Terms & Conditions of Use
PLEASE READ THESE TERMS OF USE AND THE INCORPORATED DOCUMENTS CAREFULLY AND IN THEIR ENTIRETY BEFORE CONTINUING TO USE THE WEBSITE. BY ACCESSING AND CONTINUING TO USE THE WEBSITE AND RELATED SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF USE (AS MAY BE MODIFIED FROM TIME TO TIME) AS SET FORTH BELOW.
THESE TERMS AND CONDITIONS OF USE CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND FLIPSIDE PRODIGY INC. d/b/a FOUNDFOLIOS
AGREEMENT TO TERMS AND CONDITIONS OF USE
These terms and conditions of use ("Terms of Use") govern your access and use of the Flipside Prodigy Inc. d/b/a FoundFolios' ("FoundFolios") Website located at www.foundfolios.com (The "Website") and all services provided through or in connection with the Website. Additionally related documents that apply to Your access and use of this Website and/or services provided in connection therewith are expressly incorporated into these Terms of Use and may be directly accessed by clicking on the following links:
1. GENERAL TERMS
FoundFolios owns and operates the Website through which it advertises, markets, offers and provides certain information and services. Portions of the Website may be generally publicly available and may be accessed by any Internet user ("User"). Other restricted sections of the Website as well as certain functionality and certain subscription services ("Services") may only be available to Users who have subscribed for membership with FoundFolios and use their unique User name and Password to access or receive certain services through the Website ("Members" or "Subscribers"). These Terms of Use govern the terms and conditions under which "You" (as a Member, User or both) may access either the public or restricted portions of the Website and/or any subscription Services that You receive from FoundFolios in connection with Your membership.
2. OWNERSHIP OF WEBSITE AND ITS CONTENT
This Website is owned and operated by FoundFolios. All of the information and content featured or displayed on the Website, including but not limited to keywords, specialty tags, and the sequencing of galleries ("Content") is owned by or licensed to FoundFolios or its advertisers. FoundFolios reserves the right to amend, change, alter, enhance, remove, or cease to provide access to the Website or its content at any time, without prior notice to any User and/or to the extent not prohibited under Your membership subscription agreement.
3. TRADEMARKS
Flipside Prodigy Inc., owns any and all intellectual property rights arising out of, related to, or in any way connected with "FoundFolios," "foundfolios.com" and the FoundFolios or foundfolios.com logos ("FoundFolios Intellectual Property"). You cannot use the FoundFolios Intellectual Property without first obtaining FoundFolios' specific written permission. Nothing on the Website shall be construed as granting a license or right to use the FoundFolios Intellectual Property without its permission.
4. NEWSLETTERS AND PROMOTIONS
By providing FoundFolios with Your email and/or other contact information, You agree to receive all email newsletters, email promotions and direct mail promotions produced by FoundFolios and its affiliates. You may opt out of our email promotions and newsletter at any time by clicking the unsubscribe link located in our emails. You can also call directly and ask to be removed from any email or direct mail promotions or newsletters. Contact information for FoundFolios may be found by clicking here. In order to unsubscribe, You must properly select the unsubscribe links on both the newsletter and email promotions separately or contact FoundFolios directly to be removed. FoundFolios values Your privacy. Neither FoundFolios nor its affiliates will sell or rent Your contact information to any third-parties. To view FoundFolios' full Privacy Policy, click here.
5. FOUNDFOLIOS BLOG
The Website presently permits access and participation in the FoundFolios blog. The FoundFolios blog is a blog for and about professional visual artists. FoundFolios' editorial staff reserves the right to accept or deny any and all blog submissions. You agree that FoundFolios has the right to reject or remove blog submissions that do not, in the sole opinion of the editorial staff, reflect the content, style and professionalism FoundFolios seeks to represent. You also agree that FoundFolios' editorial staff has the right to evaluate and rank blog submissions as it deems appropriate. As a result of its editorial activities, some blog posts may achieve greater or lesser exposure. By submitting a blog post, You agree to the possibility of this outcome and to be bound by these Terms of Use. Notwithstanding the foregoing, You understand and agree that FoundFolios' role in connection with the blog is as an Internet Service Provider and that FoundFolios is not and will not be liable for any posted comment or response to a comment which is authored or submitted by anyone other than FoundFolios.
6. HARDWARE, SOFTWARE AND CONTENT
FoundFolios shall obtain and maintain the computer hardware and software necessary to perform its obligations under the Terms of Use. Such hardware and software shall not be dedicated hardware or software. Nothing in the Terms of Use grants you, as a User and/or Member, or any other person, any right, title or interest in or to FoundFolios' hardware, software or Content stored thereon. From time to time, the Website, its Content or functionality, may be unavailable due to essential updating, maintenance, updating of the Terms of Use, modification, investigative procedures, enhancements or any other reason. FoundFolios does not warrant that access to the Website, its Contents or functionality will be constant and always available or without interruption. FoundFolios will not be liable to You, as a User or Member, in the event of service or access interruptions.
7. THIRD-PARTY LINKS
The Website may contain links to third-party Websites. Such other Websites are not owned, operated or controlled by FoundFolios. You agree that FoundFolios is not responsible for the content or functionality contained on any such third-party Website and that You waive any and all claims against FoundFolios as to any loss incurred as the result of Your access or use of such third-party Website.
8. SUBSCRIPTION TERMS FOR MEMBERS
FoundFolios provides an online portfolio platform for paid Members to organize and display digital copies of their work and the work of artists that they represent through Member created online "galleries" that Users may view to assess their interest in Members' submissions, skill-sets and esthetics. The Website offers certain additional features, resources and Services to paid Members that may not be available to all Users. You must subscribe to FoundFolios in order to access those additional features, resources and receive such Services which may not otherwise available to Website Users.
a. Membership Subscription
FoundFolios may offer Members different subscription levels ("Subscription Levels"). Your unique characteristics, such as the size and content of Your portfolio, Your goals as a Member, etc., will determine which Subscription Level is appropriate for You. Each Subscription Level has its own subscription fee, set of features and restrictions as defined on the Website or other FoundFolios' material. You will have an opportunity to discuss Your Subscription Level with a FoundFolios' service representative when you become a Member of FoundFolios. FoundFolios reserves the right, at its sole discretion to add, delete and/or modify the functionality, features and restrictions of all Subscription Levels, so long as the utility of service is maintained. Some Services offered by FoundFolios are also governed by additional, specific terms set forth in the incorporated Agreement applicable to that Service ("Services Agreements"). You may access specific Services Agreement(s) applicable to Your Subscription by clicking on the link below.
In order to become a Member, in addition to agreeing to these Terms of Use, You must enter into and agree to be bound by the terms of Your Subscription Agreement and Invoice ("Subscription Agreement") with FoundFolios. A blank Subscription Agreement can be accessed by clicking here. These Terms of Use and as well as any documents referenced herein are expressly incorporated into and are made part of the Subscription Agreement.
b. Subscription Duration
Your Subscription for Membership to the Website and associated Services is for one year (12 months) unless otherwise noted in Your Subscription Agreement. ("Subscription Duration") Your Membership commences on the day that You a) agree to the Subscription Agreement; b) receive a copy of the Subscription Agreement; or c) pay the initial payment due for the Subscription, whichever is earliest. Your Membership ends upon expiration of its duration. You may not cancel Your Subscription under any circumstances. You will be required to make all payments due during the duration of the Subscription regardless of whether you choose to access the Website, submit Offered Content or make use of any Services offered in connection with the Website. After expiration of Your Subscription, You and FoundFolios may agree to extend or renew the Subscription Agreement under the Terms of Use and fees then in effect.
Upon expiration, non-renewal, or termination by FoundFolios of Your Subscription for whatever reason, some or all of Your Offered Content may no longer be accessed or available on the Website and FoundFolios may cease providing support and/or Services or may do so only on a reduced basis. Without waiver of any other right or interest FoundFolios may have, You agree that you will nevertheless be obligated to make full payment of all Subscription fees, which will become immediately due upon termination. The foregoing is without waiver of FoundFolios' right to seek any and all further and additional relief for Your breach whether available at equity or at law.
c. Member's Obligations
You agree that You will comply with Your obligations under these Terms of Use and any other Agreement with FoundFolios, including, but not limited to, Your obligation to make timely payment as set forth below and/or in Your Subscription Agreement with FoundFolios. If You do not comply with any obligation under these Terms of Use or other Agreement with FoundFolios (including non-renewal or non-payment under the Subscription Agreement), FoundFolios, in its sole discretion, may terminate Your access to the Website, remove Your Offered Content from the Website and/or may cease providing Services. If that occurs, You agree that you will nevertheless be obligated to make full payment of all Subscription fees, which will become immediately due upon termination. The foregoing is without waiver of FoundFolios' right to seek any and all further and additional relief for Your breach whether available at equity or at law.
You agree that You will conduct Yourself in compliance with any and all applicable U.S. Federal and State laws, rules and regulations that may apply, relate to or concern Your Membership, including, but not limited to, those concerning fax broadcasts, email transmissions, and direct marketing. You further agree to make yourself aware of and to fully comply with all non-United States laws that may be applicable to You, including those laws that are applicable to the jurisdiction to which You direct any email transmission, fax or direct marketing. For a further discussion of Your obligations, see"Member's Obligations in Compliance with Non-US Law" which may be accessed by clicking here.
d. Subscription Fees
In consideration of Your Membership in FoundFolios, You agree to pay the Subscription Fees set forth in the Subscription Agreement between You and FoundFolios, in full, for the Subscription Level that You select at the time that You subscribe to FoundFolios. Under certain circumstances, FoundFolios may permit Members to make periodic payments of the full Subscription Fee as set forth in the Subscription Agreement between You and FoundFolios, without affecting the duration of the Subscription or the total Subscription Fee payable by the Subscriber, in which case the Subscriber must 1) make an initial Subscription Fee payment; and 2) provide a credit card number and authorization for FoundFolios to automatically charge the Subscriber's card for each periodic payment without requiring further authority from the Subscriber. Payment, as set forth in Your Subscription Agreement with FoundFolios, must be made by You prior to Your access to and/or use of the Website, including publication of Your Offered Content on the Website or receipt of any Services in connection with and, if applicable, must continue to be made in a timely fashion throughout Your Subscription's Duration. You agree that You will not interfere with Your pre-authorized periodic charge to Your credit card during the Subscription's Duration or until the full Subscription Fee is paid.
Your Subscription Fee(s) may be subject to certain federal, state or local taxes which are not included and are in addition to Your Subscription Fee. In all circumstances, where FoundFolios is required by law to collect such taxes from You, it shall do so.
Subscription Fees are not refundable or cancelable under any circumstance. You agree that You will pay all Subscription Fees, and applicable taxes, regardless of whether You access or use the Website or Services available to you as a result of your Subscription or whether your Subscription is terminated by FoundFolios due to expiration or your breach of these Terms of Use and/or any other agreement between You and FoundFolios.
Any Subscription Fee or portion thereof that remains unpaid 30 days after it is due shall accrue interest at a rate of 1.5% per month (18% per annum) or the maximum rate allowed by law, if lower. If any portion of the Subscription Fee is not paid when due or if payment is dishonored by the financial institution to which the payment was presented, You agree that You shall immediately pay, in full, the entire outstanding balance due on Your Subscription and shall reimburse FoundFolios for any cost or fee associated with or resulting from Your non-payment. You authorize FoundFolios to charge Your account for any fee incurred due to a dishonored payment or the Subscriber's violation of the Terms of Use or other agreement between You and FoundFolios. Failure to pay upon request, or if payment is declined, shall result in immediate suspension of the Your User name and Password and termination of Your access to and/or use of the Website and associated Services, including but not limited to removal of Your Offered Content content from the Website. Failure to pay any outstanding balance may result in legal action against You or those that You have designated as having access to Your account, including, but not limited to, assignment of the account to a collections agency or pursuing other methods of collection.
The foregoing rights by FoundFolios are without waiver of any further rights that FoundFolios may have at equity or law.
9. INTRODUCTORY MEMBERSHIP
On occasion, FoundFolios may offer a free Introductory Membership to Users, which permit Users to receive limited access and services that are generally available to Members only. The scope or duration of an Introductory Membership and User's qualifications to receive an Introductory Membership are within the sole discretion of FoundFolios. As a condition of receiving an Introductory Membership You agree that You will be considered a "Member" and that you will comply with all Terms of Use applicable to Members during its duration.
10. OFFERED CONTENT
The Website allows for the submission of materials by Members and, in some circumstances, User, for online display ("Offered Content"). Offered Content may include digital copies of all images and visual or graphic materials that are owned by or licensed to the Member for display or distribution in any media, as well as any comment, blog, post or commentary of any description whatsoever that is submitted by a Member or a User for public dissemination on or through the Website or associated Services. You understand and agree that by submitting Your Offered Content, You are consenting to its public dissemination and that FoundFolios cannot and does not guaranty the confidentiality of such Offered Content, whether or not it is published on the Website.
As a condition of Your submission of Offered Content to FoundFolios, You hereby warrant, promise and agree that:
a) You own or have all necessary licenses, rights, consents, and permissions to use and to authorize FoundFolios to use the Offered Content, including, but not limited to, any necessary patent, trademark, trade secret, copyright or other intellectual property or other proprietary rights in the Offered Content;
b) You have the written consent, release, and/or permission of each and every identifiable individual person in the Offered Content to use and to authorize FoundFolios to use the name or likeness of each and every such identifiable individual person in the Offered Content;
c) By submitting the Offered Content to FoundFolios, You as Member or User, agree to be bound by all terms set forth in these Terms of Use or in any other agreement between You and FoundFolios;
d) You have the right to, and hereby, assign to FoundFolios a limited, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Offered Content in any media formats and through any media channels, solely for the purpose and to the extent necessary for FoundFolios to market and promote FoundFolios' Website and associated Services; and
e) You hereby agree to indemnify and hold harmless FoundFolios from any and all claims of whatever nature that may arise from, in connection with, or be related to, Your Offered Content, including, but not limited to, any claim that You made an impermissible use of the Offered Content, did not have the necessary licenses, permissions or releases for Your Offered Content or lacked the requisite authority to grant FoundFolios permission or license as to the Use of Your Offered Content as provided for above.
11. MEMBERSHIP TERMINATION
Your access to the Website, display of Your Offered Content and/or receipt of Services may be suspended or terminated at FoundFolios' sole discretion, upon any of the following occurrences:
- Your failure to pay Subscription fees that may be due under the Terms of Use or Your Subscription Agreement;
- Your Subscription for Membership has expired and has not been renewed;
- Suspicion by FoundFolios that You have used Your Membership in a manner that is illegal under U.S. law or any non-US law that FoundFolios has notice applies; and
- Your breach of any provision in this Terms of Use or Your Subscription Agreement with FoundFolios.
You agree that termination does not relieve You of Your obligation to pay all fees that are or may become due under Your agreements with FoundFolios. The foregoing is without prejudice to any other right that FoundFolios may have at law or equity.
12. FOUNDFOLIOS' GRANT OF LIMITED LICENSE
a. User License
Subject to the User's acceptance of, and compliance with this Terms of Use, FoundFolios hereby grants each User a non-exclusive, non-transferable license to access or view only those portions of the Website that are available for public access without requiring a paid Membership or Introductory Membership. FoundFolios reserves the right to amend, terminate or modify the User's License and/or access to the Website at any time with or without prior notice to the User.
b. Member License
Subject to Your acceptance of, and compliance with, the Terms of Use and Subscription Agreement, and/or online registration, FoundFolios hereby grants a non-exclusive, non-transferable limited license to each Member to access, view and use of the Website and/or Services available in connection therewith, only to the extent and as strictly limited to such access or Services provided for under the individual Member's Subscription.
c. Limitation on License
As a User and/or Member You may not, under any circumstances, do any of following:
- You may not use the name FoundFolios or Flipside Prodigy, Inc. for Your own or anyone else's promotional purposes;
- You may not include the name FoundFolios or Flipside Prodigy, Inc. in any promotional products unless such use is specifically pre-approved by FoundFolios, in writing;
- You may not participate in any activity deemed by FoundFolios, in its sole and exclusive determination, to be unacceptable or in violation of the terms of the Terms of Use or any other agreement with FoundFolios;
- You may not participate in any activity that may be construed as damaging, detrimental, or competitive to FoundFolios;
- You may not sell, assign, publish, distribute, hand out, allocate, issue, dispense, allow any other entity or person access to, or convey any part of Website, its content or another User's or Member's Offered Content without the express prior written consent of FoundFolios and/or the individual or entity that provided the Offered Content.
13. USER/MEMBER WARRANTIES
As a User and/or Member, You agree that You will not, under any circumstances, use the Website or any Services provided by FoundFolios in connection with the Website to do the following:
(i) You will not make available any material that is protected by another's copyright, trademark, trade secret, or other intellectual property right, or is otherwise subject to third-party proprietary, privacy or publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant FoundFolios all required license rights. See FoundFolios' Copyright and Intellectual Property Policy.
(ii) You will not make available any material that is false, misleading, harmful, abusive, tortious, vulgar, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially, sexually or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise inappropriate;
(iii) You will not cause harm, of any type, to minors ;
(iv) You will not submit materials or post links to advertisements or solicitations of business other than advertisements or solicitations of business reasonably necessary to use the Website for its Intended Purpose;
(v) You will not intentionally or unintentionally violate or aid others in the violation of any applicable local, state, national or international law or regulation;
(vi) You will not enable or assist in the transmission of "junk mail," "chain letters," "pyramid schemes," unsolicited mass mailings, instant messaging, "spimming," or "spamming" or any other form of improper or illegal solicitation now known or that may be developed in the future;
(vii) You will not "stalk" or otherwise harass another person or assist another in doing so;
(viii) You will not collect or store private or personally identifying information about others for unlawful or inappropriate purposes;
(ix) You will not misrepresent or assist others in misrepresenting the origin of any Content, Subscriber's Content or Offered Content on the Website or Services provided by FoundFolios;
(x) You will not impersonate any person or entity, including, but not limited to, FoundFolios' officials, employees, consultants, or otherwise misrepresent Your affiliation with any person or entity;
(xi) You will not make available any material that You are prohibited from disclosing as a result of Your contractual or fiduciary relationship with another individual or entity or as a matter of law or regulation;
(xii) You will not make available or distribute any materials, computer code or "malware" that facilitates hacking, or that is intended to interfere with or destroy the functionality of any Website, computer software, hardware or telecommunications equipment or to interfere with the performance or functionality of this Website or any other Website, including, but not limited to, software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information, any other form of improper or illegal malware now known or that may be developed in the future. See FoundFolios Security Policy.
(xiii) You will not download data from any FoundFolios' website, database or platform through automated means, including spiders, robots, crawlers or other automated means now known or that may be developed in the future;
(xiv) You will not harvest, modify, publish, transmit, transfer, sell, reproduce, create derivative works from, distribute, perform, link, display or in any way exploit any Content (including someone else's Offered Content);
(xv) You will not sell, distribute, or make any use of, commercial or otherwise, information, content or data obtained from any FoundFolios in a manner which could be expected to offend the person for whom it is relevant;
(xvi) You will not create and maintain a FoundFolios' user profile that contains hyperlinks to content not permitted on FoundFolios;
(xvii) You will not disrupt the normal flow of dialogue in a chat room, cause a screen to "scroll" faster than other users of the Website are able to type, or otherwise act in a manner that negatively affects other Users' ability to engage in real time exchanges;
(xviii) You will not interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;
(iv) You will not access the Website after Your access, membership and/or subscription has been terminated by FoundFolios for any reason; and
(xx) You will not make available any materials, or act in any manner that is offensive to the FoundFolios community or the spirit of these Terms of Use.
You acknowledge and agree that FoundFolios may, but is not required to, monitor Your conduct in connection with the Website and any Services provided by FoundFolios in regard thereto. You agree that FoundFolios may remove any materials submitted by You, including but not limited to Offered Content, restrict Your access to the Website and/or terminate Your Membership and any and all Subscription Agreements or other agreements between You and FoundFolios, if FoundFolios, in its sole discretion, determines that you have taken actions in violation of these Terms of Use and/or any other agreement between You and FoundFolios. You understand that in the event of termination for any cause You will not be entitled to a refund of the Subscription Fee, if any, and will be required to make all periodic payments that remain outstanding at the time of the termination. You understand and agree that FoundFolios may access, preserve and disclose your User name, Password and/or account information if FoundFolios determines that it is necessary to do so in order to comply with apparently valid legal proceedings, to process a good faith complaint by a third-party that You have violated these Terms of Use, or to protect the legal rights, property or personal safety of FoundFolios, its Users and Members and the public at large.
14. DISCLAIMERS AND LIMITATIONS OF WARRANTIES
FoundFolios does not imply or guarantee the success of any promotional tools or services provided on the FoundFolios website. FoundFolios does not endorse or warranty the Offered Content available on and/or accessed through the Website, or the quality of the services of any FoundFolios Member. FoundFolios does not offer or mediate the sale of any goods or services on behalf of or between any FoundFolios Members. FoundFolios does not act as an intermediate, agent, or broker between a Member and any individual who may wish to acquire that Member's Offered Content.
FoundFolios uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content of the Website, but it makes no representations or warranties as to the Content's accuracy, correctness or reliability and You may not rely on any statement, express or implied, to the contrary. FoundFolios will not knowingly promote or display inaccurate, incorrect, or unreliable Content. If FoundFolios is provided with actual knowledge that the Content contains incorrect or unreliable facts, FoundFolios will take reasonable steps to correct or remove same within a reasonable time after receiving actual notice of its inaccuracy.
THIS WEBSITE AND ITS CONTENT, AS WELL AS ANY AND ALL INFORMATION AND SERVICES ASSOCIATED THEREWITH ARE PROVIDED "AS IS." FOUNDFOLIOS EXCLUDES AND DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE. FOUNDFOLIOS IS NOT LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE WEBSITE, ITS CONTENTS AND/OR ANY DATA, INFORMATION OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBEDDED IN, OR THE MATERIALS AND CONDUCT AVAILABLE AT THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. THE USER AND/OR MEMBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO THE USER'S AND/OR MEMBER'S USE OF THIS WEBSITE OR RELATED SERVICES. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER FOUNDFOLIOS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS ARE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES) ARISING OUT OF USER'S AND/OR MEMBER'S USE OF, OR INABILITY TO USE, OR THE PERFORMANCE OF THIS WEBSITE, ITS CONTENT AND/OR SERVICES PROVIDED IN CONNECTION THEREWITH, WHETHER OR NOT FOUNDFOLIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. LIMITATION OF LIABILITY
FOUNDFOLIOS DOES NOT GUARANTEE RESULTS. IN NO EVENT SHALL FOUNDFOLIOS BE LIABLE FOR GENERAL, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES WITHOUT LIMITATION AS TO WHETHER SUCH DAMAGES ARE CONSIDERED TO BE DIRECT, GENERAL OR CONSEQUENTIAL DAMAGES. FOUNDFOLIOS SHALL NOT BE LIABLE, (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THESE TERMS OF USE OR OTHER AGREEMENT, EXCEPT TO THE EXTENT OF FOUNDFOLIOS' GROSS NEGLIGENCE OR WILLFUL CONDUCT. IT IS AGREED THAT SHOULD ANY LIABILITY ON THE PART OF FOUNDFOLIOS BE PROVEN, IT WILL NEVERTHELESS BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ANTICIPATE OR FIX THE AMOUNT OF DAMAGES THAT WERE PROXIMATELY CAUSED BY SUCH LIABILITY. THEREFORE IT IS AGREED THAT IN NO EVENT MAY THE USER OR MEMBER RECOVER AN AMOUNT IN EXCESS OF THE AGGREGATE OF FEES PAID TO FOUNDFOLIOS OR $500 IN THE EVENT THAT NO FEES WERE PAID, IN FULL AND COMPLETE SATISFACTION OF ANY AND ALL CLAIMS. IT IS AGREED THAT THE FOREGOING LIMITATION IS NOT INTENDED TO BE AND IS NOT A PENALTY.
16. INDEMNIFICATION
In addition, and notwithstanding any other action taken by FoundFolios under these Terms of Use, You hereby expressly and unqualifiedly agree (to the fullest extent permitted by law) to defend, indemnify and hold harmless, (including payment of FoundFolios' attorneys' fees, costs and expenses), FoundFolios and its owners, operators, directors, agents, affiliates, contractors, employees, licensors and other affiliates in connection with any allegation, claim, suit, litigation, action, choice or demand of any type, in any judicial or extra-judicial forum, arising out of, related to or in connection with (a) Your products or services or the content of Your Offered Content, including, without limitation, any claim alleging any violation of a third-party's intellectual property, proprietary or privacy rights; or (b) Your breach of any of Your obligations, duties, representations or warranties contained in these Terms of Use or any other agreement between You and FoundFolios ("Asserted Claims"). You agree that your obligations to indemnify, defend and hold harmless, are triggered upon a third-party's notice to You or FoundFolios of the Asserted Claim and shall continue through and including resolution, by any method, of the Asserted Claim against FoundFolios, regardless of whether it is ultimately determined that the Asserted Claim was with or without merit. FoundFolios shall promptly notify You, in writing, when it receives Notice of an Asserted Claim and shall accommodate Your reasonable requests for cooperation and information.
17. MISCELLANEOUS
a) Relationship of the Parties. You and FoundFolios are independent contractors. There is no partnership, agency or joint venture relationship between them.
b) Location of Negotiations and Services. You agree that the Website and any and all services provided by FoundFolios, as well as the negotiation and agreement of these Terms of Use and any other agreement between You and FoundFolios, shall be deemed to have occurred solely and exclusively within the State of New York, County of Suffolk.
c) Choice of Law. You hereby agree that these Terms of Use and any other agreement between You and FoundFolios shall exclusively and solely be governed and interpreted under and in accord with the laws of the State of New York, (except to the extent that New York choice of law principles would require application of any other law) regardless of where You, any of FoundFolios' representatives or agents, or FoundFolios' servers may be located.
d) Jurisdiction and Forum. You hereby agree that any dispute that arises under, is connected to or relates in any manner to, these Terms of Use, the Website, Services provided by FoundFolios, or any other agreement between You and FoundFolios shall be subject to the sole and exclusive jurisdiction of the United States District Court for the Eastern District of New York or, in the event that jurisdiction is not available in the federal court, then in the Supreme Court of the State of New York, County of Suffolk, only. You hereby consent to the exercise of personal jurisdiction over You by the New York courts as to any such dispute.
e) Force Majeure. If You or FoundFolios are unavoidably delayed or prevented from the performance of any obligation under these Terms of Use or other agreement between FoundFolios and You through no fault of their own, as a result of acts or conditions outside their control which render such performance impossible, including without limitations, to Acts of God, insurrection, war, national, state or local emergencies, labor disputes, adverse weather (such as storms, rain, hurricanes, blizzards, etc.), failure of utility services, restrictive governmental law or regulations, police intervention or other additional or similar causes beyond their control, their performance of such obligation shall be excused only for such period of delay. Notwithstanding the foregoing, You agree that all fees and payments shall not be excused or delayed and shall continue to be made by You as due and owing under these Terms of Use or any other agreement between You and FoundFolios during the period that any other performance is impossible.
f) Specific Performance. You acknowledge that a breach of these Terms of Use or other agreement between You and FoundFolios will cause irreparable injury and that money damages may be inadequate to remedy the injury to FoundFolios. Therefore, in the event of a breach or threatened breach, FoundFolios will be entitled to equitable relief, including injunctive relief and specific performance, without the posting of a bond or other security, and without proof of actual damages.
g) No Third-Party Rights. Nothing in these Terms of Use creates any right in any person not a party to the Terms of Use, and the Terms of Use shall not be construed in any respect to be a contract in whole or in part for the benefit of any third person.
h) Complete Agreement. These Terms of Use, any applicable Subscription Agreement, and any documents expressly referenced therein, together constitute the full agreement between You and FoundFolios as to the matters contained therein. In the event of a conflict between these Terms of Use and any Subscription Agreement, the specific terms of the Subscription Agreement shall apply. The Terms of Use and/or Subscription Agreement may not be amended, changed or supplemented unless in writing and agreed to by You and FoundFolios. All prior and contemporaneous negotiations and agreements between You and FoundFolios are expressly merged into and superseded by the Terms of Use and any Subscription Agreement and may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. You warrant that You have not relied upon any statement, representation, warranty, or agreement, except for those expressly contained in the Terms of Use or applicable Subscription Agreement.
i) Updates and Amendments. FoundFolios reserves the right to modify, update, add, delete, revise and change these Terms of Use at any time. Such changes are effective, and You agree to be bound by such changes, when You "click" the Accept button on the <foundfolios.com> Website, or 30 days from the date the changes are posted to the Website, whichever occurs sooner.
j) Severability of Provisions. If any provision of the Terms of Use, Subscription Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect to the extent that performance of the remaining terms is not rendered impossible.
k) Waiver. Failure to exercise, or any delay in exercising, any right or remedy provided under this or any agreement between You and FoundFolios or by law shall not constitute a waiver of that or any other right remedy, nor shall it preclude or restrict any further exercise of that right or any other remedy in the future against You or any other individual or entity.
l) Notices. Notices by FoundFolios to You may be given by means of electronic messages through the Website, by a general posting on the Website, or by conventional email at the email address You provided in Your user account. It is Your responsibility to ensure that FoundFolios continues to have up-to-date contact information for You. Notices by You to FoundFolios may be given by electronic messages, conventional mail, telephone or fax, unless otherwise specified in these Terms of Use or any other agreement between You and FoundFolios. FoundFolios' contact information may be found by clicking here.
m) Binding Provisions. These Terms of Use and any Subscription Agreement are binding and inure to the benefit of the parties and their respective heirs, executors, administrators, personal and legal representatives, affiliates, successors, and permitted assigns.
n) Assignment. You agree that You may not assign Your rights or obligations under the Terms of Use or any agreement between You and FoundFolios without the prior, written consent of FoundFolios.
o) Headings. The descriptive headings of the sections and subsections of the Terms of Use are for convenience only and do not affect the interpretation or construction of the Terms of Use.
Version 3
Eff. Date January 29th, 2015