TERMS OF SERVICE FOR MAKERSTUDIO
Last Updated: November 2021
What are these Terms?
These terms form a binding contract between you and us (“these Terms”) regarding your access to and use of any of our web sites, mobile and/or online applications, services, products and Software that contain a link to these Terms (individually and collectively, the “Service”). These Terms include the provisions below and any special terms and conditions relating to the Service (such as, for example, how others can use Your Content, how to contact us, terms regarding membership and subscriptions [if any], the “Special Service Terms”), which can be found at the Special Service Terms link above. Please Note: These Terms only cover the Service.
2. Types of Child and Moderator Accounts.
A. Child User. If You are a User of the Service and are under the age of 13 (“Child User”), You may not register an account for the Service without consent and approval from your legal parent or guardian, or Educator. A Child User that begins the registration process for himself or herself without a Parent User will be given a restricted account until a Parent User or Educator approves or assumes responsibility for the Child User account.
B. Parent User. If You are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child User of the Service, You may register a parent account on the Service (“Parent User”). As a Parent User, you may create, register, manage and approve Child User accounts only for your own child(ren) for whom you are a legal guardian. IF YOU REGISTER, APPROVE THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER’S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE SERVICE BY THE CHILD USER. You acknowledge that FabLab Factory may choose, but is not obligated, to make any inquiries, either directly or through third parties, that FabLab Factory deems necessary to validate Your registration information, including without limitation engaging third parties to provide verification services. FabLab Factory reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT FABLAB FACTORY CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND FABLAB FACTORY IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER’S CLAIM TO BE A PARENT USER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD USER OR AN EDUCATOR DURING REGISTRATION IS SUCH CHILD USER’S ACTUAL PARENT OR GUARDIAN. A Parent User account, along with all associated Child User accounts, may be terminated by FabLab Factory at any time and without warning for any failure to abide by these Terms.
C. Educator. If You are an Educator, there are two ways to work with Learners on Makerstudio. First, You may link Your account to a Learner account as a moderator. If a Learner under the age of 13 has an account and the learner’s legal parent or guardian has not yet given consent and approval through the Service, You will, prior to linking Your account to a learner account as a moderator, either ensure that the learner’s parent or guardian gives consent and approval through the Service or that You or Your organisation obtain consent per the terms that are applicable in Your region (in Europe this means according to the General Data Protection Regulation – GDPR). Second, You may create a team under Your account, through which learners may use the Service without creating an account. If you are an Educator who will be using the Service with learners, Learner Data provided or generated through your or your learners’ use of the Service may be subject to General Data Protection Regulation (GDPR). You agree to the terms located at the General Data Protection Regulation (GDPR) .
3. Changes to the Service or these Terms. We may make changes to, update (or not update) or discontinue any part, element, functionality, availability or offering of the Service. We may also make changes or updates to these Terms at any time and for any reason in our sole discretion, including complying with applicable law. If we make any material changes to these Terms, we’ll provide notice to you in any way we deem reasonable including, for example, by posting a notice of the change on our website(s) or in-service, or by sending a notice to your email address if you’ve given it to us.
4. Your Content.
a. Ownership. These Terms don’t grant us (and we don’t claim) any ownership rights in Your Content.
b. Our Use of Your Content. By posting, providing, uploading, submitting, sharing, publishing, distributing, making available and/or allowing others to access or use Your Content to or through the Service, you grant to us and our affiliates a world-wide, royalty-free, fully paid-up, perpetual, non-exclusive, transferable, and fully sublicensable (through multiple tiers) right and license (but not the obligation) to reproduce, distribute, redistribute, modify, translate, adapt, prepare derivative works of, display, perform (each publicly or otherwise) and otherwise use all or part of Your Content, by any and all means and through any media and formats now known or hereafter discovered, but solely in connection with the Service and/or our business activities (such as, without limitation, for promoting and marketing the Service) and/or to comply with legal or technical requirements. Additionally, to the extent permitted under applicable law, you hereby waive and agree not to assert any and all rights that you may have under laws worldwide that concern “moral rights” or “droit moral,” or similar rights, in connection with Your Content.
c. Posting Your Content. By posting, providing, uploading, submitting, sharing, publishing, distributing, making available or allowing others to access and/or use Your Content to or through the Service You are solely responsible and liable for the consequences of doing so and you acknowledge and agree that Your Content can and may be viewed worldwide. If you choose to make your personal information publicly available through the Service (for example, in a blog or forum), you do so at your own risk. You covenant, represent and warrant that you have obtained all necessary licenses, rights, consents, permissions and waivers to use and grant all of the rights granted in these Terms (including any Special Service Terms) in and to Your Content and that you will comply with any requirements or restrictions imposed by them; if any such requirements or restrictions for Your Content conflict with or are inconsistent with these Terms, then you must not post that Content or otherwise share it publicly on or through the Service.
5. Our “Be Nice” Policy. We expect you to respect the rights and dignity of others. In accessing or using the Service, you must not post, provide, publish, upload, download, display, use, share, distribute or otherwise make available: (a) any Content that meets any of the following criteria or (b) any Content to, from or through any other web site or service that meets any of the following criteria:
• is threatening, degrading, unlawful, unsafe, harmful, abusive, harassing, stalking, hateful, defamatory, libelous, fraudulent, offensive, inappropriate, obscene, pornographic, vulgar or otherwise objectionable;
• violates any applicable law, rule or regulation, or could give rise to legal liability;
• violates or infringes any right(s) of ours or of any other person, firm or entity (including contractual and fiduciary rights, copyrights, trademarks, and rights of privacy and publicity);
• interferes with, destroys or disrupts the Service or any hardware or software through which the Service is made available (including via a virus, worm, malware, spyware, Trojan horse or other similar code, file, or program);
• contains any unauthorized or unsolicited ideas or submissions, offers, advertising, promotional materials, surveys, “junk” or bulk mail, “spam,” chain letter,” “pyramid schemes,” investment opportunity, petitions, or other forms of solicitation;
• impersonates any person, firm or entity, including any of our employees, partners, licensors, licensees or suppliers;
• is misleading or false, or falsely implies an endorsement by us, our affiliates, employees, partners, licensors, licensees or suppliers;
• presents a significant risk to public safety or promotes the dangerous or unlawful use of ammunition, explosives, firearms, weapons or other similar materials;
• involves or helps promote unlawful gambling, sports betting, horse or greyhound racing, or any other similar activity;
• violates any code of conduct or other guidelines applicable to any other area of the Service;
• includes forged headers or data or creates accounts through unauthorized means (such as an automated bot, script, device spider, scraper or crawler); or
• manipulates identifiers or other data in order to disguise the origin of any Content or to manipulate or disguise your presence on the Service.
We have the right (but not the obligation) to pre-screen or monitor any Content or any user’s access to or use of the Service, and to remove or block access to (e.g., by way of settings) any Content for any reason, or suspend or terminate any user’s access to or use of the Service for any reason (including for violations of our “Be Nice Policy” or any other provision of these Terms). We have no responsibility or liability with respect to any Content, including for any actions that we may take with respect to any Content that we determine violates these Terms.
7. Special Service Terms (including Memberships and Subscriptions, if any). Special terms and conditions related to the Service (such as how others can use Your Content, how to contact us, terms regarding membership and subscriptions [if any]) can be found through the Special Service Terms link above.
8. Third Parties.
a. Content. The Service might display, contain, link to or make available Content from a variety of sources (including other users and other third parties) including images, models, posts, creations, opinions, recommendations, or advice and such Content may be incomplete or inaccurate, or offensive or objectionable to you. We are not responsible or liable for, and we don’t necessarily endorse, any Content. All Content, including Your Content, is the property of its copyright owner(s) or other rightsholder(s). Except as expressly provided in these Terms, use of the Service does not grant, waive, or limit any ownership rights of such owner(s) or rightsholder(s). You must comply with all applicable laws, rules and regulations in relation to your access to and use of the Service, including local laws regarding online conduct, acceptable Content and the exportation of Content from the jurisdiction where you reside.
b. Interactions With Other Users. The Service may provide you the ability to interact with other users or groups of users of the Service. Such interactions are solely between you and such other users, and we are not responsible or liable for such interactions or any consequences thereof.
c. Links and Advertisers. The Service may provide links to and from online, mobile and other platform sites and services (such as advertisers and E-Commerce Providers) that are not under our control. We are not responsible for such online sites or services, including any contents, products or services offered or made available through such sites or services, or any interactions you may have with third parties through such sites or services. Your use of any such sites or services is at your own risk, and is subject to the terms or conditions of such sites or services.
9. Buying and Selling Products or Services. If the Service allows for the purchase or sale of products or services, or otherwise makes available any products or services, the following provisions apply:
a. Placing an Order. By placing an order through our Service, you represent that you are authorized to purchase the products and services ordered, and that such products and services will be used only in a lawful manner. Additional terms and conditions may apply to purchases of products or services and to specific portions or features of the Service, including the E-Commerce Provider’s terms of sale (see Section 8.b. below) and promotional and limited-time offer terms.
c. Display of Products through the Service. Without limitation, we do not guarantee the accuracy of any attribute, specification, proportion or dimension of any drawings, models, products and images visible on or made available through the Service or that they will match or reflect those of any actual physical products (for example, the Service or your device may not accurately displaying the accurate color, product spec or size), and neither we nor any of Our Parties are responsible or liable for any such inaccuracies. Also, the inclusion of any products or services on the Service at a particular time does not imply or warrant that these products or services will be available at any time. Descriptions, images, references, features, Content, specifications, and prices of any products or services on the Service or obtained through the Service are subject to change with or without notice.
d. Limiting Quantities and Availability. We and all E-Commerce Providers reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase; and/or to refuse to provide any user with any product or service.
10. Consent and Collection and Use of Data.
c. Sensitive Personal Information. You acknowledge that any data storage functionality of the Service is not intended for the storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information, health insurance information, sensitive data about personal characteristics or other personal data that may pose a risk of harm to the individual if improperly disclosed (collectively, “Sensitive Personal Information”). You agree not to upload or otherwise submit any Sensitive Personal Information to us in connection with the Service. You agree that we have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the Service.
11. Storage Practices and Limits. There is limited storage space for Content on the Service. While we’ll make efforts we believe are reasonable to safeguard and back up Content, and to make Content available in case of loss or deletion, we have no responsibility or liability for the deletion or failure to store or the security of any Content, including Your Content. So be sure to back up Your Content! We reserve the right to mark or treat as “inactive” and archive accounts and/or Content that are inactive for an extended period of time, as determined by us for each Service. We reserve the right to change our practices and storage rules at any time in our sole discretion with or without notice to you.
12. Contests and Promotions. Sweepstakes, contests, promotions or similar opportunities may be made available through the Service (collectively, “Promotions”). By participating in any Promotion, you will become subject to specific rules governing the Promotion, which rules may vary from the terms and conditions set forth herein. To the extent that the rules of a particular Promotion conflict with these Terms, the terms and conditions of the Promotion’s rules will control.
13. Ownership and Rights in the Service.
a. Our Rights. As between you and us, we and our licensors own all right, title, and interest (including, without limitation, patents, copyrights, trademarks, trade secrets, and all other intellectual property rights) in and to the Service, the API Information, any technical requirements and end-user documentation for the Service made available to you by us (the “Documentation”), and any Content (excluding Your Content) provided by us (not other users) and used in connection with, or generated by, the Service (collectively “Our Materials”). You agree not to take any action to jeopardize, encumber, limit, or interfere in any manner with our or our licensors’ ownership and rights with respect thereto. We do not grant to you any right to use our trademarks, trade names, or logos. You have only the limited rights to use the Service as are expressly granted to you under these Terms and/or in any Special Service Terms (see the Special Service Terms link above if applicable) and no other rights are granted or conveyed, or will be deemed to be granted conveyed, whether by implication, estoppel, or otherwise. Your access is to a service. No license to our Software is granted by these Terms. For the terms and conditions applicable to the license of any Software, please refer to the relevant software license agreement, end user license agreement or license and services agreement attached or linked to such Software. In addition to the other rights granted by you hereunder, you grant to us a royalty-free, worldwide, irrevocable, perpetual license to use, publish, edit, translate, distribute, display and incorporate any ratings, comments, suggestions, feedback, improvement requests or other recommendations you provide relating to the Service and/or any Content (“Feedback”). You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (1) to maintain any Feedback in confidence; (2) to pay any compensation for any Feedback; or (3) to respond to any user Feedback. You grant us the right to use the name that you submit in connection with any Feedback.
b. Our APIs. Any API Information (unless otherwise specified by us in additional or different terms associated with such API Information): (1) are our confidential information and proprietary to us; (2) and may not be distributed, disclosed or otherwise provided to third parties. Notwithstanding the foregoing, if you develop any services, applications, modules and components in accordance with these Terms, nothing in these Terms will prohibit you from using such services, applications, modules and components with (and porting such applications, modules and components to) other software and hardware (including the software and hardware of third parties), if such services, applications, modules and components: (a) do not incorporate or embody any other Software or materials distributed or made available by us, directly or indirectly (other than the API Information that was used in the development thereof in accordance with these Terms) and (b) do not disclose the API Information. “API Information” means the standard applications programming interface (“API”) information generally provided by us to users of the Service that specifies the requirements for interfacing to (e.g., invoking or directing the functions of) the Service or Software included in such Service. API Information does not include any implementation of such interface information or any other Software.
14. Your Right to Access or Use the Service. In accessing or using the Service, you agree not to (or permit anyone else to) do or attempt any of the following:
• distribute, rent, loan, lease, sell, sublicense, or otherwise transfer or offer the Service for any commercial purpose;
• remove or alter, any copyright, trademark, confidentiality or other proprietary notices, designations, or marks;
• modify, translate, adapt, arrange, or create derivative works of the Service, except as permitted in these Terms;
• decompile, disassemble or reverse engineer, or determine any source code, algorithms, methods, or techniques of the Service;
• interfere with, damage, or disrupt the operation or any security-related features of the Service, gain unauthorized access, or restrict or inhibit use by others;
• use any robot, spider, or other system, device or mechanism to access the Service likely to disrupt or disable or destroy the Service or any Content;
• frame or mirror any part of the Service or create a competitive business to the Service;
• collect or store personal information about any person or entity in violation of these Terms;
• create a database by downloading and storing any Content;
• advertise, promote or solicit any goods or services for any commercial purpose except as expressly authorized by us or expressly permitted by these Terms;
• use the Service, any feature thereof or any Content in a way that could or does violate any law or the rights (including without limitation, the copyright, trademark, patent, trade secret other intellectual property, proprietary or other rights) of any person, firm or entity or expose us, any users or any of Our Parties to legal liability; or
• pose a security risk to the Service or to any other user.
We reserve the right to limit the availability of the Service, in whole or in part, to any person, for any purpose, and to any geographic area or jurisdiction we choose, at any time and in our sole discretion.
15. Indemnification. You will, at your sole expense and to the fullest extent permitted by law, indemnify, defend (at our request), and hold harmless us and our affiliates, agents and suppliers and each of their respective officers, directors and employees (individually and collectively, “Our Parties”) against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by Our Parties by reason of any claim, suit or proceeding (“Claim”) arising out of or in connection with: (1) Your Content or use of Your Content, including, without limitation, any assertion that Your Content or the use thereof may infringe any copyright, trademark, or other intellectual property or other rights of any individual or entity, or are a misappropriation or violation of any individual or entity’s trade secret or other rights, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials, or use thereof caused death or bodily injury or damage to the real or tangible property of any third party; (2) any breach of or failure by you to comply with these Terms or any Policies; (3) use of the Service by you (or anyone who accesses the Service through you); (4) your violation of any provision, representation or warranty of Section2; (5) the use of the Service by the learner ; (6) your failure to obtain sufficient parental or legal guardian consent; (7) your registration of the learner, or (8) any other action related to the learner.. If we request that you defend a Claim, You will not agree to any settlement without our prior written consent, and we will have the right to participate, at our own expense, in the defense of any Claim with counsel of our own choosing.
16. Warranties. By accessing or using the Service (including any part of the Service) you represent and warrant that either you are at least the legal age of consent in the jurisdiction where you reside or, if you’re not, that you are 13 years old or older and your parent or legal guardian has agreed to these Terms on your behalf and will supervise your access to and use of the Service. You also warrant, represent and agree that:(1) you have the requisite rights to submit, develop and use Your Content in connection with the Service; (2) Your Content does not infringe or misappropriate any intellectual property or proprietary right of any third party or violate any applicable laws, rules or regulations; (3) Your Content is not subject to any restriction on disclosure, transfer, download, export or re-export under any applicable law, rule or regulation; and (4) any information you provide in connection with your registration for, or use of, the Service is and will remain true, accurate, and complete, and that you will maintain and update such information regularly.
a. Warranty Disclaimer. THE SERVICE AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE.” OUR PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE SERVICE, CONTENT AND ANY THIRD PARTY PRODUCTS AND/OR SERVICES ON OR AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. YOUR USE OF THE SERVICE (IN WHOLE OR IN PART) AND ANY CONTENT IS AT YOUR OWN DISCRETION AND RISK. OUR PARTIES DO NOT WARRANT THAT ANY USE OF OR ACCESS TO THE SERVICE OR ANY CONTENT WILL BE ERROR-FREE, COMPLETE, SECURE OR THE CONTENT WILL NOT BE OTHERWISE LOST OR DAMAGED OR MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT OPERATION OR AVAILABILITY WILL BE UNINTERRUPTED; OR THAT ERRORS OR FAILURES WILL BE CORRECTED OR REMEDIED. OUR PARTIES DO NOT WARRANT THAT THE SERVICE OR ANY CONTENT WILL PERFORM IN ANY PARTICULAR MANNER. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND OUR PARTIES ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) (1) THE DECISIONS THAT YOU MAY MAKE REGARDING THE SERVICE; (2) USE OF THE SERVICE OR CONTENT INCLUDING WITHOUT LIMITATION ANY CONTENT (OR ANY REPRESENTATIONS, ADAPTATIONS OR TRANSLATIONS THEREOF), DATA, INFORMATION, OR OTHER MATERIAL ACCESSED BY YOU IN CONNECTION WITH THE SERVICE OR THROUGH YOUR ACCOUNT, COMPUTER SYSTEM OR MOBILE DEVICE OR ANY LOSS OF DATA; OR (3) ANY LOSS, DAMAGE OR OTHER EFFECTS ON YOU THAT MAY RESULT FROM USE OF THE SERVICE OR ANY CONTENT (OR ANY REPRESENTATIONS, ADAPTATIONS OR TRANSLATIONS THEREOF) OR THE FAILURE TO COMPLY WITH THESE TERMS. OUR PARTIES MAKE NO WARRANTIES TO ANY THIRD PARTY. We make no warranties or representations that the Service, or any part(s) thereof, OR ANY CONTENT (OR ANY REPRESENTATIONS, ADAPTATIONS OR TRANSLATIONS THEREOF) is/are ACCURATE OR COMPLETE OR IS/ARE appropriate or available for use in any particular jurisdiction. In choosing to access OR USE the Service OR ANY CONTENT, you do so at your own risk, and you are responsible for complying with all local laws, rules and regulations, including local rules regarding online conduct and acceptable content. This Section will be enforceable to the maximum extent allowed by applicable law. No information or advice (whether written, oral or otherwise) provided by Our Parties or their representatives will create any warranty or in any way affect the disclaimers of warranty or limitations of liability expressly provided in these Terms.
b. A Special Note About Fabrication and Handling of Physical Materials. PLEASE NOTE YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF ANY PRODUCTS, SERVICES, MATERIALS AND PROCESSES MADE AVAILABLE TO YOU BY OR THROUGH THE SERVICE. WITHOUT LIMITATION: (A) OUR DISCLAIMERS UNDER THESE TERMS AND UNDER ANY AND ALL POLICIES EXTEND TO ANY AND ALL PRODUCTS OR SERVICES OR ANY MATERIALS USED FOR ANY OUTPUTS OR FOR THE FABRICATION OF PHYSICAL MATERIALS, WHETHER OR NOT CREATED THROUGH OR BY USING THE SERVICE, OR ANY PROCESSES AND/OR PRODUCTS (INCLUDING FROM THIRD PARTIES) MADE AVAILABLE ON OR THROUGH THE SERVICE; (B) PRODUCTS, SERVICES OR MATERIALS USED IN THE MANUFACTURE OF ANY PHYSICAL MATERIALS BY OR THROUGH THE SERVICE MAY ONLY BE SUITABLE FOR DECORATIVE PURPOSES, MAY NOT BE SUITABLE FOR USE FOR PERSONS UNDER THE AGE OF 13 (E.G., MAY NOT BE SUITABLE AS CHILDREN’S TOYS OR PRODUCTS) AND MAY NOT BE SUITABLE FOR THE HANDLING OF CONSUMABLES SUCH AS FOOD OR DRINK. AMONG OTHER THINGS, SUCH UNSUITABLE PRODUCTS AND MATERIALS SHOULD NOT BE USED FOR CONSUMABLES OR TOYS, BE GIVEN TO CHILDREN OR COME IN CONTACT WITH ELECTRICITY, FOOD OR LIQUIDS AND SHOULD BE KEPT AWAY FROM HEAT.
c. Functionality Limitations. THE SERVICE (INCLUDING ANY SOFTWARE) IS NOT A SUBSTITUTE FOR YOUR OWN JUDGMENT OR INDEPENDENT PROFESSIONAL TESTING, DESIGN, ESTIMATION OR ANALYSIS, AS APPLICABLE. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICE, THE SERVICE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED AND MAY NOT ACHIEVE THE RESULTS YOU DESIRE. OUR PARTIES WILL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY RESULTS OR OUTPUT OBTAINED OR OTHERWISE VIEWED THROUGH THE SERVICE OR ANY MATERIALS DEVELOPED IN CONNECTION WITH THE SERVICE, INCLUDING ANY CONTENT. YOU ARE RESPONSIBLE FOR YOUR ACCESS AND USE OF THE SERVICE, WHICH INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE, CONTENT AND OTHER PROGRAMS TO ACHIEVE YOUR INTENDED RESULTS. YOU ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY, ACCURACY AND COMPLETENESS OF SERVICE RESULTS, OUTPUT OR MATERIALS USED AND/OR DEVELOPED BY YOU IN CONNECTION WITH THE SERVICE (IF ANY), INCLUDING ALL ITEMS VIEWED, DESIGNED AND/OR CREATED USING THE SERVICE, INCLUDING ANY CONTENT. THERE ARE NO SERVICE LEVEL AGREEMENTS MADE IN CONNECTION WITH THE SERVICE.
18. Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (1) IN NO EVENT WILL OUR PARTIES BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR ANY OTHER DAMAGES OF LIKE KIND WHATSOEVER (HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE), INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER COVER, OR ANY OTHER SIMILAR COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR WILL ANY OF THE FOREGOING PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE OR AN ACT OF A THIRD PARTY OR OF NO FAULT ON ITS BEHALF; AND (2) THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF OUR PARTIES FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS HOWEVER CAUSED OR ARISING FROM OR IN RELATION TO THE SERVICE WILL NOT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) ALL AMOUNTS PAID OR DUE FROM YOU, IF ANY, FOR ACCESS TO OR USE OF THE SERVICE GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM (NO MATTER WHEN PAYMENTS WERE ACTUALLY MADE).
19. Term, Termination and Suspension. These Terms will become effective on the date you first access or use the Service (“Effective Date”). The term of this contract (“Term”) will extend from the Effective Date until the first to occur of the following: (1) our termination of all of your rights hereunder; (2) our discontinuation of the Service or (3) the date you cease to use the Service by uninstalling all Software and discontinuing all use of the Service. Without limitation of anything in this paragraph, if any or all of the Service is accessed as part of a membership or subscription, your access to that portion of the Service will terminate when your membership or subscription terminates or expires. We reserve the right in our sole discretion, without prior notice, to terminate or suspend your access to all or part of the Service and/or your account (if applicable) or delete or remove Your Content for any reason, including, without limitation, breach or assignment of these Terms. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Service or deletion of Your Content. Upon any termination of these Terms for any reason, you must immediately cease accessing and using the Service. Sections 2 (Changes to the Service or these Terms) through 20 (Definitions) will survive termination of these Terms for any reason. It is your responsibility to retain copies of Your Content. Upon termination we will have the right to immediately deactivate your account(s) and suspend access to your Content and, may delete, without notice, Your Content, if any, and all backups thereof and Our Parties will not be liable for any loss or damage which may be incurred by you or any third parties as a result of such deletion. Paid Entitlement (e.g., membership, subscription) accounts that are terminated will not be refunded unless otherwise provided in the Special Service Terms for the Service. Notwithstanding anything to the contrary, no expiration or termination of this agreement will terminate or affect any licenses or sub-licenses granted by you in accordance with these Terms prior to such termination, including, without limitation to other users of the Service.
a. Governing Law and Jurisdiction. These Terms will be governed by and construed in accordance with the laws of (1) Belgium. The laws of such jurisdictions will govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act will not apply to (and are excluded from the laws governing) these Terms. In addition, you agree that any claim, action or dispute arising under or relating to these Terms will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the Court of Dendermonde, Belgium. Nothing in the foregoing will prevent us from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.
b. Export Control. You acknowledge and agree that your use of the Service is subject to compliance with European Union and other applicable country export control and trade sanctions laws, rules and regulations, including, without limitations the regulations promulgated by the European Union Export Control Regulation. You will be solely responsible for complying with the Export Control Laws and monitoring any modifications to them. You represent and warrant that (1) you are not a citizen of, or located within, a nation that is subject to EU trade sanctions or other significant trade restrictions ; (2) you are not identified on any EU government restricted party lists; (3) you will not, unless otherwise authorized under the Export Control Laws, use the Service in any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications; and (4) that no part of Your Content is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that you will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, Your Content or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which you may be subject.
c. General. The parties’ relationship to each other under these Terms is strictly that of independent contractors and nothing in these Terms will in any way constitute or be construed as evidence of intent to establish any association, partnership, joint venture or other relationship. Each party will be responsible for covering their respective costs and expenses in performing their duties under these Terms, unless expressly provided otherwise herein. If for any reason a court of competent jurisdiction finds any provision of these Terms, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of these Terms and the remainder of these Terms will continue in full force and effect. The section headings used in these Terms are for convenience only and will not be given any substantive effect. The English language version of these Terms is legally binding in case of any inconsistencies between the English version and any translations. Except as expressly provided herein, a party may only waive its rights under these Terms by a written document executed by both parties. Any failure to enforce any provision of these Terms will not constitute a waiver thereof or of any other provision hereof. You may not assign or delegate these Terms or any of your rights or obligations hereunder. Any unauthorized assignment will be null and void. You acknowledge and agree that we may assign or subcontract any of its rights or obligations under these Terms.
d. Communications. Specific contact information for certain inquiries and notices concerning the Service can be located by locating the applicable instructions in these Terms including, if applicable, clicking the link to the Special Service Terms (see the Special Service Terms link above).
e. Entire Agreement. These Terms (including, without limitation, the Policies) contain the entire agreement between you and us with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service. In the event of any conflict or inconsistency between any of the terms and conditions of these Terms and any third party software license agreement or service level agreement that contain a link to the Service, the terms and conditions of these Terms will control, except (1) that the Entitlements will control over these Terms with respect to your specific Entitlement; and (2) the Privacy Statement will control to the extent that it expressly overrides these Terms.
• “Content” means text, pictures, data, information, media, audio and video recordings, commentary, messages, opinions, recommendations, advice, information or other material used, provided, posted in or linked through or on the Service.
• “Entitlements” means your entitlements to use the Service (such as your membership and subscription rights, maximum capacity, transactions, output, hours or other measurements of use, term or duration and any other entitlements specific to such Service) as determined by the type or level of membership or subscription you subscribed to or licensed. “Entitlements” also include any other information about entitlements to access and use the Service which are set forth on the Service (including, without limitation, the description of the Service, Documentation and minimum technical requirements for the Service).
• “Educator” means Users (e.g. educational institutions, teachers, librarians and adult supervisors) who work with learners and through the Service.
• “Personal information” has the meaning set forth in the FabLab Factory Privacy Statement.
• “Policies” mean collectively the Entitlements, Documentation, the FabLab Factory Privacy Statement and all other terms incorporated into these Terms by reference.
• “Software” means any computer program or similar material, including any modules and components, functions and features of a computer program, made available by or for us for use as part of the Service (whether by download or as a hosted solution) including all technical documentation related thereto.
• “Special Service Terms” means those terms and conditions set forth in the document made available at the Special Service Terms link located above.
• “Learner” means an individual person who is at the time of the installation, use or access of the Service, enrolled or signed up with an Educator and upon request by FabLab Factory, able to provide proof of such enrollment or participation.
• “Learner Data” means any information maintained by FabLab Factory or any third party on FabLab Factory’s behalf relating to a learner (including any education records) that are disclosed by you to FabLab Factory, except that learner Data does not include a record that has had personally identifiable information removed such that the learner’s identity is not uniquely identifiable from the record and there is no reasonable basis to believe that the remaining information can be used to identify an individual.
• “Terms” means the terms and conditions of these Terms of Service, all Special Service Terms, and all Policies.
• “We,” “us” or “our” means FabLab Factory, Inc., a Belgian corporation.
• “Your Content” means, collectively, (1) the Content posted, provided, uploaded, submitted, shared, published, distributed, made available, accessible or usable by you on, to, from or through the Service (and any translations thereof); (2) your specific output generated from the Service, if any, based on your own raw data or information; and (3) any software application, plug-in and other computer program or similar material (including any modules and components, functions and features of a computer program) developed by you using the API Information. Expressly excluded from Your Content are any of Our Materials.