published on January 20, 2021
1 Acceptance of Terms 1.1. Fondfolio Inc. (“Fondfolio”, “Company” or “we”) provides its Service (as defined below) to you through its web site, platform located at https://my.fondfolio.com (the “Site”), and its products the physical collaborative gift books (the “Product”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
1.2. Fondfolio may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the Site. You can review the most current version of this TOS at any time [at https://fondfolio.com/terms]. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services and send a cancellation email to [email protected]
1.3. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Product, the Site, use of the Site, or access to the Site without the express written permission by Fondfolio.
1.4. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Fondfolio or Fondfolio trademarks and/or variations and misspellings thereof.
1.5. You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
1.6. We reserve the right to refuse service to anyone for any reason at any time.
1.7. Verbal or written abuse of any kind (including threats of abuse or retribution) of any Fondfolio user, Fondfolio employee, member, or officer will result in immediate Account termination.
2 Description of Service The “Service” includes (a) the marketing Site, (b) Fondfolio’s platform for creating and managing collaborative gift books, hosting and sharing of Fondfolios and data], (c) the physical collaborative gift books that are designed, created and produced using data collected on our platform, and (d) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS. For a more detailed description of our Service offerings, please see our product pages at https://fondfolio.com.
2.1. Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
2.2. Fondfolio does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
2.3. Fondfolio does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
2.4. Fondfolio does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
3 General Conditions / Access and Use of the Service 3.1. Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Fondfolio. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Fondfolio provides you or publishes in connection with the Service, and you shall promptly notify Fondfolio if you learn of a security breach related to the Service. Without limiting the foregoing, you acknowledge that Fondfolio may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data, code or other content will be retained by the Service and the maximum storage space that will be allotted on Fondfolio’s servers on your behalf. You agree that Fondfolio has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Fondfolio reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Fondfolio reserves the right to change these general practices and limits at any time, in its sole discretion.
3.2. Any software, APIs, tools or the like that may be made available by Fondfolio in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Fondfolio hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Fondfolio for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Fondfolio or any third party is granted to you in connection with the Service.
3.3. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Fondfolio reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, you hereby do and shall grant Fondfolio a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content only in connection with its provision of the Service. Important Note: if you are a user of our OSS tier any software Content that you upload to the Service will be automatically publicly available in source code form to the general public. If you do not want to make such source code publicly available, you must subscribe to our premium tiers. Fondfolio has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Fondfolio may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3.4. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Fondfolio’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Fondfolio will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.5. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Fondfolio’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.6. The failure of Fondfolio to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Fondfolio, even though it is electronic and is not physically signed by you and Fondfolio, and it governs your use of the Service.
3.7. [Fondfolio reserves the right to use your name and/or Fondfolio name as a reference for marketing or promotional purposes on Fondfolio’s website and in other communication with existing or potential Fondfolio customers. To decline Fondfolio this right you need to email [email protected] stating that you do not wish to be used as a reference.
3.8. Subject to the terms hereof, Fondfolio may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
3.9 Prices for using the Services are subject to change.
4 Payment To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Fondfolio information regarding your credit card or other payment instrument. You represent and warrant to Fondfolio that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Fondfolio the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize Fondfolio to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Fondfolio know within sixty (60) days after the date that Fondfolio invoices you. We reserve the right to change Fondfolio’s prices. If Fondfolio does change prices, Fondfolio will provide notice of the change on the Site or in email to you, at Fondfolio’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Fondfolio may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Fondfolio thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Fondfolio’s net income.
5 Representations and Warranties You represent and warrant to Fondfolio that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Fondfolio to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Fondfolio’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
6 Termination You have the right to terminate your account at any time by sending a cancellation request to [email protected]. Subject to earlier termination as provided below, Fondfolio may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Fondfolio may also terminate this TOS upon ten (10) days’ notice (or two (2) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. Fondfolio reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by Fondfolio upon any termination of your account in its sole discretion. If Fondfolio terminates your account without cause and you have signed up for a fee-bearing service, Fondfolio will refund the pro-rated, unearned portion of any amount that you have prepaid to Fondfolio for such Service. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.
7 Disclaimer of Warranties The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Fondfolio or by third-party providers, or because of other causes beyond our reasonable control, but Fondfolio shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND FONDFOLIO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT FONDFOLIO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM FONDFOLIO OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8 Limitation of Liability 8.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FONDFOLIO BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
8.2 Some states and provinces do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, FONDFOLIO’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9 Indemnification You shall defend, indemnify, and hold harmless Fondfolio from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Fondfolio shall provide notice to you of any such claim, suit or demand. Fondfolio reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Fondfolio’s defense of such matter.
10 Assignment You may not assign this TOS without the prior written consent of Fondfolio, but Fondfolio may assign or transfer this TOS, in whole or in part, without restriction.
11 Miscellaneous If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Fondfolio in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12 Governing Law; Disputes; Arbitration This TOS shall be The Terms of Service shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
13 Privacy Please visit https://fondfolio.com/privacy to understand how Fondfolio collects and uses personal information.
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