Terms of Use

ONLINE SHOWROOM AGREEMENT

This HomePortfolio ONLINE SHOWROOM AGREEMENT shall govern the relationship between HomePortfolio Inc., located at 288 Walnut Street, Newton, Massachusetts 02460 ("HomePortfolio") and you as a manufacturer, retailer or designer (referred to in this Agreement as "You" or "Company") concerning your products and services and HomePortfolio products, production and hosting services. This Agreement and the HomePortfolio Contract Form, hereby incorporated hereto by reference, constitute the entire agreement between You and HomePortfolio ("Agreement").

1. ONLINE SHOWROOM PRODUCT AND SERVICES

HomePortfolio will support the production of and host an "Online Showroom" in accordance with HomePortfolio's current design and functionality specifications (which may change from time to time) upon receipt of the necessary materials and payment. Payment also entitles You to Online Showroom updates during the term of this Agreement. An Update shall mean refinements, solutions, changes and corrections to the Online Showroom as are required, at the discretion of HomePortfolio, to keep the Online Showroom in substantial conformance with the applicable design and functionality specifications at the time this Agreement is first executed and that are created by HomePortfolio as corrections for defects in the Online Showroom. Updates shall not include any new versions, new releases, options or future products that HomePortfolio licenses separately. You ("Company") may also (but are not required to) engage HomePortfolio's professional services department if You would like assistance creating web-ready images. You may also but are not required to engage HomePortfolio's department at its then current professional services rates. Additional services from HomePortfolio's professional services department after production of the initial images, including any requested changes to the images produced, will be performed on a time and materials basis.

2. PAYMENT FOR PRODUCTS AND MARKETING SERVICES

Payment for all products and services shall be governed by this Agreement. Professional Services and/or hosting of the Online Showroom tool will not commence until payment is received.

3. LICENSE

You hereby grant to HomePortfolio, a nonexclusive, perpetual, non-revocable, world-wide and royalty-free right and license to (i) use, reproduce, transmit, communicate, promote, market, display and distribute the content, images and materials provided by You to HomePortfolio ("Materials") in digital form of display on the HomePortfolio and affiliated websites (websites powered in whole or in part by HomePortfolio technology and/or content) and (ii) link from your Online Showroom and display your Materials among related products and pages on the HomePortfolio and affiliated websites to allow others to have use and access to your Materials, by means of any technology, whether now known or hereafter to become known HomePortfolio shall have the right to prepare modifications and derivatives to your Materials for the purposes set forth in this Agreement. All Materials remain your exclusive property.

Nothing herein shall grant Company any rights in any Intellectual Property, source code, object code, text, graphics, photos, images, database technology, e-commerce technology, server technology, operating systems, business logic, development tools, user information, URL's, software, hardware, audiovisual display, look and feel, templates, arrangement and organization of web pages, or other content or data of HomePortfolio or its licensors, including without limitation the technology, software and hardware infrastructure and functionality provided by the HomePortfolio site or otherwise used to operate or provide the Services, all of which shall remain the sole and exclusive property of HomePortfolio and its licensors.

4. TERM AND TERMINATION

The term of this Agreement shall be for thirteen (13) months ("Initial Term") from the date of this Agreement and shall be automatically extended for successive periods of one (1) year ("Renewal Term") unless this Agreement has been terminated in accordance with the following, or unless either party notifies the other in writing of its election to have the Agreement expire at least thirty (30) days in advance of any such Renewal Term. You may terminate this Agreement at any time by providing fifteen (15) days written notice of termination to HomePortfolio prior to the end of the Initial Term ("Termination Date"). In such event, HomePortfolio will reimburse You for any payments made in advance for any period beyond the Termination Date.

5. MATERIALS AND PRODUCTION REVIEW

Materials are due immediately after execution of this Agreement. HomePortfolio retains the right to reject any material submissions from entities that are not properly qualified or materials that do not meet HomePortfolio's editorial requirements. Late submission of all or part of your materials does not extend the term of this Agreement and will result in a loss of time in which your Online Showroom, based on the missing materials, is posted on the site. Company will have five (5) business days after receipt ("Review Period") to review and approve proofs of Online Showrooms. Any changes requested to Online Showrooms after Company approval will be subject to HomePortfolio's current production fee schedule. If Company does not object to the proofs within the Review Period, the proofs shall be deemed approved by Company.

6. MODIFICATION AND LIMITATION OF SERVICES

HomePortfolio may modify or discontinue the HomePortfolio web site or any product or service offered on the site at any time, without notice and without liability to You or any third party (except for the return of a pro rata share of fees paid in the event a product or service is discontinued). HomePortfolio assumes no responsibility for the deletion of or failure to store materials or Online Showrooms. HomePortfolio reserves the right, without notice, to refuse service, terminate accounts, add, delete or modify products, product descriptions, profiles, portfolios, associations (e.g., which manufacturers are associated with which retailers) and other content, and/or cancel orders in its sole discretion. Products available for display on Company's Online Showroom may be limited by HomePortfolio's contractual relationships with the product's manufacturer, Company's contractual relationships with product's manufacturer, the physical location or other demographic or characteristic of the user visiting the Company's Online Showroom or otherwise as determined in the sole discretion of HomePortfolio and/or the product manufacturer. A product may not be available for display on Company's Online Showroom even though Company is otherwise authorized to display or sell the product at the Company's physical showroom location.

7. SYSTEM INTEGRITY

You may not use any device, software or routine, including but not limited to any viruses, trojan horses, worms, time bombs, other malicious code or repeated "hacks" or "attacks" on web server(s), intended to damage or interfere with the proper working of any HomePortfolio Web Site or to surreptitiously intercept or expropriate any system, data or personal information from any HomePortfolio Web Site. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique.

8. REPRESENTATIONS, WARRANTIES AND COVENANTS

Each party represents and warrants to the other party that (i) such party has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) the execution of this Agreement by such party, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which such party is bound; (iii) this Agreement, when executed and delivered, will constitute the legal, valid and binding obligation of such party in accordance with the terms of this Agreement; (iv) such party will not knowingly use the rights granted to it for any unlawful purpose; and (v) such party will not use any personally identifiable information provided by any user or any third party in a manner which violates applicable international law, U.S. federal or state law, or any legal right of the user regarding the use and/or disclosure of their personally identifiable information.

Company represents and warrants that all Materials and information supplied by Company to HomePortfolio are complete and accurate and do not violate or infringe upon the copyright, literary, privacy, publicity, trademark, service mark, trade secret, confidentiality, proprietary or intellectual property rights or any other personal, moral or property right of any third party, nor do the same constitute a libel or defamation of any third party. The Company shall comply with all applicable laws, statutes, ordinances, rules and regulations of each country and state where applicable and HomePortfolio's published privacy policy as amended from time to time.

Each party represents, warrants and covenants to the other party that such party has and will have all Intellectual Property Rights necessary for the grant of rights herein and the performance of this Agreement, and that it knows of no right held by any third party adverse to the grant of licenses set forth herein. For purposes of this Agreement, Intellectual Property means ideas, concepts, improvements (whether patentable or otherwise), Confidential Information, trade secrets, patents, copyrights, derivatives, compilations, collective works, compilations, trademarks, service marks, trade dress, show-how, know-how and similar rights of any type under the laws of any governmental authority, including without limitation, all applications and registrations relating to the foregoing.

Each party will notify the other party promptly (i) of any inquiry from any foreign or domestic federal, state or regulatory authority regarding this Agreement, or the relationship between HomePortfolio and the Company, (ii) in the event any of the warranties and representations are no longer true; or (iii) of any material or threatened litigation against such party in connection with this Agreement or any materials licensed hereunder.

9. FORCE MAJEURE

If the performance of this Agreement, or any obligation hereunder, except the making of payments, is prevented, restricted, or interfered with by reason of any act or condition beyond the reasonable control of the affected party, the party so affected will be excused from performance to the extent of such prevention, restriction, or interference.

10. DISCLAIMER

THIS SITE AND THE PRODUCTS AND SERVICES OFFERED HEREUNDER ARE PROVIDED BY HOMEPORTFOLIO ON AN "AS IS", "AS AVAILABLE" BASIS. HOMEPORTFOLIO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, AND SUCH EXCLUSIONS MAY THEREFORE NOT APPLY TO YOU.

11. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT STATED IN THE NEXT SENTENCE, HOMEPORTFOLIO WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, DIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER HOMEPORTFOLIO HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY OF COMPANY AND MAXIMUM LIABILITY OF HOMEPORTFOLIO AND ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE HOMEPORTFOLIO AND AFFILIATED WEB SITES SHALL BE A PRO RATA REFUND OF FEES PAID.

12. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles. The sole jurisdiction and venue for any litigation arising out of your use of or orders placed on the HomePortfolio web site shall be an appropriate federal or state court located in Suffolk County, Massachusetts.

13. INDEMNIFICATION

You agree to indemnify and hold harmless each of HomePortfolio Inc., its parents, subsidiaries, affiliates, officers and employees, from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of any conduct by You, the materials provided by You, a breach of your representations or warranties, the violation of this Agreement by You, or the infringement by You of any intellectual property or other right of any person or entity.

14. CONFIDENTIAL INFORMATION

"Confidential Information" means that information which either party desires to protect against disclosure or unauthorized use and which is designated as confidential in writing, at the time of disclosure or promptly following oral disclosure, or which by its context is understood to be confidential. HomePortfolio and Company will hold in confidence any Confidential Information received from the other party and will protect it with at least the same degree of care that would be exercised with respect to the receiving party's own information of like importance, but in no event less than reasonable care, for a period of five (5) years from the termination of this Agreement.

15. RELATIONSHIP OF THE PARTIES

Nothing in this Agreement will be construed to place HomePortfolio and Company in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise. HomePortfolio will have the right to include Company in its customer list on the HomePortfolio Site and in HomePortfolio's press releases and promotional materials.

16. PRIVACY

Company agrees to abide by HomePortfolio's published privacy policy, as amended from time to time. All data and information collected or derived from the operation of the HomePortfolio site or other sites powered by HomePortfolio or disclosed by or pertaining to users thereof will be the sole and exclusive property of HomePortfolio.

17. EDITORIAL CONTROL

HomePortfolio shall retain at all times sole and exclusive editorial control over the HomePortfolio Site, the Materials, products displayed in the HomePortfolio database and descriptions of products. HomePortfolio may from time to time change its user interface design, navigation schema and other aspects of how the HomePortfolio Site will be used based on usability testing, best design practices and changing standards within HomePortfolio.

18. ENTIRE AGREEMENT

This Agreement and the HomePortfolio Contract Form referenced herein and incorporated by reference, constitutes the entire agreement and understanding between the parties as to the subject matter hereof, and supersedes any and all prior agreements and understandings. In the event that any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision may be deleted or modified at the election of HomePortfolio, and the remainder of the terms will remain valid and enforceable.