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DESIGNER PROFILE AGREEMENT 1. DESIGNER PROFILE PRODUCT AND SERVICES HomePortfolio Inc. ("HomePortfolio") will host a designer profile in accordance with HomePortfolio's current design and functionality specifications (which may change from time to time) upon receipt of the necessary materials from you (HomePortfolio retains the right to reject any material submissions from persons who are not properly qualified or materials which do not meet HomePortfolio's editorial requirements) and payment in the amount stated ($295 for 1- year subscription or $500 for 2-year subscription). Production of the designer profile is completed by you using your password protected access to HomePortfolio's self-posting tool which allows you to provide and update the text and images needed for your designer profile (text and images must meet HomePortfolio's size, formatting and other requirements). This license does not grant you any rights in any other intellectual property of HomePortfolio, including without limitation the technology, software and hardware infrastructure and functionality provided by the HomePortfolio site. 2. LICENSE You hereby grant to HomePortfolio, a nonexclusive right and license to (i) reproduce, transmit, communicate, display or distribute the materials provided by you to HomePortfolio ("Materials") in digital form of display on the HomePortfolio and affiliated websites and (ii) link from your profile to related products and pages on the HomePortfolio and affiliated websites, by means of any technology, whether now known or hereafter to become known. All Materials remain your exclusive property. Any use by HomePortfolio of Materials, as permitted hereunder, will include appropriate attribution and a link or other reference to your designer profile. 3. TERM The term of this agreement will begin when it is accepted by you. If you purchased a one-year subscription, the term will end thirteen (13) months after such acceptance. If you purchased a two-year subscription, the term will end twenty-five (25) months after such acceptance. This allows 30 days for production. If this agreement is a renewal of a prior agreement, the term of this agreement shall be for a period of twelve (12) months commencing on the day after the last day of the previous term. 4. DISCLAIMER THIS SITE IS 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. HOMEPORTFOLIO WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, 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. 5. MODIFICATION OF SERVICES HomePortfolio may modify or discontinue the HomePortfolio web site or any product or service offered on the site without notice and without liability to you or any third party (except for the return of a pro rata share of marketing fees paid). HomePortfolio assumes no responsibility for the deletion of or failure to store Material or designer profiles. HomePortfolio reserves the right, without notice, to refuse service, terminate accounts, delete profiles, portfolios, and/or cancel orders in its discretion if it believes that customer conduct violates applicable law or is harmful to the interest of HomePortfolio or its affiliates. 6. LIMITATION OF LIABILITY The sole 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 not exceed payments made to HomePortfolio within the preceding twelve months under this agreement. 7. 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. 9. 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 the Materials, the violation of this agreement by you, or the infringement by you of any intellectual property or other right of any person or entity. 10. ENTIRE AGREEMENT This agreement constitutes the entire understanding between the parties as to the subject matter hereof, and supersedes all prior agreements and understandings. Any legally unenforceable provision of these Terms of Use will, at the election of HomePortfolio, be deleted or modified to correct the defect, and the remainder of the terms of these Terms of Use will remain valid and enforceable.
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