Portal-branded devices (“Portals”) may be used for personal and non-commercial purposes, and for commercial, business, and other non-personal purposes (referred to herein as “commercial use”). These Portal Commercial Terms (“Portal Commercial Terms”) cover commercial use of a Portal, and such commercial use is governed by the Facebook Terms of Service (located at facebook.com/terms/), the Supplemental Portal Terms of Service (“Portal Terms” located at portal.facebook.com/legal/terms-of-service/), and these Portal Commercial Terms, which collectively form an agreement between you and Facebook, Inc. (“Facebook” or “we” or “us” or “our”). References to “you” or “your” herein mean you personally and the company, corporation, organization, business, partnership, sole proprietorship, or other entity (each herein referred to as an “entity”) on behalf of which, or for the benefit of, you are using a Portal. Commercial use is also governed by our Supplemental Portal Data Policy (located at portal.facebook.com/legal/data-policy/), which supplements the Facebook Data Policy (located at facebook.com/policy), and together those policies explain how we collect, use, and share information when you use a Portal. The term “Facebook Products” as used in our terms and policies includes Portals.
Certain Facebook Company Products that are not Facebook Products are also available for use on the Portal, and your use of them is subject to the relevant terms and conditions for those Facebook Company Products (including relevant data policies). In addition, certain Third-Party Services (as defined in the Portal Terms) are available on the Portal, and your use of those services may be subject to the terms, conditions and policies governing those Third Party Services, which may include limitations or prohibitions on commercial use of such services (see the Portal Terms for further details).
If you are an individual engaged in any commercial use of a Portal, you represent and warrant that you are not doing so as an individual consumer. Further, as an individual engaged in any commercial use of a Portal, you represent and warrant that you have the legal authority to bind to these Portal Commercial Terms, the Portal Terms, and the Facebook Terms of Service any entity on behalf of which, or for whose benefit, you are using a Portal.
These Portal Commercial Terms apply to any commercial use of a Portal, regardless of whether the Portal is purchased by an individual user or by an entity that makes the device available for use by an individual user, and regardless of whether the Portal is used solely for commercial use or for a combination of commercial and personal uses.
Before making a Portal available for commercial use by others, you must notify them that their data will be subject to the applicable data policies referenced above. You acknowledge that Facebook is not obligated to provide or make available any information related to an individual user’s personal accounts to an entity associated with the user.
You are responsible for ensuring that the privacy settings for use of a Portal are satisfactory to you and to each individual user of the Portal.
To the fullest extent permitted by applicable law, (i) Portals are provided “as is” for commercial use and we make no representations or warranties about commercial use of Portals; (ii) we make no representations or guarantees that a Portal always will be safe, secure, or error-free, or that it will function without disruptions, delays or imperfections; (iii) we expressly disclaim any liability for any commercial use, whether on a Portal dedicated solely to commercial use or on a Portal used both for commercial and personal uses; and (iv) we also DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We do not control or direct what third parties do or say, and we are not responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, unlawful, and other objectionable content).
Our liability shall be limited to the fullest extent permitted by applicable law, and, subject to this limitation, under no circumstance will we be liable to you for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Portal Commercial Terms, the Portal Terms or the Facebook Products (including the Portal), even if we have been advised of the possibility of such damages. Our aggregate liability arising out of or relating to these Portal Commercial Terms, the Portal Terms or the Facebook Products will not exceed the greater of $100 or the amount you have paid us in connection with the Portal device in the past twelve months. THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION MAY NOT APPLY TO YOU.
We do not warrant that a Portal can be commercially used in any specific regulated field or sector (for example, the government, healthcare, financial services, or educational fields), or is suitable or designed for use for any particular commercial use, field or sector, or security environment. It is your responsibility to determine whether a Portal can be used in compliance with applicable laws and regulations in relation to any particular commercial use or regulated field or sector, as well as any applicable privacy and data protection laws. You agree not to use a Portal for any commercial use that, under applicable law, would impose additional legal requirements on us or otherwise expose us to any liability relating to any third party.
THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS THAT YOU MUST READ BEFORE USING A PORTAL, WHICH ARE AVAILABLE AT PORTAL.FACEBOOK.COM/LEGAL/SAFETY/.
WARNING: FAILURE TO FOLLOW THIS HEALTH AND SAFETY INFORMATION MAY RESULT IN DAMAGE TO A PORTAL, ACCESSORIES OR ANY CONNECTED DEVICES, AND MAY INCREASE THE RISK OF PERSONAL INJURY, DISCOMFORT OR OTHER POTENTIAL HAZARDS. BY USING THE PORTAL, YOU REPRESENT AND WARRANT THAT YOU HAVE REVIEWED THESE WARNINGS AND INSTRUCTIONS (AND WILL REVIEW ANY UPDATES THERETO), AND WILL ACT IN ACCORDANCE WITH SUCH WARNINGS AND INSTRUCTIONS.
Portals are covered by a Limited Warranty (located at portal.facebook.com/warranty/) offered by Facebook Technologies, LLC. Nothing in these Portal Commercial Terms or the Portal Terms between you and Facebook is intended to either abridge or expand the scope of that Limited Warranty.
You agree to defend (at our request), indemnify and hold harmless Facebook and its affiliates from and against any claims, liabilities, damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising out of or in any way connected with (a) any actual or alleged breach of the Facebook Terms of Service (as supplemented by these Portal Commercial Terms and the Portal Terms) by you or by any third party to whom you have made available Portal access or use, (b) any use of the Portal in violation of applicable law, or any distribution, transfer, or export of the Portal, by you and any other user of the Portal, (c) any content you provide, upload, or transmit via Facebook Products, and (d) any access to or use of the Portal by any third party to whom you have made available Portal access or use. In the event that you provide Facebook’s defense to such a claim, you agree that Facebook (x) shall be consulted regarding, and shall have the right to approve (at our sole discretion), defense strategy, any appeal, and any settlement of the claim, (y) shall have the right to select defense counsel, and (z) may further participate in the defense of the claim with counsel of our own choice at our own expense.
Certain commercial uses may involve activities that pose a high risk of causing death, bodily injury, or damage to property, including but not limited to use in connection with hospital or medical care services, emergency response or notification systems, other critical services or systems requiring high availability or reliability, and similar activities (collectively, “High Risk Use”). Portal was not designed for High Risk Uses or any activities requiring fail-safe performance. To the fullest extent permitted by applicable law, we disclaim any responsibility for any High Risk Use of a Portal, and disclaim any express or implied warranty of fitness of a Portal for a High Risk Use.
You agree to arbitrate any claim, cause of action, or dispute between you and Facebook that arises out of or relates to these Portal Commercial Terms or your commercial use of the Portal or related services (“Commercial Claim”). This provision does not cover any commercial claims relating to violations of your or our intellectual property rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, violations of the Brand Usage Guidelines, violations of your or our confidential information or trade secrets, or efforts to interfere with the Portal or engage with the Portal in unauthorized ways (for example, automated ways). If a Commercial Claim between you and Facebook is not subject to arbitration, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.
We and you agree that, by entering into this arbitration provision, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. You may bring a Commercial Claim only on your own behalf and cannot seek relief that would affect other parties. If there is a final judicial determination that any particular Commercial Claim (or a request for particular relief) cannot be arbitrated according to the limitations of this Section then only that Commercial Claim (or only that request for relief) may be brought in court. All other Commercial Claims (or requests for relief) will remain subject to this Section. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of this arbitration provision or the interpretation of the prohibition of class and representative actions. If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing. This notice of dispute to us must be sent to the following address: Facebook, Inc. 1601 Willow Rd. Menlo Park, CA 94025. The arbitration will be governed by the AAA’s Commercial Arbitration Rules (“AAA Rules”), as modified by these Commercial Terms, and will be administered by the AAA. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. The arbitrator will not be bound by rulings in other arbitrations in which you are not a party. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules, except that we will pay for your filing, administrative, and arbitrator fees if your Commercial Claim for damages does not exceed USD $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you do not wish to be bound by this provision (including its waiver of class and representative claims), you must notify us as set forth below within 30 days of the first acceptance date of any version of these Commercial Terms containing an arbitration provision. Such notice to us must be submitted to the address here: Facebook, Inc., 1601 Willow Rd. Menlo Park, CA 94025. All Commercial Claims between us, whether subject to arbitration or not, will be governed by California law, excluding California’s conflict of laws rules, except to the extent that California law is contrary to or preempted by U.S. federal law.
The Facebook Products, including Portals, all related software, technical data, and documentation, are “Commercially available off-the-shelf (COTS) items” as defined in Section 2.101 of Title 48 of the US Code of Federal Regulations. We provide the Facebook Products for public sector end use, including US Government end use, with the same rights as all other end users pursuant to these Portal Commercial Terms and the Portal Terms. If a public sector entity, including a U.S. Government entity, has a need for any additional rights, it must negotiate directly with us to determine if the parties can negotiate an acceptable amendment to these Portal Commercial Terms and the Portal Terms that must be included in any applicable contract or agreement.
With respect to your commercial use of the Portal, if there is a conflict between, on the one hand, these Portal Commercial Terms and, on the other hand, the Portal Terms or the Facebook Terms of Service, these Portal Commercial Terms shall govern to the extent of the conflict.
These Portal Commercial Terms are effective until terminated and will terminate when the Portal Terms between you and us are terminated. Upon such termination, the provisions in Sections 5-13 of these Commercial Terms will remain in place and survive termination.
These Portal Commercial Terms do not confer any third-party beneficiary rights. All of our rights and obligations under these Portal Commercial Terms are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
These Portal Commercial Terms, the Portal Terms, and the Facebook Terms of Service (and any agreements incorporated by reference therein), make up the entire agreement between you and Facebook regarding your commercial use of the Portal, and supersede any prior agreements between you and us regarding such use.
Date of Last Revision: January 8, 2021
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