|Terms of Service Agreement
Qfolio.com takes pride in offering superior, personal web portfolio services for architects, artisans, artists and designers. The 'Terms of Service' described herein constitute The Agreement ("Agreement") between You ("You") and Qfolio.com ("Qfolio", "Us", "We"), a sole proprietorship operated in the state of New Jersey, United States. This Agreement governs your purchase and use of all services (Collectively, the "Services", "Your Qfolio", "Website") sold to or provided to You by Qfolio.com.
You must register and accept the terms of this Agreement in order to use the Services. BY CLICKING ON THE "I AGREE" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT [SECTIONS 1 THROUGH 16.9] AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. Qfolio.com may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the Qfolio.com website. Qfolio.com may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following Qfolio.com's posting of any modifications constitutes your acceptance of the modifications. IF YOU DO NOT AGREE TO THIS AGREEMENT'S TERMS DO NOT CLICK THE "I AGREE" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY QFOLIO.COM OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED HEREIN.
3.1 DESCRIPTION OF SERVICES
Qfolio.com has developed a website template comprised of computer code which enables display of your visual portfolio content on the Internet. You submit the image and text content specific to your portfolio to Us. Qfolio.com then converts your data to make it compatible with viewing on the Internet. Your text will be converted to HTML format and your images will be cropped, color adjusted and encoded as JPEG files. You supply your content and we insert it into our template and make it accessible to viewers over the Internet as a fully functioning Website. All fees which you pay Qfolio.com are for the conversion of your content only. You are not buying a fully functioning website. Your Qfolio Site Subscription Payment licenses to you, on a term basis, for your use only, the computer code for the Qfolio.com website template which when combined with your content forms a functioning Website. Fees for Services are subject to change at any time and are posted on the applicable area(s) of the Qfolio.com website (http://www.Qfolio.com)
3.2. CHANGES IN SERVICES AND FEATURES
Qfolio.com may at any time change, add, enhance, reduce or remove services or aspects of the Services. As Web Browser Technology changes and advances some features may become obsolete and new features may become possible.
To access some of the services provided by Qfolio.com it is necessary for you to register and will require a username and password. You agree that all information which you provide to Qfolio.com for your registration ("Registration Data") are complete and true. You also agree to maintain and update your Registration Data. Qfolio.com reserves the right to terminate your account if your Registration Data is or becomes false or misleading in any way. It is your responsibility to keep your username and password secure. You must notify Qfolio.com immediately if you suspect that password security has been compromised.
5. GLOBAL AND INTERNATIONAL COMMERCE ACT STATEMENT.
This Agreement is in compliance with Title 15, Chapter 96, Subchapter 1 of the US Code - ELECTRONIC RECORDS AND SIGNATURES IN COMMERCE. You are hereby notified of the following. Clicking on the "I AGREE" button below has the same legal force and effect as your physical signature. You may choose, in Lieu of clicking on the "I AGREE" button, to conduct business with Qfolio.com by means of a paper contract. You must notify Qfolio.com of such choice prior to your initial payment to Qfolio.com by signed written notice sent by certified mail to Qfolio.com, 41 Watchung Plaza, Montclair, NJ 07042. You agree to a service charge of $20 (twenty dollars U.S.) for processing of a physical paper agreement. The hardware and software required to view and agree to this online Agreement are as follows: A functioning computer with the ability to view a web page using one of the following web browsers: Microsoft Internet Explorer version 3.0 or later, Netscape Navigator (or Communicator) version 3.0 or later or America Online version 4 or later.
6. CHARGES AND WORK FLOW
We will send you a Quote by email for the initial build of Your Qfolio. Although prices may change at any time, the Quote will guarantee your pricing for 90 days from the date of the Quote.
6.2 REGISTRATION AND SET UP FEE
To begin the process of building your Qfolio, you must first register. A set up fee of $100 (USD) is due at the time of registration and is not refundable.
Once you have submitted materials for inclusion in your Qfolio, we will send you an invoice by email. Upon payment, your Qfolio will be completed. After completion, your approval, and initiation of Your Qfolio Site Subscription, your Qfolio will launch and become live on the Internet.
6.4 QFOLIO SITE SUBSCRIPTION
6.5 UPDATING YOUR QFOLIO
You may place orders for updating or adding content to Your Qfolio from the personalized Qfolio Order Center. You will be invoiced by email for the changes or updates. Once Payment is made Your Qfolio will be updated. There is a minimum charge of $35 USD anytime your Qfolio is updated EXCEPT for contact information.
6.6 CORRECTIONS POLICY
WE DO NOT PROOFREAD YOUR SUBMITTED MATERIALS. You are solely responsible for the accuracy of any materials you submit to Qfolio.com. Correction of later discovered errors in the materials you have provided to Qfolio.com will incur update fees. Please only submit materials which have been completely proofread for accuracy. We will correct free of charge any errors We have made in Your Qfolio.
6.7 ACCEPTED PAYMENT METHODS.
For all initial build and update fees, you may pay by check, money order, credit card, or wire transfer (service charges apply). A Qfolio Site Subscription on a monthly basis must be by credit card via an automatic reoccurring monthly charge or maybe prepaid on a annual or biannual basis by check, money order or wire transfer. Please note, payments must 'clear' before work begins on Your Qfolio.
Once fees are paid, there are no refunds except as outlined in section 7. 'CANCELLATION'
6.9 BANDWIDTH AND USAGE LIMITS
For Services, you will not exceed the bandwidth limit of 4 gigabytes per month. This is roughly equivalent to an average webpage (60k) being accessed 17,000 times. If you use any bandwidth in excess 4 gigabytes limit per month Qfolio.com may, in its sole discretion, negotiate additional charges with you, suspend the Service, or terminate this Agreement. If Qfolio.com elects to take any corrective action, Qfolio.com will not refund any unused pre-paid fees. Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in bandwidth, storage and/or E-mail usage exceeding the stated limits.
6.10 FILE SIZE LIMIT
Each Qfolio is limited to 300MB (megabytes) in aggregate server space. Multimedia (video or sound files but NOT still images) filespace is limited to 10MB. Additional space may be purchased at the rate of $3 per month per 10MB.
6.11 SATISFACTORY PROGRESS
Please make reasonable progress and timely attempts to submit the materials required to complete the initial build or subsequent update of your site. If progress is not being made on your part, Qfolio will invoice you for work already performed and resume building or updating your site upon payment of said invoice and submission of remaining materials from you.
6.12 DISCOUNTED RATES
You may be offered time sensitive discounts and reduced rates. Discounts will only be applied to accounts which at the time of payment are in good standing and not past due.
7.1 ACCOUNT CANCELLATION
You may cancel your account at any time and for any cause by providing 30 days written notice (sent by postal mail or email). If you cancel your account fees paid will not be refunded. Your account may be canceled by Qfolio.com at any time if you violate any terms of section 10. 'Code of Conduct' of this agreement, or upon court order, or if your account is more than 30 days past due. Upon such cancellation, fees paid will not be refunded. Qfolio.com may also cancel your account if you have not provided all of your content required to complete Your Qfolio within six months of your initial registration. Upon such cancellation, only fees for work which has not yet been begun by Qfolio.com will be refunded. Upon cancellation any charges incurred for services rendered becomes immediately due. After any cancellation, the computer files containing your CONVERTED CONTENT ONLY (if such files exist) will be sent to you upon your request. Such files will NOT constitute a working website as is described in section 11. 'Intellectual Property Rights' of this agreement.
7.2 ACCOUNT CANCELLATION AND YOUR DOMAIN NAME
If Qfolio.com maintains and has registered your domain for you on your behalf, upon account cancellation you will be responsible directly for all further maintenance and renewal (including payment of registration fees to registrar) of the domain name.
7.3 SUBSCRIPTION CANCELLATION
If you opt for automatic monthly subscription payments, your credit card will automatically be debited each month. If the automatic payment fails on 2 successive attempts your Qfolio Site Subscription will be cancelled. If your Site Subscription is Annual and your payment is more than 30 days past due, your Site Subscription will be cancelled. Accounts with cancelled Site Subscriptions are subject to a $20 service fee.
7.4 ACCOUNT SUSPENSION
You may voluntarily suspend your account and your access to Services provided your account is in good standing and all past fees owed to Qfolio.com by you are paid. Suspension is at the sole discretion of Qfolio.com. Suspension of your account means Qfolio.com will remove your content from the internet and our servers. Your site will be archived for easy reinstallation and easy relaunch of your site in the future. During the period of suspension Qfolio.com will continue to maintain, renew and manage your Domain Name if it was obtained through Qfolio.com. Suspension requires advance payment of $60 per year Suspension Service Fee. The reactivation and relaunch of suspended accounts and sites is free. Sites must be relaunched within suspension period.
8.1 REACTIVATING CANCELED ACCOUNTS
Reactivation of a canceled account is solely at the discretion of Qfolio.com. Accounts reactivated within 90 days of cancellation may be reactivated upon full payment for all outstanding balances and fees due Qfolio.com. Accounts reactivated after 90 days of cancellation are subject to a $60 Account Reactivation Fee. After 180 days (six months) your files may be deleted from the Qfolio.com servers, not archived, and re-activation may no longer be possible.
8.2 REACTIVATING CANCELED SUBSCRIPTIONS
Cancelled subscriptions will be reactivated upon full payment of all outstanding balances and fees due Qfolio.com
9. DOMAIN NAME (WEB ADDRESS)
At your option and with an additional charge of $3 per month Qfolio.com will register one domain name you select if the domain name is available for registration and does not violate any ICANN or Network Solutions' or other registration services' policies, or any law or regulation. Qfolio.com will not refund any fees you paid with respect to the registration of a domain name you are unable to use. The domain name registered on your behalf is always owned by you and not Qfolio.com. As long as you maintain your Qfolio Site Subscription, Qfolio.com will pay any and all registration fees and renewals to the registrar on your behalf. Upon cancellation of Your Qfolio.com account, control of your domain name registration will be turned over to you and additional renewals of your registration will be your sole responsibility.
10. CODE OF CONDUCT
10.1 Your use of the Services is subject to and will comply with this agreement, all applicable law, regulations and community standards.
10.2 Services, as outlined in this agreement, are for your own use only. You agree not to resell or transfer your right to use Services to any other 3rd party.
10.3 You agree not to use Services for 'spam', junk mail, chain letters, multilevel marketing, or mass solicitations.
10.4 You agree not to use Services to distribute or attempt to distribute any material that (a) is unlawful, defamatory, harassing, tortious, libelous, abusive, threatening, profane, harmful, vulgar, obscene, sexually explicit, pornographic, depicts any person under the age of 18 in a sexual or provocative way, advocates violence to any person, organization or government, advocates for the overthrow of any government or is in any other way objectionable; (b) infringes the rights of a third party; (c) contains a virus or other harmful code that may disrupt the Website or any other user's equipment or software.
10.5 You shall not use offensive language or engage in personal attacks on any persons or employees of Qfolio.com.
10.6 You shall not use Services to promote any business which competes with Qfolio.com.
10.7 You shall not use Services to promote, facilitate, plan or engage in any illegal or fraudulent activity.
10.8 You shall not use Services to promote, facilitate, plan or engage in any gambling or gaming activity.
10.9 You shall not use Services to gain or attempt to gain unauthorized access to any website or other computer system.
10.10 You shall not use Services to directly sell goods or services but only for promotional purposes.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 WHAT YOU OWN
For any and all payments made to Qfolio.com, your ownership is solely limited to your original content and the converted form of your content to a format compatible with viewing on the Internet. This converted content does not constitute or function as a stand-alone website, but will only function when combined with our proprietary computer code when leased to you on a term basis via the Qfolio Site Subscription. You also own any Domain Name registered in your behalf by Qfolio.com
11.2 WHAT YOU DO NOT OWN.
Qfolio.com retains all ownership of the computer code, interface design, graphic design, look-and-feel, website navigation elements, styling, interface graphics, buttons, framesets, and other intellectual property related to the appearance and operation of the Your Qfolio website. Qfolio.com retains ownership of all trademarks and servicemarks related to Qfolio.com. Your Qfolio website will function only so long as you pay the Qfolio Site Subscription in advance and your account has not been canceled. If you or Qfolio.com cancels your Qfolio Site Subscription, only your converted content will be returned to you in the form of HTML code. This code will not function as a working website.
11.3 YOUR LICENSE GRANT TO QFOLIO.COM.
You grant to Qfolio.com a non-exclusive, worldwide, and royalty free license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement, or to be included in online demonstrations, help-files, how-to descriptions or for any material which promotes traffic to Your Qfolio. You expressly: (a) grant to Qfolio.com a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
11.4 YOUR ADDITIONAL LICENSE GRANT TO QFOLIO.COM
You grant to Qfolio.com a non-exclusive, worldwide, and royalty free license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of promotion of Qfolio.com. We may use your name, identify you as a Qfolio.com client, and display all or portions of Your Qfolio website in advertising, publicity, or similar materials distributed, transmitted or displayed to Qfolio.com's prospective or current clients. YOU MAY OPT OUT OF THIS CLAUSE ONLY (11.4) UPON SIGNED WRITTEN NOTICE SENT BY CERTIFIED MAIL TO: QFOLIO.COM, 41 WATCHUNG PLAZA, MONTCLAIR, NJ 07042. NOTICE MUST BE POSTMARKED WITHIN 60 DAYS OF YOUR INITIAL PAYMENT TO QFOLIO.COM. IF YOU DO NOT OPT OUT, THIS CLAUSE WILL REMAIN IN FULL FORCE AND EFFECT AND SURVIVE FOR ONE YEAR AFTER CANCELLATION OF THIS AGREEMENT.
11.5 YOUR WARRANTIES AND REPRESENTATIONS TO QFOLIO.COM.
You warrant, represent, and covenant to Qfolio.com that: (a) you are at least 18 years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
11.6 QFOLIO.COM MATERIALS AND INTELLECTUAL PROPERTY.
All materials, including any computer software (in object code and source code form), data or information that Qfolio.com or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes Qfolio.com uses to provide the Services to you, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain Qfolio.com's or its suppliers' sole and exclusive property. Qfolio.com will also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that Qfolio.com may be assign to you. Qfolio.com may, in its sole discretion, change or remove any and all IP numbers and addresses.
11.7 COPYRIGHT DISPUTES
Qfolio.com's Copyright dispute policy may be found at http://www.Qfolio.com/sales/copyright_dispute.shtml and is incorporated here by reference.
12.1 INVESTIGATION OF VIOLATIONS.
Qfolio.com may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. Qfolio.com will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
Qfolio.com may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If Qfolio.com becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, Qfolio.com may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Qfolio.com's systems, and (d) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Qfolio.com that, in Qfolio.com's sole discretion, may violate or infringe any law or third party rights or that otherwise exposes or potentially exposes Qfolio.com to civil or criminal liability or public ridicule. It is Qfolio.com's policy to terminate repeat infringers. These rights of action, however, do not obligate Qfolio.com to monitor or exert editorial control over the information made available for distribution via the Services. If Qfolio.com takes corrective action because of a possible violation, Qfolio.com will not refund to you any fees you paid in advance of the corrective action.
12.3 DISCLOSURE RIGHTS.
To comply with applicable laws and lawful governmental requests, to protect Qfolio.com's systems and customers, or to ensure the integrity and operation of Qfolio.com's business and systems, Qfolio.com may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Qfolio.com's servers and systems. Qfolio.com may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of Qfolio.com's On-line Privacy Statement and Qfolio.com's right to disclose under this section, Qfolio.com's right to disclose under this section will control.
13. DISCLAIMED WARRANTIES
Qfolio.com exercises no control over, and accepts no responsibility for, the content of the information passing through Qfolio.com's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, QFOLIO.COM DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
14. LIMITATION AND EXCLUSION OF LIABILITY
YOU AGREE THAT IN NO EVENT WILL QFOLIO.COM OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER QFOLIO.COM NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO QFOLIO.COM'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF QFOLIO.COM HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF QFOLIO.COM AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO QFOLIO.COM UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, LOSS OR DAMAGE TO YOUR ORIGINAL ARTWORK, PHOTOS, SLIDES OR OTHER MATERIALS, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY QFOLIO.COM UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE QFOLIO.COM AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.
14.2 LOSS OF ORIGINAL ARTWORK
WE WILL SAFEGUARD AND HANDLE YOUR ORIGINAL ARTWORK OR OTHER MATERIALS WITH THE UTMOST CARE, HOWEVER, WE ARE NOT RESPONSIBLE FOR THEIR LOSS OR DAMAGE. ANY ORIGINAL ARTWORK, SLIDES, PHOTOGRAPHS OR OTHER MATERIALS YOU SEND TO QFOLIO.COM ARE SENT AT YOUR OWN RISK. IF YOU ARE CONCERNED ABOUT THE SAFETY OF YOUR MATERIALS YOU SHOULD ONLY SUBMIT COPIES AND NOT THE ORIGINAL WORKS. ONCE YOUR QFOLIO IS COMPLETE, OR UPON CANCELLATION OF THIS AGREEMENT, OR UPON YOUR REQUEST, ALL OF THE ORIGINAL MATERIALS YOU HAVE SUBMITTED WILL BE RETURNED TO YOU VIA UPS GROUND SHIPPING (OR EQUIVALENT), WITH DELIVERY NOTIFICATION AND WITHOUT INSURANCE AT YOUR EXPENSE. UPON YOUR PRIOR REQUEST AND ALSO AT YOUR EXPENSE OTHER SHIPPING ARRANGEMENTS AND INSURANCE CAN BE ARRANGED.
14.3 INTERRUPTION OF SERVICE.
Qfolio.com and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, Qfolio.com is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third party supplier failure).
14.4 SEARCH ENGINE LISTING / PLACEMENT
Qfolio.com will submit your site to search engines as described in your Quote. Because search engines use criteria known only to them for determining which sites to list and what their ranking will be, Qfolio.com cannot guarantee that your portfolio will appear in any given search engine or what the ranking might be.
14.5 NOT A BACKUP SERVICE.
Qfolio.com and Your Qfolio are not designed or intended as a file backup system. Although great care is taken to preserve and insure your content, you should preserve your original copies of all of the materials you submit.
14.6 LIABILITY LIMITED TO EXTENT ALLOWED BY LAW
Some Jurisdictions do not allow the Limitation or exclusion of liability for incidental or consequential damages as describe in this agreement; in those jurisdictions you agree to limit our liability to the maximum extent allowed by law.
15. INDEMNIFICATION You release and hold harmless, and agree to indemnify, Qfolio.com and its affiliates and suppliers (and their respective employees, directors and representatives, proprietors, CO-proprietors and assigns) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by Qfolio.com or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or nonproprietary right of a third party (including defamation, libel, violation of privacy or publicity).
16. MISCELLANEOUS PROVISIONS
16.1 ENTIRE AGREEMENT.
This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and Qfolio.com with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.
16.2 NO FIDUCIARY RELATIONSHIP; NO THIRD-PARTY BENEFICIARIES.
Qfolio.com is not the agent, fiduciary, trustee or other representative of You. Except for the rights of Qfolio.com's suppliers under sections 13 and 14, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.
16.3 CHOICE OF LAW AND FORUM.
THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN ESSEX COUNTY, NEW JERSEY, UNITED STATES OF AMERICA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS.
16.4 COMPLIANCE WITH LAWS.
You will comply with all applicable laws and regulations and will indemnify and save Qfolio.com harmless from your failure to so comply. Qfolio.com will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.
You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without Qfolio.com's prior written consent. Qfolio.com may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement is binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
16.6 NO WAIVER.
Qfolio.com's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of Qfolio.com's right to subsequently enforce the provision or any other provisions of this Agreement.
If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.
Revised: February 7, 2007.