that will survive the termination of your account and/or these Terms.
You agree that your use will adhere to, and that you understand, the following restrictions and obligations:
If you are an Athlete, you may only use the Services for personal use. If you are an Admin or Coach, you may only use the Services for personal use, and/or professional use in overseeing the Athletes’ workout data and accounts. With respect to all Users, you may not transfer your access to others, or allow others to access the Services through your own access without Perch’s prior, express written permission. If you wish to create an organizational or business account, please contact Perch at email@example.com.
You may only use the Services for lawful activity. It is your responsibility to comply with all applicable local, state, and federal laws and regulations.
You may not interfere with or damage the Services, and may not take any action in connection with the Services which presents a risk of interference with or damage to the Services, including, without limitation, through the use of viruses, bots, harmful code, denial-of-Services attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that may exist now or come to exist in the future.
Except as authorized through the Service, you may not copy, rip, or capture any content encountered on the Service.
You may not use the Services to upload, transmit, or promote any material that infringes or violates the intellectual property rights, privacy rights, and/or any other rights of anyone else (including Perch).
Conditioned upon your compliance with these Terms, Perch grants you a limited, non- exclusive, non-transferable license, to (i) access, view, and use the Services solely for your personal use and (ii) access and view any Content to which you are permitted access. You have no right to sublicense the license rights granted in this section. You may not and will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast or otherwise exploit Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Perch or its licensors, except for the licenses and rights expressly granted in these Terms.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws.
Further, you acknowledge that the Services, including all associated intellectual property rights, are the exclusive property of Perch and its licensors.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit content, including but not limited to new account provisioning, workout routines or other demonstrations (“User Content”). For the avoidance of doubt, all data collected by Perch as a result of a User’s use of the Services is considered “User Content.”
By submitting any User Content or Submitted Information on or through the Services, you grant to Perch a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, transmit, stream, broadcast, access, view, and otherwise exploit such User Content and Submitted Information, in any media, in order to (i) with respect to User Content and Submitted Information other than your Athlete data, operate, promote, improve, or market the Services; and (ii) with respect to your Athlete data, operate and improve the Services. You acknowledge and agree that you are solely responsible for all User Content you transmit on or through the Services. Accordingly, you represent and warrant that you have all rights, licenses, consents and releases that are necessary to grant to Perch the license above.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You agree that Perch has the right, but not the obligation, to use such Feedback without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Service.
Third Party Content
By using Perch’s Services, Perch may provide you with access to third party websites, information, and Services, including but not limited to third party databases, networks, servers, software, programs, systems, directories, applications, or products. You hereby acknowledge that Perch does control such third-party websites and Services, and cannot be held responsible for their content, operation, or use. Perch does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or Services provided by such third-party websites and services. Perch disclaims any and all responsibility or liability for any harm resulting from your use of such third-party websites and services, and you hereby irrevocably waive any claim against Perch with respect to the content or operation of any such third-party websites and services.
Disclaimer of Warranties; Disputes with Other Users
YOU HEREBY ACKNOWLEDGE THAT YOU ARE USING THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND PERCH, ITS AFFILIATES AND ITS THIRD PARTY SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, SAFETY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. PERCH, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH THE SERVICES.
Because some states do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws.
If there is a dispute between Users of our Services, or between Users and any third party, you agree that Perch is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you hereby release Perch, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL PERCH (OR ITS LICENSORS, PARTNERS, AGENTS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE LESSER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO PERCH IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Perch (a) via email (in each case to the address that you provide) or (b) by posting to the website or other Perch Service.
No Waiver. The failure of Perch to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Perch’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Perch may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
Severability. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Arbitration. These Terms are governed by and will be construed under the laws of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration on an individual basis in Middlesex County, Massachusetts, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Service, Inc. (“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 such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in Middlesex County, Massachusetts.
If you do not agree to the terms of this Arbitration Provision, you may opt-out of Arbitration within thirty (30) days of signing this Agreement by notifying Perch in writing of your intention to opt-out of the Arbitration Provision. This notice must contain (1) your first and last name, (2) your User ID, (3) any Participating Organization with which you are affiliated, (4) the effective date of your notice, and (5) a clear statement of your intention to opt out, ush as “I wish to opt-out of the Arbitration provision in the Perch Terms of Service.” Your opt-out request must be sent either via email from an account carrying the same name and email address as the account subject of the opt-out request to firstname.lastname@example.org OR by postal mail to:
Attn: Arbitration Opt-out
Catalyft Labs, Inc.
288 Norfolk Street,
Cambridge MA 02139
YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND PERCH ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY.
Entire Agreement. These Terms constitute the entire agreement between you and Perch regarding your use of Perch’s Services, and supersede all prior written or oral agreements. Additional terms may apply to certain products or Services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Contact Us. If you have questions about these Terms, or about our use of your information, please contact us at email@example.com.
Catalyft Labs, Inc.
288 Norfolk Street,
Cambridge MA 02139
Modification. Perch reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. If we modify these Terms, we will either post a notification of the modification on our website or otherwise provide you with notice of the change. The date of the last modification will also be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Service, you are indicating that you agree to be bound by any modified Terms.