Last Revised: December 12, 2019
Interlude US Inc. and its affiliates, d/b/a Eko, ("Eko", "we", "our", or the "Company") welcome you (the "User(s)", or "you") to our websites at www.eko.com/, https://kidhq.com/ and https://company.eko.com/ (and their subdomains) (the "Sites"), to our mobile application (the "App"), to our videos players which are embedded on third party sites and services ("Embedded Video Player") and to our Eko Studio which allows its users to create and share their own interactive Videos (the "Eko Studio") (collectively, the "Service(s)" as further detailed below). Each of our Users may use the Services in accordance with the terms and conditions hereunder.
1. Acceptance of the Terms
The Services are available only to individuals who (a) are at least thirteen (13) years old (or sixteen (16) if you are located in the European Union); and (b) possess the legal capacity to enter into these Terms and to form a binding agreement under any applicable law. You hereby represent that you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Sites in accordance with these Terms, and to fully perform your obligations hereunder.
2. The Services
These Terms govern the following services provided by Eko:
(1) Users may use our Sites and/or App, which contain a library of videos and allows user to view and interact with our interactive videos uploaded by other Users, as well as our sponsors, marketing partners, and affiliates (the "Video(s)") and share such Videos with third parties at their discretion.
Please note that Users may also use the Sites and App to send third parties (such as friends and family) unique Videos which are comprised of the User's specific interactions with existing Videos on the Sites (the "Unique Video(s)").
Videos, together with any other materials uploaded to the Services by our Users (but excluding Unique Videos) shall be referred to hereinafter as the "User Generated Content" (as further detailed below);
(3) Our Users who wish to create and upload Videos to our library, may sign-up and use our Eko Studio available at www.eko.com/ (the "Eko Studio").
The Sites, the App and the Services may provide you with comprehensive information regarding, inter alia, the Company's Services, concept, Company overview, partners, resources library, news regarding the Company, as well as any other content related thereto such as contact information, videos, text, files, logos, button icons, images, data compilations, links, other specialized content, technical data, documentation, know-how, specifications materials, designs, data, the "look and feel" of the Services, algorithms, source and object code, interface, GUI, interactive features related graphics, illustrations, drawings, animations, and other features obtained from or through the Services (collectively, the "Content").
(Collectively: the "Service(s)")
ALL RIGHTS IN AND TO THE CONTENT AVAILABLE ON THE SERVICES ARE RESERVED TO EKO OR ITS LICENSORS. TO THE EXTENT LEGALLY PERMISSIBLE, THE SITES, THE APP, THE SERVICES THE CONTENT AVAILABLE THEREIN AND THE USER GENERATED CONTENT ARE PROVIDED ON AN "AS IS" BASIS. EKO WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO YOU OR ANY OTHER PERSON AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND/OR THE SITES AND/OR THE CONTENT AND/OR THE VIDEOS AND/OR THE EMBEDDED VIDEO PLAYER AND/OR THE EKO STUDIO AND/OR THE USER GENERATED CONTENT (AS DEFINED BELOW) AVAILABLE THEREIN.
YOUR USE OF THE SERVICES AND/OR THE SITES AND/OR THE APP AND/OR THE CONTENT AND/OR THE VIDEOS AND/OR THE EMBEDDED VIDEO PLAYER AND/OR THE EKO STUDIO AND/OR THE USER GENERATED CONTENT IS ENTIRELY AT YOUR OWN RISK.
YOU UNDERSTAND AND AGREE THAT EKO IS NOT RESPONSIBLE FOR THE VIDEOS AND THE CONSEQUENCES OF VIEWING OR OTHERWISE SHARING THE VIDEOS. EKO DOES NOT ENDORSE THE VIDEOS OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN, AND EKO EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE VIDEOS.
YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST EKO WITH RESPECT TO ANY VIDEO CONTAINING MATERIALS WHICH MAY BE FACTUALLY INACCURATE, OFFENSIVE, INDECENT, DEFAMATORY OR OTHERWISE OBJECTIONABLE.
Note: Our of our Services is currently free of charge. However, we reserve the right to charge fees for these and other features or services in the future. You hereby acknowledge and agree that you may be charged for Internet, maintenance of network connection and data usage charges made through use of the Services, according to the applicable rates charged by your respective third party Internet and data usage service provider as may be from time to time.
3. Eko Studio Account
You may not have more than one (1) active Account and creating multiple Accounts with overlapping uses or in order to evade a suspension of your Account (as further detailed below) is not allowed.
Your Account is password protected. In order to protect the security of your information available on your Account, to the greatest extent possible, you must safeguard and not disclose your Account username and password and you must supervise the use of such Account.
You must provide accurate and complete information when creating an Account and you agree to: (i) not misrepresent your identity or your Account information; and (ii) keep your Account information up to date and accurate.
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF THE PASSWORD AND ACCOUNT AND FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT. If we in good faith believe you have created an Account impersonating another person, business or user, such Account may expose you to civil and/or criminal liability.
You may not assign or transfer your rights or delegate your duties under the Account without the prior written consent of Eko. You must notify us immediately of any unauthorized use of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from any failure of yours to comply with these Terms, i.e., if someone else accesses your Account through the registration information he/she has obtained from you or through a violation by you of these Terms, or for any unauthorized use of your Account or any other breach of security.
If you wish to either change your log-in details, or cancel and remove your Account, please send us an e-mail of your request to: firstname.lastname@example.org. Your Account will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your Account. Note that you will be able to edit or remove, at any time, any information contained in your personal Account. You may do so by using the edit button.
CANCELLING OR TERMINATING YOUR ACCOUNT MAY CAUSE THE LOSS OF CERTAIN INFORMATION YOU PROVIDED US AND/OR THE CAPACITY OF YOUR ACCOUNT. WE DO NOT ACCEPT ANY LIABILITY FOR SUCH LOSS.
4. The Embedded Video Player
The following terms apply to Users that wish to embed our Embedded Video Player on their online platform:
Subject to your agreement to these Terms, the Company grants to you a limited, revocable, non-exclusive and non-transferable license, with no right to grant sublicenses, to install, use, access, and disseminate the Embedded Video Player, solely in machine-executable form, to your end users of your online platform ("Platform"), subject to the following:
4.1. You may use the Embedded Video Player solely for lawful purposes and subject to these Terms.
4.2. In each instance, the use of the Embedded Video Player and Videos is solely for delivering Videos to your end users' devices and only if you obligate such end users to agree to the terms no less protective of Eko's rights under these Terms (including without limitation the restriction detailed under Section 5 below) in the context of their use of the Embedded Video Player.
4.5. For the avoidance of doubt, you may not use or otherwise process any personal information (as such term is defined under applicable data protection laws) which may be derived from such end-users' use of the Embedded Video Player, without the Company's prior written consent.
5. Use Restrictions
There are certain conducts which are strictly prohibited when using the Services. Please read the following restrictions carefully. Your failure to comply with any of the provisions set forth herein may result in the termination of your access to the Services and may also expose you to civil and/or criminal liability.
Unless otherwise explicitly permitted under these Terms or in writing by Eko, you may not (and you may not permit anyone to): (a) use the Sites, the App, the Eko Studio, the Embedded Video Player, the Content, the Services and/or the User Generated Content for any illegal, immoral, unlawful and/or unauthorized purposes; (b) use the Sites and/or the App and/or Content and/or the Embedded Video Player, the Content and/or the User Generated Content for non-personal or commercial purposes without Eko's express prior written consent; (c) remove or disassociate, from the Services any restrictions and signs indicating proprietary rights of Eko or its licensors, including but not limited to any proprietary notices contained in such materials (such as ©,™, or ®), and you represent and warrant that you will abide by all applicable laws in this respect; (d) interfere with or violate Users' or third party rights to privacy and other rights, or harvest or collect personally identifiable information about Users without their express consent, whether manually or with the use of any robot, spider, crawler, any search or retrieval application, or use other manual or automatic device, process or method to access the Sites and retrieve, index and/or data-mine information; (e) interfere with or disrupt the operation of the Services or the servers or networks that host them, or disobey any laws, regulations, requirements, procedures, or policies of such servers or networks; (f) falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that the Company endorses you, your site, your business or any statement you make, or present false or inaccurate information about the Services; (g) take any action that imposes, or may impose, an unreasonable or disproportionately large load on our Services' infrastructure, as determined by us; (h) bypass any measures we may use to prevent or restrict access to the Services; (i) copy, modify, alter, adapt, replicate, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Services and/or Content and/or User Generated Content or Eko's Intellectual Property (as such term is defined below), in any way or by any means, unless expressly permitted in the Terms and/or under any applicable laws which expressly permits such actions; (j) sublicense, sell, rent, transfer, lend, or make any commercial use of the Site; (k) frame or mirror any part of the Sites, the App, the Eko Studio, the Content and/or the User Generated Content; (l) make any use of the Content and/or the User Generated Content on any other site or networked computer environment for any purpose without Eko's prior written consent or not as expressly permitted in the Terms; (m) create a database by systematically downloading and storing all or any of the data and/or Content and/or the User Generated Content from the Services; (n) transmit or otherwise make available in connection with the Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (o) use the Service to send any offensive content (including but not limited any content which may be offensive for minors), including but not limited to: (i) any content deemed illegal under law; (ii) any content which infringes any third party rights, including copyright, right for privacy, good name, property rights, publicity rights, trade secrets; (iii) any content deemed as pornography, including child pornography; (iv) any other content which may be considered offensive by Eko's sole discretion; and/or (p) infringe and/or violate any of these Terms.
Please note that https://kidhq.com/ maintains its own independent policy regarding use of the site by minors. For more information, please see: https://kidhq.com/.
7. User Generated Content
The Services, and particularly the Eko Studio, enable Users to upload, post, transmit, create, conceptualize, tailor and customize their own copyrightable materials such as the Videos and other comments, texts, images, photos, videos audio clips, comments, information, data and any other proprietary materials (collectively, the "User Generated Content").
The following terms apply to your User Generated Content:
1. You represent and warrant that (1) you are the rightful owner of the User Generated Content or that you have (and will continue to have) all the necessary licenses, rights, consents, and permissions from the licensors of such User Generated Content and (2) that such User Generated Content does not infringe any third party's intellectual property rights, privacy rights or publicity rights.
2. THE USER GENERATED CONTENT THAT YOU UPLOAD IS PUBLICLY AVAILABLE TO OTHER USERS; AND, THEREFORE, IS DEEMED NON-CONFIDENTIAL AND YOU HEREBY WAIVE ANY PRIVACY RIGHTS AND PUBLICITY RIGHTS (AS APPLICABLE) WITH RESPECT THERETO.
3. You understand and agree that you are solely responsible for your User Generated Content and the consequences of posting or publishing such User Generated Content. Eko will not bear any liability for any loss, damage, cost or expense that you may suffer or incur as a result of or in connection with uploading any User Generated Content.
4. You expressly agree that the User Generated Content will not include any unsolicited promotions, advertising, contests or raffles.
5. You agree that you will not post or upload any User Generated Content containing content which is unlawful for you to possess, post or upload in any country in which you are resident, or content which would be unlawful for Eko to use or possess in connection with the Services (including but not limited to any content which is defamatory, libelous, pornographic, indecent, harassing, threatening, abusive or fraudulent).
6. Although Eko has no obligation to screen, edit or monitor any of the User Generated Content, Eko explicitly reserves the right, at its sole discretion, to remove, edit, or disable the access of, any User Generated Content available on the Services at any time without giving any prior notice and for any reason, and you are solely responsible for creating backup copies of your User Generated Content at your sole expense.
7. Eko takes no responsibility and assumes no liability for any User Generated Content uploaded, posted, published or made available by you or any third party in the Services, or for any loss or damage thereto, nor is Eko liable for any mistakes, defamation, libel, falsehoods, obscenities or pornography you or any other third party may encounter.
8. Eko may create limits on the use of the Services, including limitation on size and storage space available for Users to upload User Generated Content.
9. As a viewer of the User Generated Content, you agree that if you find that any User Generated Content available on the Services is offensive, harmful, inaccurate, misleading or was posted in violation of these Terms, please stop viewing such User Generated Content and promptly contact our DMCA Agent, as applicable (for more information see our DMCA policy at: https://company.eko.com/legal/dmca).
8. License to User Generated Content
As between the you and Eko, as long as your User Generated Content is subject to any applicable copyright law, it shall remain at all times, and to the extent permitted by law, your sole and exclusive property. We do not claim ownership of your User Generated Content. However, we need certain licenses to your User Generated Content for business purposes and in order to enable different functions in the Services.
When you upload, post, publish or make available any User Generated Content on the Services, you grant us a perpetual, non-exclusive, royalty-free, and worldwide license to publicly display, communicate, distribute, host, publicly perform, publish, reproduce, make modifications or derivative works (solely for the purpose of better showcasing your User Generated Content), store and use such User Generated Content, in connection with the Services, whether through the Internet, mobile devices or otherwise, in any media formats and through any media channels known today and developed in the future for the purpose of operating, marketing, promoting and improving Eko's services and for any other legitimate business purposes. You hereby waive any moral rights, attribution rights and publicity rights (if any) with respect to our use of the User Generated Content in accordance with these Terms.
When you upload, post, publish or make available any User Generated Content, you grant to each User of the Services a non-exclusive, non-commercial and royalty-free license to access and view your User Generated Content on our Services. Please note that the Company cannot monitor or control what other Users do with your User Generated Content.
EKO TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY USER GENERATED CONTENT UPLOADED, POSTED, PUBLISHED AND/OR MADE AVAILABLE BY YOU OR ANY THIRD PARTY IN THE SERVICES, FOR ANY LOSS OR DAMAGE THERETO OR FOR ANY LOSS OR DAMAGE IT MAY CAUSE THIRD PARTIES, NOR IS EKO LIABLE FOR ANY MISTAKES, DEFAMATION, LIBEL, FALSEHOODS, OBSCENITIES OR PORNOGRAPHY YOU OR ANY OTHER THIRD PARTY MAY ENCOUNTER WITH RESPECT TO THE USER GENERATED CONTENT.
Please note that when you delete User Generated Content, such removed content may persist in backup copies for a reasonable period of time (although it will not be available to other Users).
9. Monetization Revenues
In the event the Company, at its sole discretion, elects to monetize a User's Video created via the Eko Studio, the Company shall notify the User in writing of its election and provide the User with the terms of Eko's creator partnership program (the "Creator Partnership Program"). In the event of any conflicting provisions between the Terms and the terms of the Creator Partnership Program, the provisions of the Terms shall prevail.
10. Misconduct and DMCA Agent
We care for your safety and intellectual property. If you believe a User acted inappropriately, including but not limited to offensive, violent or sexually inappropriate behavior, or if you believe that your work has been copied in a way that constitutes copyright infringement, please refer to our Misconduct and DMCA page at: https://company.eko.com/legal/dmca
11. Linking to Eko's Services and Links to Third Party Resources
In the event that you link to Eko's Services, you represent that your site does not contain content that is unlawful, offensive or infringing third party rights.
Subject to the terms and conditions hereof, Eko hereby grants to you, during the term, and you accept, a personal, non-exclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license to make personal use the Services strictly in accordance with these Terms and applicable law. Notwithstanding, a separate license to embed our Embedded Video Player is included under Section 5 above.
The Company may accept advertisements from third parties. Please note that the Company makes no warranties or representations concerning such advertisements, whether or not the Company has control over such advertisements. The Company, advertisers and/or third-parties related thereto may be entitled to certain shares of the earnings for such advertisements. You agree, acknowledge and consent that you will not be entitled to any compensation with respect to such monetary amounts.
All the information contained in such advertisements and commercials belongs solely to the advertisers and the Company makes no warranties or representations in respect of such, whether or not the Company has control over such advertisements or commercials and these are provided on an "AS IS" basis. In any event, the Company will not be liable for any damage or loss incurred to you as a result of or in connection with such advertisements or commercials. The Company, advertisers and/or related third-parties may be entitled to certain shares of the earnings for such advertisements and/or commercials. You agree, acknowledge and consent that no right, title or interest is or shall be granted to you in any way with respect to any revenue share whatsoever in relation thereto.
EKO AND/OR ITS REPRESENTATIVES ARE NOT OBLIGED TO NOR CAN THEY VERIFY THE ACCURACY OF INFORMATION REPRESENTED IN SUCH ADVERTISEMENTS. THUS, EKO MAKES NO REPRESENTATION REGARDING THE ACCURACY OF ADVERTISEMENTS.
15. Intellectual Property Rights
The Sites, the App, the Content, the Videos, the Embedded Video Players, the Eko Studio and the Services and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, service marks, logos, copyrightable materials and trade secrets, whether or not registered or capable of being registered (excluding the User Generated Content) (collectively, "Intellectual Property"), are owned and/or licensed to the Company and protected by applicable copyright and other intellectual property laws and international conventions and treaties. All rights not expressly granted to you hereunder are reserved by the Company and its licensors.
All rights with respect to the Videos remain owned by their respective owners.
The Terms do not convey to you an interest in or to the Company Intellectual Property but only a limited revocable right of use in accordance with the Terms. Nothing in the Terms constitutes a waiver of the Company's Intellectual Property under any law.
To the extent you provide any feedbacks, comments or suggestions to Eko ("Feedback"), Eko shall have an-exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any of Eko's current or future products, technologies or services and use same for any purpose all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed to be non-confidential. Further, you warrant that your Feedback is not subject to any license terms that would purport to require Eko to comply with any additional obligations with respect to any of Eko's current or future products, technologies or services that incorporate any Feedback.
16. Trademarks and Trade names
Eko's marks and logos and all other proprietary identifiers used by the Company and/or its third party affiliates in connection with the Services ("Company Trademarks") are all trademarks and/or trade names of the Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Services belong to their respective owners ("Third Party Marks"). No right, license, or interest to the Company Trademarks and/or to the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to the Company Trademarks or the Third Party Marks and therefore you will avoid using any of those marks, except as permitted herein.
17. Social Media Features
The Services' availability and functionality depends on various factors, such as communication networks. Eko does not warrant or guarantee that the Services will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free.
17. Special provisions relating to Third Party Components
The App may use or include third party software, files and components that are subject to open source and third party license terms ("Third Party Components"). Your right to use such Third Party Components as part of, or in connection with, the App is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. These Terms do not apply to any Third Party Components accompanying or contained in the App and Eko disclaims all liability related thereto. You acknowledge that Eko is not the author, owner or licensor of any Third Party Components, and that Eko makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Under no circumstances shall the App or any portion thereof (except for the Third Party Components contained therein) be deemed to be "open source" or "publicly available" software.
18. Usage Rules
Since you may be downloading the App from a third party platform, service provider or distributor ("Platform Provider") your use of the App may also be governed by usage rules which the Platform Provider may have established and which relate to your use of the App ("Usage Rules"). Certain Usage Rules are described below, but other Usage Rules may apply and it is your responsibility to determine what other Usages Rules are applicable to your use of the App. You undertake to comply with all the applicable Platform Provider's Usage Rules and the Usage Rules applicable to your use of the App are incorporated herein by reference. In the event of a conflict between the Terms and the terms of any applicable Usage Rules, which relates solely to the Platform Provider's representations, warranties, restrictions on use of the App, obligations, limitation of liability (to the extent applicable to the Platform Provider) other provisions that impose any responsibility on the Platform Provider, the terms of the applicable Platform Provider's Usage Rules shall prevail. You represent that you are not prohibited by any applicable laws or Usage Rules from downloading and/or using the App. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.
The following applies to you if you downloaded the App from the Apple App Store ("Licensed Application"): You acknowledge and agree that (i) the license granted herein is limited to a non-transferable license to use the Licensed Application on an Apple branded device that you own or control, (ii) these Terms are solely between you and the Company, not Apple Inc. ("Apple"), and that Apple has no responsibility for the Licensed Application or content thereof, (iii) your use of the Licensed Application must comply with Usage Rules established by Apple, as set forth in the App Store Terms of Service effective as of the date you enter into these Terms, except that such Licensed Application may be accessed and used by other accounts associated with you via Apple's Family Sharing or volume purchasing; and (iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
The Company and you acknowledge that the Company, and not Apple, is responsible for addressing any claims relating to the Licensed Application or your possession and/or use thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
19. Export and the Location of the User
The App may be subject to export control laws of the United States and/or may be subject to additional export control laws applicable to the User or in the User's jurisdiction. The User agrees that he/she will not ship, transfer, or export into any country, or make available or use the App in any manner, prohibited by applicable laws.
20. Changes to the Services
Eko reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Services (or any part thereof, including but not limited to the Content) without notice, at any time. In addition, you hereby acknowledge that the Content provided in the Services may be changed, extended in terms of content and form or removed at any time without any notice to you. You agree that Eko shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services and/or the Content and/or User Generated Content included therein. You hereby agree that the Company is not responsible for any errors or malfunctions that may occur in connection with the performing of such changes.
Eko has no obligation to provide upgrades or new releases of the Services under these Terms. However, if Eko supplies to you any updates, upgrades and any new versions of the Services ("Updates") according to its then current policies, it may include automatic updating or upgrading of the Services with or without any additional notice to you and the Terms will govern any such Updates, unless these are accompanied by a separate agreement which will prevail, and all references herein to the Services shall include such Updates.
21. Disclaimers of Warranties
TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE SITES, THE APP, THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT ARE PROVIDED ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS, AND EKO, INCLUDING ITS VENDORS, OFFICERS, SHAREHOLDERS, SUB-CONTRACTORS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS AND SUPPLIERS (COLLECTIVELY, "EKO'S REPRESENTATIVES"), DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE.
WE DO NOT WARRANT (I) THAT THE SITES, THE APP, THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT ARE OR WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERRORS, OR FREE OF VIRUSES, DEFECTS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS, (II) THAT WE WILL CORRECT ANY ERRORS OR DEFECTS IN THE SERVICES, (III) THAT THE SERVICES WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR MOBILE DEVICE, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND EKO AND EKO'S REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS, (IV) MAKE ANY REPRESENTATION REGARDING THE USE, INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OF THE SITES, THE APP, THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT AVAILABLE THEREON OR THROUGH THE SERVICES (INCLUDING THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS). EKO AND EKO'S REPRESENTATIVES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY RELIABILITY OR THE QUALITY OF THE SITES AND ARE NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE RELATED TO ANY CONTENT AND INFORMATION DISPLAYED WITHIN THE SITE.
WE ARE NOT RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR OTHERS THAT MAY RESULT FROM TECHNICAL PROBLEMS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF SERVERS, DELAYS OR INTERRUPTIONS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
YOU AGREE THAT USE OF THE SITES, THE APP, THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT IS ENTIRELY AT YOUR OWN RISK AND EKO SHALL HAVE NO LIABILITY RELATING TO SUCH USE.
INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
22. Limitation of Liability
TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IN NO EVENT SHALL EKO, INCLUDING EKO'S REPRESENTATIVES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY) (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, PROFITS OR DATA AND BUSINESS INTERRUPTION) ARISING HEREUNDER, RESULTING FROM OR ARISING OUT OF THE SITES, THE APP THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT, AND/OR THE FAILURE OF THE SERVICES TO PERFORM AS DESCRIBED OR EXPECTED, OR FROM THE PERFORMANCE OR FAILURE OF EKO TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF EKO OR EKO'S REPRESENTATIVES BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, GUARANTEE OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER EKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE AFOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, EKO'S AND EKO'S REPRESENTATIVES' TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SITES, THE APP, THE EMBEDDED VIDEO PLAYER, THE VIDEOS, THE EKO STUDIO, THE SERVICES, THE CONTENT AND THE USER GENERATED CONTENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO EKO FOR USE OF THE SITE, OR $US1.00, WHICHEVER IS GREATER. YOU WILL NOT, AND WAIVE ANY RIGHT TO, SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM US AND FROM EKO'S REPRESENTATIVES.
INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
You agree to defend, indemnify and hold harmless Eko and Eko's Representatives from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use, misuse of, inability to use and/or activities in connection with the Services, the Content and the User Generated Content; (ii) your violation of or failure to adhere to any term of these Terms; (iii) damages you may cause to any third party which relates to your use of the Services, the Content and the User Generated Content, your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party, in connection with your use of the Services, the Content and the User Generated Content; (iv) the User Generated Content you uploaded through the use of the Services; and/or (v) your violation of applicable laws in connection with your use of the Services, the Content and the User Generated Content, including applicable privacy and anti-spam laws. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
Without derogating from the foregoing, we reserve the right, at our expense, to assume the exclusive defense and control of any matter which is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with us in asserting any available defense. You agree not to settle any matter subject to an indemnification by you without first obtaining our prior express written approval.
24. Amendments to the Terms
The Company may, at its sole discretion, change the Terms from time to time, including any other policies incorporated thereto, so please re-visit this page frequently. In case of any material change, we will make reasonable efforts to post a clear notice on the Sites and/or will send you an e-mail (to the extent that you provided us with such e-mail address) regarding such material change. Such material change will take effect seven (7) days after such notice was provided on our Sites and/or sent via e-mail, whichever is the earlier. Otherwise, all other changes to these Terms are effective as of the stated "Last Revised" and your continued use of the Sites and/or the Services following such date constitutes your acceptance of, and agreement to be bound by, those changes. In the event that these Terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
At any time, Eko may block your access to the Services and/or temporarily or permanently limit your access to the Services, at its sole discretion, in addition to any other remedies that may be available to Eko under any applicable law. Such actions by Eko may be taken, for example, if Eko deems that you have breached any of these Terms in any manner, or in the event that Eko finds out that your business engages in illegal activity, or violating any local, state, federal or foreign law or regulation.
Additionally, Eko may at any time, at its sole discretion, cease the operation of the Services or any part thereof, temporarily or permanently, without giving you any prior notice. You agree and acknowledge that Eko does not assume any responsibility with respect to, or in connection with the termination of the Services' operation and loss of any data, including the User Generated Content. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the foregoing, the Intellectual Property Rights, Disclaimers of Warranties, Limitation of Liability, Indemnification and General sections, will survive the termination, or expiration of these Terms.
Upon termination of your Account (including but not limited due to your failure to comply with the Terms) and/or termination of the Site's operation, you are required to stop using the Services immediately. You hereby acknowledge that upon termination of your Account, all information and data provided via the Services will be deleted from our servers and you will not be able to recover the deleted information once the Account is terminated (unless otherwise agreed upon in writing by you and Eko). In addition, it is hereby agreed that upon termination of your Account refunds will be made only per Eko's sole discretion.
(a) These Terms constitute the entire terms and conditions between you and the Eko relating to the subject matter herein and supersedes all prior or contemporaneous written or oral agreements or understandings between you and the Company, (b) any claim relating to the Services or the use thereof will be governed by and interpreted in accordance with the laws of the State of New York without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the Services will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of New York, New York. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, Eko may seek injunctive relief in any court of competent jurisdiction, (d) these Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) no waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) you may not assign or transfer these Terms (including all rights and obligations hereunder) without our prior written consent and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer these Terms without restriction or notification, (i) no amendment hereof will be binding unless in writing and signed by Eko, and (j) the parties agree that all correspondence relating to these Terms shall be written in the English language.
27. For information, questions or notification of errors, please contact:
If you have any questions (or comments) concerning these Terms, you are most welcome to send us an email to email@example.com and we will make an effort to reply within a reasonable timeframe.