1.1. “Content” shall mean art, graphic art, photos, graphics, images, icons, sounds, sound recording, voice recordings, music, music recordings, sound effects, audiovisual works, animations, text, data indicative of these or any of them, or other similar materials, regardless of format, used, accessed, viewed, consumed, or provided by you in connection with your use of the Site.
1.2. “PortaFab” shall mean Porta-Fab Corporation, a Delaware corporation, and its parents, subsidiaries, officers, directors, employees, agents, affiliates, contractors, licensors, business partners, successors and assigns.
1.4. “Site” shall mean the PortaFab web site located at www.portafab.com and other web sites owned or operated by PortaFab which include or incorporate a link to these Terms, including any on-line services provided by PortaFab via such sites.
1.5. “User Content” shall mean Content that You or other users of the Site provide to be made available to others through the Site.
1.6. “You” and “your” shall mean a user of the Site.
2. Agreement to Terms.
4. Your License to Use the Site
5. Content Ownership
Except for User Content, all Content published, distributed, or otherwise made available on the Site is the sole and exclusive property of PortaFab and/or its licensors (“PortaFab Content”). The PortaFab Content is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or PortaFab Content. All right and interest in and to PortaFab Content is reserved and PortaFab does not grant any right to copy, distribute, alter, modify, or publicly display any PortaFab Content for any purpose other than browsing the Site for the limited purpose of seeking information about PortaFab and its products and services as a customer or potential customer of PortaFab. All other use of the Site and Content is prohibited, including but not limited to competitive intelligence or data scraping for any purpose. Any feedback, comments, or suggestions you may provide regarding PortaFab or the Site is entirely voluntary and PortaFab may use such feedback, comments or suggestions in PortaFab’s sole discretion without any obligation to you.
6. User Content
You are responsible for your use of the Site, for any User Content you post, submit, send, provide, upload, display or cause to be displayed (collectively, “Share” and its derivatives) in connection with your use of the Site, and for any consequences thereof. The User Content you Share may be viewable, accessible, downloadable, and storable by other users of the Site and the general public, directly or indirectly through third party Site, service providers, and/or websites. You agree to only provide User Content you have the right to Share, and are comfortable Sharing, with others under these Terms.
By Sharing User Content, you warrant and represent that you own or otherwise control all of the rights to such content necessary for you to lawfully share the content, and for PortaFab to lawfully use the User Content in connection with the Site. You further warrant and represent that all User Content you Share will comply with the acceptable uses set forth herein, and your User Content will not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
PortaFab has the right to remove or refuse to post any User Content for any or no reason in its sole discretion and to take any action with respect to any User Content that it deems necessary or appropriate in its sole discretion, including if it believes that such User Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for PortaFab.
7. Prohibited Uses
You will not:
1. Use the Site for any purpose that is unlawful or otherwise prohibited by these Terms;
2. Use the Site in any manner that could damage, disable, overburden, or otherwise impair any of the Site, or any Site offered by a third party, or interfere with any other party's use and enjoyment of the Site
3. Attempt to gain unauthorized access to the Site, any services offered in connection therewith, other accounts, computer systems or networks through hacking, password mining or any other means.
4. Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.
5. Use the Site in connection with unlawful contests, lotteries, or gambling; pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
6. Defame, abuse, harass, stalk, threaten, bully, or violate the legal rights (such as rights of privacy and publicity) of others.
7. Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, bullying, or otherwise objectionable or unlawful content.
8. Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group based on race, religion, sex, gender identity, sexual orientation, ethnicity, disability, or nationality.
9. Upload, or otherwise make available files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity), unless you own or control the rights thereto or have received all necessary consents to do same.
10. Use any material or information, including images or photographs, which are made available through the Site in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
11. Upload files that contain viruses, worms, Trojan horses, macros, scripts, keyloggers, data scrapers, packet sniffers, or any other any software or code that interrupts, destroys, inhibits, or limits the functionality of any computer or telecommunications system, software, or hardware.
12. Download any content posted by another user that you know, or reasonably should know, cannot be legally distributed in such manner.
13. Restrict or inhibit any other user from using and enjoying the Site.
14. Harvest or otherwise collect information about others.
15. Violate any applicable laws, policies, or regulations.
16. Create a false identity for the purpose of misleading others. Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. You agree to fully comply with the United States Federal Trade Commission ("FTC") statutes and regulations (if you do business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC.
17. Uses technology or other means to access PortaFab proprietary information in a manner not expressly authorized by PortaFab.
18. Use any automated or directed system to access the Site, or any PortaFab computer systems.
19. Gains or attempts to unauthorized access to PortaFab computer network, computer systems, or user accounts.
20. Encourage or facilitate conduct that would constitute a criminal offense or give rise to civil liability.
21. Make commercial use of the Site, including but not limited to producing or developing content in exchange for payment, remuneration, or consideration of any kind and/or selling content created using any PortaFab software or Site, except to the extent such transactions are expressly authorized by PortaFab and carried out through services provided by PortaFab.
22. Cause annoyance, inconvenience or needless anxiety, or engage in behavior intended to, or likely to, upset, embarrass, alarm or annoy any other person.
23. Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
24. Give the impression that content emanates from or is endorsed by PortaFab or any other person or entity, if this is not the case.
8. Scope of Site
The Site may change from time to time without prior notice to you. You understand and agree that PortaFab is under no obligation to continue providing the Site and may at any time permanently or temporary discontinue providing some or all of the Site. PortaFab may also impose limitations on your use of the Site, including without limitation bandwidth limitations, usage limitations, storage limitations, download limitations, and other limitations. Any limitations imposed are at PortaFab’s sole discretion and may be imposed without prior notice to you.
If you have a login/password for the Site or any services offered in connection therewith, you are responsible for safeguarding your authentication credentials, and for any activities or actions carried out using your account and/or your password. This responsibility includes, without limitation, using a strong password that is difficult to guess or crack. You agree that PortaFab cannot and will not be liable for any loss, damage, or injury arising directly or indirectly from your failure to keep safe and/or secure your account and/or password and you agree to indemnify, defend, and hold harmless PortaFab for same.
10. Term and Termination
The Terms will continue to apply until terminated by you or PortaFab as follows:
You may end your legal agreement with PortaFab at any time for any reason by discontinuing your use of the Site and deactivating your account(s), if any. You do not need to specifically inform PortaFab when you stop using the Site. If you stop using the Site without deactivating your account(s), your account(s) may be deactivated due to prolonged inactivity.
PortaFab may suspend or terminate your access to the Site and/or your account(s) or cease providing you with all or part of the Site at any time for any reason, including, but not limited to, if PortaFab reasonably believes: (i) you have violated these Terms; (ii) you create risk or possible legal exposure for PortaFab and/or other users; or (iii) PortaFab’s provision of the Site to you is no longer commercially viable. PortaFab will make reasonable efforts to notify you by the email address associated with your account, if any, or the next time you attempt to access your account.
In all such cases, the Terms shall terminate, including, without limitation, your license to use the Site and the license grant in Section 9, except that the following Sections shall continue to apply: 7, 10, 13 and 14.
Nothing in this section shall affect PortaFab’s rights to change, limit or stop the provision of the Site without prior notice, as provided in Section 4.
11. Disclaimers and Limitations of Liability
Please read this section carefully since it limits the liability of PortaFab. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions, including New Jersey, do not allow certain disclaimers or limitation of liability in contracts, and as a result the contents of this section may not apply to you or the liability of PortaFab shall only be limited to the maximum extent permitted by law. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
A. The Site Are Provided and Made Available "AS-IS"
YOUR ACCESS TO AND USE OF THE SITE AND/OR ANY CONTENT ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PORTAFAB DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
PortaFab makes no warranty and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Site or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Site or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Site; and (iv) whether the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from PortaFab or through the Site, will create any warranty not expressly made herein.
The Site may contain links to third-party websites or resources. You acknowledge and agree that PortaFab is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or Site on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by PortaFab of such websites or resources or the content, products, or Site available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
C. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PORTAFAB SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SITE; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PORTAFAB EXCEED $10.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT PORTAFAB HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. General Terms
Dispute Resolution. You agree that in the event of any dispute between you and PortaFab arising under these Terms or otherwise in connection with your use of the Site, you and PortaFab shall first attempt to resolve the dispute informally for a period of not less than thirty (30) days commencing upon receipt of a notice by the complaining party setting forth the nature of the complaint and the relief sought. If any claim cannot be resolved informally, such claim shall be heard only in a federal or state court of the State of Missouri having within its territorial jurisdiction the County of St. Louis, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a federal, state, or local government entity in the United States using the Site in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Missouri (excluding choice of law).
Complete Agreement. This Agreement represents the complete agreement between you and PortaFab with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements between you and PortaFab. No other person or company will be third party beneficiaries to these Terms.
Non-Waiver. PortaFab’s failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by PortaFab of any provision, condition or requirement of these Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Severability of Terms. If any provision of these Terms is held to be invalid or unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. If, however, it is determined that such provision cannot be reformed, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
Choice of Law. In any action to enforce the terms of these Terms, Missouri law shall apply.
If you have any questions about these Terms, please contact us.
Last Revision: November 4, 2020