Last revised: Aug 14, 2023
BY ENTERING, CONNECTING TO, ACCESSING OR USING THE SERVICES THE FIRST TIME (OR BY CLICKING TO ACCEPT, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE AGREEING TO THIS AGREEMENT WHEN SUCH OPTION IS MADE AVAILABLE TO YOU), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH ACTION (THE “EFFECTIVE DATE”).
IF YOU ARE ENTERING INTO THIS AGREEMENT AS A REPRESENTATIVE OF A CLIENT, YOUR ACCEPTANCE IN ANY OF THE FORMS MENTIONED ABOVE REPRESENTS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT RELATING TO YOUR OWN ACCESS AND ALSO HAVE THE AUTHORITY TO BIND SUCH CLIENT AND ITS AFFILIATES TO THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS HEREIN, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO REFER TO SUCH CLIENT FOR WHICH YOU ARE A REPRESENTATIVE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW OR DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT ON BEHALF OF A CLIENT AND MAY NOT USE THE SERVICES.
1. Provision of Services. The Services enable Client to use the eko platform, technology, software, features, functionalities and tools to create interactive customer led video experiences (“Interactive Videos” or “Projects”). Any use of the Services shall be governed by this Agreement.
The Services shall be available promptly following the Effective Date in accordance with the terms of this Agreement, and/or any applicable ordering document (an “Order Form”) entered into between eko and Client, and/or when signing up to use the Services as a self-service customer (a “Self- Service Sign Up”) via the eko.com website (the “Website”). Each Order Form and Self- Service Sign Up shall include a description of the Services to be provided, the start date and if applicable, the term of the Services, and the associated fee and payment information that is entered into between you and eko (a “Subscription”).
2. The agreement between you and eko shall not restrict eko from providing or performing the same or similar services for any third party. eko reserves the right in its sole discretion to: (i) amend, modify or withdraw any portion of the Services at any time for any reason it deems sufficient, or (ii) cease providing any portion of the Services.
3. Term and Termination. This Agreement commences on the Effective Date. The term of each Subscription associated with this Agreement for any of the Services, shall be as specified in the applicable Order Form (“Subscription Term”). Except as otherwise specified in an Order Form, subscriptions for Services which are purchased for a fee will automatically renew for an additional Subscription Term, unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term. eko reserves the right to increase the fees associated with any of the Services by any amount it deems necessary (in its sole judgment), but if a rate increase is planned, eko will provide notice of the same to you at least fifteen (15) days prior to the end of the applicable Subscription Term. Notwithstanding the foregoing, eko will abide by all applicable state laws in relation to the aforementioned, including those laws and permissions regarding automatic renewals. Furthermore, given the nature of digital content, eko does not offer refunds or credits unless a refund is legally required in accordance with the applicable consumer protection state law in which you reside and use the Services, and only in the event the refund is warranted. eko will assess refund or credit requests on their merits but has sole discretion in determining whether a request shall be granted.
In addition to any other remedies it may have, either Party may also terminate the Agreement and any license granted herein upon thirty (30) days’ written notice, if the other Party materially breaches any of the terms or conditions of the Agreement and such breach is not cured within such period.
4. Fees for Services. Client will pay all fees specified in the Order Form or in accordance with the Self Service Sign Up, as applicable to each of the Services. Except as otherwise specified in this Agreement, in an Order Form, or as set forth in the Self Service Sign Up: (a) fees are based on the Subscription purchased (according to the usage tiers, if any), specified; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) the Services cannot be decreased during any applicable and relevant Subscription Term.
Payment. You will provide eko with credit card or bank account information (or you will be billed via invoicing if you are prequalified to make payment in such manner). If you provide credit card or bank account information to eko, you authorize eko to charge such credit card or withdraw via ACH from such bank account any and all fees for all Services listed in an Order Form for the initial Subscription Term and for any renewal Subscription Terms that may apply. Such charges shall be made in accordance with the terms stated in the applicable Order Form. In the case in which you are prequalified to make payment via invoicing, the Order Form will indicate that payment is allowed by such method, and you will be required to provide payment in accordance with the terms therein. Unless otherwise stated in the Order Form, invoiced charges are due within thirty (30) days of the invoice date. You are responsible for providing accurate billing and contact information to eko and notifying eko of any changes to such information.
Overdue Charges. If any invoiced amount is not received by eko by or before the due date specified in the Order Form, then without limiting eko’s rights or remedies, (a) those charges will be subject to a late payment penalty at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) eko will have the option to cancel your subscription and/or to condition future payments on shorter payment terms.
Suspension of Service and Acceleration. If any amount of fees (as provided in an applicable Order Form) are owed by you under this or any other agreement for any of the Services is thirty (30) days or more overdue, you hereby authorize eko to charge your credit card or bank account for the outstanding balance that is due. If the outstanding balance that has been due for thirty (30) days of more cannot be collected by eko after two (2) successive attempts, eko has the option to, without limiting its other rights and remedies, accelerate all unpaid fee obligations under the Subscription so that all such fees become immediately due and payable. Moreover, eko reserves the right to suspend the Services until such amounts are paid in full.
Taxes. eko’s fees do not include any taxes, levies, duties or other governmental assessments of any kind, including, for example, sales, use, value added, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If eko has the legal obligation to pay or collect Taxes for which you are responsible, eko will include such amounts on the Order Form and you will include payment for the amount associated with Taxes unless you provide eko with a valid tax exemption certificate authorized by the appropriate taxing authority. For avoidance of doubt, eko is solely responsible for any taxes assessable against it based on its business including any associated with income, property and employees.
Provision of Free-Trial Services; Support. In the event eko provides you with a free trial in order for you to evaluate the Services to determine if use after the free time period is desirable (“Free Trial Services”). The Free Trial Services will be available to you on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which you registered to use the applicable Free Trial Service(s); (b) the start date of any Subscriptions ordered by you for a fee for any Service(s) that is the same or similar to the Free-Trial Services to which you subscribed; (c) termination of the Free-Trial Services by eko which may be done at any time in eko’s sole discretion. Additional trial terms and conditions that appear on the Order Form associated with the Free-Trial Services are incorporated into this Agreement by reference herein and are legally binding.
ANY CONTENT OR DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU EITHER: (1) PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL; (2) PURCHASE APPLICABLE UPGRADED SERVICES; OR (3) EXPORT SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL DURING OR AFTER THE FREE TRIAL PERIOD, YOUR DATA WILL NOT AUTOMATICALLY TRANSFER TO THE DOWNGRADED SERVICE AT THE END OF YOUR FREE TRIAL PERIOD SO YOU MUST TAKE THE STEP TO EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, YOU AGREE AND UNDERSTAND THAT YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EKO AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE-TRIAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN EACH CASE, DURING THE FREE TRIAL PERIOD.
Please review the applicable documentation provided to you by eko associated with the Free-Trial Services during the trial period so that you become familiar with the features and functions of such Free-Trial Services before you make any purchases.
6. Beta Services. From time to time, eko may make new products and services available to you for free for a specified amount of time, that have not been made commercially available to the public for market testing and improvement purposes (“Beta Services”). You may choose to try such Beta Services in your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated in an Order Form, any Beta Services trial period will expire within one (1) year from the trial start date or sooner at eko's sole discretion. eko may discontinue Beta Services at any time in eko’s sole discretion and there is no guaranty that eko will ever make any products or services associated with such Beta Services generally available. eko will have not be liable for any harm or damages arising out of or in connection with a Beta Service or its use thereof.
ANY CONTENT OR DATA YOU ENTER INTO THE BETA SERVICES AND ANY CUSTOMIZATIONS MADE TO THE BETA SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL OF THE BETA SERVICES WILL BE PERMANENTLY LOST UNLESS YOU: (a) PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL; (b)PURCHASE APPLICABLE UPGRADED SERVICES; OR (c) EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EKO FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE BETA SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
7. Ownership of Services and Projects; License to Client and Authorized User Data. eko, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to Client a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to access and use the Services solely for Client’s own purposes during the term. Client has no rights in or to the Services except as expressly granted in this Agreement. eko reserves to itself all rights to the Services not expressly granted to Client under this Agreement. eko retains all copyright, trademark, patent, and other intellectual property rights in and to the Services. As between the Parties, you acknowledge that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of eko and contain eko’s confidential and proprietary materials. Furthermore, upon eko’s full receipt of twelve (12) months of Fee’s due to it as set forth in the applicable Order Form, eko grants to Client a perpetual, non-exclusive, transferable, sublicensable, and assignable license to all Projects. Client has no rights in or to the Services or Projects except as expressly granted in this Agreement.
Client hereby grants to eko a worldwide, perpetual, and royalty free, license to host, copy, transmit and display Client and Authorized User Data (defined below): (a) as necessary for eko to provide the Services in accordance with this Agreement, and (b) as part of aggregated and anonymized information for any purpose and at any time. Without limiting the foregoing, eko shall have the perpetual, worldwide right and license, at no additional cost, to use, edit and exploit any content that Client or Authorized User’s create through use of the Services, in any manner and media (now known or hereafter devised), in eko’s sole discretion, solely in connection with: (a) the promotion and marketing of eko’ business and/or Services, and (b) any archival and internal business purposes. For avoidance of doubt, even if a Client or Authorized User ceases its relationship with its employer at any time, the license to all Client and Authorized User Data specified in this Section 7 herein shall survive the termination of the relationship and/or the termination of this Agreement.
“Client and Authorized User Data” means all information processed or stored on computers or other electronic media by Client or Authorized User, or that is generated or gathered by or processed by any third party for, or in relation to, Client or Authorized User, or that is otherwise generated or gathered or processed on Client or Authorized User’s behalf by any third party including all data used to set up and maintain Client or Authorized User’s access, use and all associated records involving or associated with Client or Authorized User, or provided to eko for such processing or storage, as well as any information derived from such information including, without limitation: (a) information on paper or other non-electronic media provided to you for computer processing or storage, or information formerly on electronic media; (b) information provided to eko through the Services by you or any other third parties; and (c) any personal information provided by or for you.
8. Usage Limits. Some of the Services may be subject to the limits of Authorized Users specified in the Order Form associated with a usage tier chosen by the Client from options that are presented. The quantity of Authorized Users may not exceed the number of Authorized Users allotted for as is set forth in the applicable Order Form, unless you initiate a new Order Form or upgrade your current Subscription. Except with regard to any shared user account, only an Authorized User account may access such account at any given time and a Client or Authorized User’s user ID and password may not be shared with any other individual. A Client or Authorized User’s user ID may be reassigned to a new individual to replace anyone who no longer has authorization to use the Services.
Authorized User: Authorized Users will: (a) be responsible for compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of the data supplied by an Authorized User to the Services including the means by which the Authorized user acquired the Client and Authorized User Data with the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify eko promptly of any such unauthorized access or use; (d) use Services only in accordance with this Agreement and all applicable laws and government regulations; and (e) comply with terms of service of any Third-Party Products and Services which Authorized User is using. Authorized User hereby agrees that, if Authorized User is provided with the authority and privileges to act on behalf of Client, either as the Client representative that enters into this Agreement (or any extension) on behalf of Client, or as a manager of an enumerated, but adjustable, list of Authorized Users’ profiles, Authorized User will adhere to all additional responsibilities, including the terms and conditions under this Agreement.
Client: Client will: (a) be responsible for the Authorized Users’ compliance with this Agreement, and all associated Order Forms; (b) be responsible for the accuracy, quality and legality of the Client and Authorized User Data, the means by which Client acquired the Client and Authorized User Data and Client’s use of the Client and Authorized User Data with the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify eko promptly of any such unauthorized access or use; (d) use the Services only in accordance with this Agreement and all associated Order Forms and all applicable laws and government regulations, (e) obtain all consents and licenses required relating to third party content including but not limited to, music, lyrics, images and other materials that have been incorporated into the Services; and (f) comply with any of the applicable terms of service associated with your use of such Services.
Intellectual Property Rights of Others. eko deeply respects the third-party intellectual property rights that may be implicated in using the Services. These intellectual property rights, and your responsibilities with respect to these rights, are outlined below.
In creating an Interactive Video using the Services, you will be able to use your own image content such as photos, graphics, text, or video segments (the “Image Content”) and/or your own musical content (the “Music Content”). You retain any and all rights you lawfully hold with respect to the Image Content and the Musical Content.
The Image Content may be protected by copyright, even if not marked with the © symbol. If you are not the creator of the Image Content, then you must get permission from the creator of the Image Content or the copyright holder to use the Image Content in an Interactive Video. For example, professionally-taken photographs should not be used in an Interactive Video unless you have received permission from the photographer to do so. As another example, professionally-produced video clips, such as clips of TV shows or movies, should not be used in an Interactive Video unless you have received a license to do so from the owner of the copyright.
Furthermore, if you want to publish Image Content of someone other than yourself, you must get permission from the individuals portrayed in the Image Content before using the content in an Interactive Video. Do not upload any Image Content that is confidential or proprietary. eko assumes no liability with respect to the disclosure or use of confidential or proprietary information uploaded using the Services.
Musical Content that is not an original creation by you is also protectable under copyright laws. Copying music without purchasing or obtaining the rights to the music is against the law. Prior to uploading your own Musical Content, you must be sure that you have the permission to use such Musical Content in an Interactive Video.
You warrant that all content, including without limitation Image Content and Musical Content uploaded by you, either from your own computer or another site/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to use the Image and/or Musical Content as you intend to use them and grant eko the rights described herein.
For avoidance of doubt, to the extent that any consents or licenses are required for any content, music or lyrics you use or supply to eko or the Services in conjunction with your use of the Services, you will be solely responsible for obtaining such rights and licenses, including, without limitation, obtaining synchronization and performing rights, any necessary corresponding master use licenses and agreements pertaining to all creations including music and lyrics embodied in or used in connection with the Services and for paying all affiliated fees, including those due to any applicable performance rights organizations.
10. Usage Restrictions. Client or Authorized User will not: (a) use Services for any other purpose other than what the Services were intended for and/or make the Services available to, or use the Services for the benefit of, anyone other than Client or Authorized User; (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include it in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Services to store or transmit malicious code; (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein; (f) attempt to gain unauthorized access to the Services or its related systems or networks; (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, if any; (h) copy the Services or any part, feature, function or user interface thereof; (i) frame or mirror any part of the Services, other than framing on the intranets of Client or Authorized User’s employer or otherwise for Client or Authorized User’s own personal use; (j) access the Services for the purpose of monitoring availability or functionality, benchmarking, or otherwise assist with the creation and/or evaluation of any competitive service to the Services; or (k) reverse engineer the Services (to the extent such restriction is permitted by law). In the event eko supplies Client and/or Authorized user with previously created examples of Interactive Videos, images, or other content solely for reference (“Content Examples”), Client and/or Authorized User acknowledges and agrees that they will not remove any visible watermarks, nor will they use the Content Examples as their own. Client or Authorized User also acknowledges and agrees that eko reserves the right to prevent the use of the Content Examples in any project and will refuse to publish any project that contains the watermarked content. A violation of this provision may lead to the imposition of liability and to immediate termination of the Services.
12. Client and Authorized User Responsibility for Data. You will: (a) be responsible for your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Client and Authorized User Data that you input to the Services and the means by which you acquired such data, (c) to prevent unauthorized access to or use of the Services, and notify eko promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the Agreement and applicable laws and government regulations.
13. Non-eko Providers. eko, you or third parties may make available products or services that are not a part of or related to eko products & services. (“Third-Party Products and Services”). Furthermore, the Services may contain features designed to interoperate with Third-Party Products and Services. To use such features, you may be required to obtain access to such Third-Party Products and Services from those applicable providers and may be required to grant access to eko to your account(s) associated with such Third-Party Products and Services. eko cannot guarantee the continued availability of the features or the interoperability of such Third-Party Products and Services with the Services, and may cease providing and/or supporting such features without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of Third-Party Products and Services ceases to make the Third-Party Products and Services available in a manner acceptable to eko and eko correspondingly takes action to block or prevent the use of such Third-Party Products and Services with the Services.
Any usage by you of such Third-Party Products and Services, and any exchange of data between you and any Third-Party Products and Services provider in relation to any such third-party product or service, is solely between you and the applicable Third-Party Products and Services provider and you agree to comply with any applicable terms and conditions of such Third-Party Products and Services. eko does not warrant or support, and is not liable for, any Third-Party Products and Services or any data you exchanged with the provider of such Third-Party Products and Services or the Third-Party Products and Services, whether or not such Third-Party Products and Services are designated by eko as interoperable with the Services, unless expressly provided to the contrary in an Order Form. If you choose to use any Third-Party Products and Services in conjunction with one or more of the Services, you grant eko permission to allow the provider of the Third-Party Products and Services to access Client and Authorized User Data through such Third-Party Products and Services as required for the interoperation of such Third-Party Products and Services with the Services. eko is not responsible for any use, disclosure, modification or deletion of Client and Authorized User Data resulting from access by such provider of any Third-Party Products and Services or the Third-Party Products and Services themselves.
14. Confidentiality. Each Party agrees: (a) to use the confidential information of the other Party (the “Disclosing Party”) only for the purposes associated with, and in accordance with, the terms and conditions of the Agreement; (b) to use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care consistent with its past practices and any applicable laws, and to safeguard the Disclosing Party’s confidential information that is provided to it; and (c) to only disclose confidential information provided by the Disclosing Party to: (i) employees, agents, affiliates and subcontractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written or ethical obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by the Agreement; or (ii) if required by law or regulatory authorities, provided the Party which has received the confidential information (the “Receiving Party”) has given the Disclosing Party prompt notice before disclosure so that it may perform actions in an attempt to prevent disclosure at its sole option. Each Party will protect from disclosure any confidential information disclosed by the other Party for a period commencing upon the disclosure date until three (3) years thereafter. The term “Confidential Information” does not include information that: (a) becomes generally available to the public other than as a result of the Receiving Party or its representatives’ breach hereunder; (b) is already in the Receiving Party’s actual possession, provided that such information is not known by the Receiving Party to be subject to a contractual or legal obligation of confidentiality; (c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be bound by a contractual or legal obligation of confidentiality with respect to such information; or (d) is independently developed by the Receiving Party or any of its representatives without the use of, or reference to, or derived from the Confidential Information. For the avoidance of doubt, any Client and Authorized User Data shall not constitute Confidential Information for purposes herein.
15. Compelled Disclosure. Each Party may disclose Confidential Information of the other Party to the extent compelled under the law, provided that prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, is given if the Party wishes to contest the disclosure.
16. DMCA Take Down Policy. eko respects artist’s and content owner’s rights. It is eko’s policy to respond to an alleged infringement notification in compliance with the Digital Millennium Copyright Act (the “DMCA”). In the event that copyrighted material is posted without the express permission of the copyright holder, eko will remove the infringing content upon the request of the copyright holder.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify eko at the email below. For your complaint to be valid under the DMCA, you must provide the following information in writing:
A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit eko to contact you, such as your address, telephone number, and, if available, and e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Requests must be sent to: email@example.com.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PRISECUTION FOR PERJURY AND CIVIL PENALTIES, INCLDUING MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES.
In accordance with the DMCA and other applicable law, eko has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. eko may also, in its sole discretion, limit access to the Services and/or terminate the accounts of a Client or Authorized User who infringe any intellectual property rights of others, whether or not there are any repeat offenses.
17. Feedback. eko has not agreed to, and does not agree to, treat as Confidential Information any Feedback (as defined below) you provide to eko, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict eko’s rights to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client and/or the Authorized User.
Notwithstanding Section 14 (Confidentiality) of this Agreement, Feedback will not be considered Client’s Confidential Information or its trade secret. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of eko’s products or services. Feedback does not include any suggestion or idea to the extent that it solely addresses Client’s products or services. Client and Authorized Users hereby grant to eko a fully paid up, royalty-free, worldwide, transferable, sub-licensable (through multiple tiers of sub-licensees), irrevocable and perpetual license to incorporate into the Services or otherwise use and fully exploit any and all Feedback.
18. DISCLAIMER OF WARRANTY. TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE SITE, THE SERVICES, THE TOOLS, THE SOFTWARE, THE PLATFORM, THE CONTENT AND THE TECHNOLOGHY 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 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. THESE TERMS GOVERN ALL SERVICES ACCESSED AND/OR PURCHASED AND/OR SUBSCRIBED BY A CLIENT/USER. IN A CASE OF A CONFLICT BETWEEN THE DISCLAIMERS AND WARRANTIES REGARDING ANY SERVICES OF EKO WHICH WERE PROVIDED TO A CLIENT AS PART OF ANY KINF OF AGREEMENT AND THE TERMS HEREIN, THE TERMS SHALL PREVAIL REGARDING EKO’S DISCLAIMERS AND WARRANTY.
IN ADDITION, EKO DOES NOT PROVIDE ANY WARRANTIES REGARDING: (I) THE ACCURACY OF THE RESULTS OBTAINED THROUGH USE OF ANY OF THE SERVICES; (II) THE ACCURACY OF THE DATA CONTAINED WITHIN ANY OF THE SERVICES; (III) THAT ANY OF THE SERVICES WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION; (IV) THE SECURITY OF ANY OF THE SERVICES FROM MALFUNCTION, MISTAKE, INTRUSION OR ATTACK; OR (V) THE NETWORK, COMMUNICATIONS LINKS OR INFRASTRUCTURE YOU USE.
THE USE OF THE SERVICES, THE UPLOADING OF CONTENT, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THE SERVICES OR THROUGH THIRD PARTIES' OR PROVIDER’S WEBSITES, IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
19. Compliance with Americans with Disabilities Act (“ADA”). eko has voluntarily undertaken efforts to comply with the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0, Level AA (“WCAG-2.0 AA”), a set of guidelines adopted by a private group designed to maximize accessibility of web content. Please note that the Services may link to, or interface with, third party websites that eko does not control. These third-party vendors may not have undertaken the efforts that eko has to comply with WCAG-2.0 AA standards.
As the law and accessibility standards continue to change and eko strives to deliver the most up-to-date content online, please understand that eko’s efforts to improve online accessibility are ongoing. eko encourages you to report any accessibility issues you may encounter by contacting eko at firstname.lastname@example.org. eko also encourages you to contact eko to determine if any alternative communication methods or accessibility formats are available.
20. LIMITATION ON LIABILITY. IN NO EVENT SHALL EKO BE LIABLE TO CLIENT OR AUTHORIZED USER, OR ANY THIRD PARTY, FOR ANY LOST REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF EKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND IN NO EVENT SHALL EKO’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT PAID, TO ANY ENTITY, FOR CLIENT OR AUTHORIZED USER’S USE OF THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY, OR IF NO AMOUNT WAS PAID, $1.00 USD).
YOU ARE SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ANY AND ALL INTERACTIVE VIDEOS, PROJECTS OR OTHER CONTENT CREATED USING THE SERVICES. EKO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR INTERACTIVE VIDEOS, PROJECTS OR OTHER CONTENT.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITTAION OF LIABILITIY FOR CONCEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
21. WAIVER OF TRIAL BY JURY.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
22. WAIVER OF CLASS ACTION TYPE RELIEF.
ALL CLAIMS BROUGHT BY CLIENT OR AUTHORIZED USER MUST BE BROUGHT IN THE CLIENT OR AUTHORIZED USER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR PLAINTIFF IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS EKO AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE CLIENT OR AUTHORIZED USER’S CLAIMS.
Without derogating from the foregoing, we reserve the right 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 indemnification by you without first obtaining our prior express written approval.
Audit Rights. eko (or a third party hired by eko for such purpose) shall have the right, at any time, to inspect and audit all accounts, records and Client or Authorized User Data, to determine compliance with the terms contained herein. The cost of such audit shall be borne by eko unless the audit uncovers that the Client or Authorized User has materially breached this Agreement, and then Client shall be responsible for reimbursement of all reasonable costs and expenses of such audit.
24. Dispute Resolution. In connection with any dispute between the Parties arising from this Agreement, the Parties shall attempt to resolve such dispute by utilizing the procedure specified in this Section 24 herein.
(a) Negotiation by Individuals: To commence resolution of a dispute, either Party may send written notice (“Notice”) to the other Party containing a concise summary of the dispute and requesting negotiations. Within seven (7) days following receipt of such Notice by the other Party, each Party will make such investigation as each deems appropriate and will promptly, but in no event later than thirty (30) days from the date of the Notice, communicate to attempt to resolve the dispute. If the dispute has not been resolved within forty-five (45) days of the first communication between the Parties in furtherance of resolving the dispute, arbitration proceedings may be commenced by either Party, as set forth immediately below in Section 24(b) below.
(b) Arbitration: Arbitration shall commence upon written notice (“Arbitration Notice”) by either Party to the other and to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Such dispute shall be conducted before a single arbitrator. Such arbitrator shall be a lawyer knowledgeable and experienced in the field of software licensing, and shall not be affiliated with either Party, or otherwise have any current or previous relationship or association with either Party. Each Party shall designate in writing a list of potential arbitrators within thirty (30) days of the Arbitration Notice. The Parties consent to use any arbitrator whose name appears on both Parties’ list of potential arbitrators, subject to the arbitrator’s availability.
If no arbitrator appears on both Parties’ lists, or if the Parties cannot agree on an arbitrator within sixty (60) days of the Arbitration Notice, the arbitrator shall be selected by the office of the JAMS in New York County, New York or, if such office does not exist, the JAMS office nearest to New York, New York. After an arbitrator is selected, the Parties shall promptly consult with the arbitrator to determine the details of the arbitration process including a schedule and the dates and location of the arbitration hearing. The arbitrator’s decision shall be final and legally binding on both Parties and judgment may be entered thereon. Unless provided otherwise herein, the arbitration shall be governed by the applicable JAMS rules, including the Comprehensive Arbitration Rules and Procedures, applicable at the time of the Notice of Arbitration.
Each Party shall be responsible for its share of the costs of the arbitration hearing as specified in the JAMS rules. In the event a Party fails to participate in the arbitration after having been provided Notice, unsuccessfully challenges the arbitrator's decision, or fails to comply with the arbitrator's decision, the other Party is entitled to costs of the associated litigation, including reasonable attorney's fees for having to compel arbitration or defend or enforce the award.
25. General. This Agreement and all its part are governed by the laws of the State of New York, without reference to its principles of conflicts of laws. Each Party hereby expressly consents to the personal jurisdiction of either the New York state courts sitting in New York County or the United States District Court for the Southern District of New York. The U.N. Convention on Contracts for the International Sale of Goods does not apply. eko may freely assign this Agreement, without consent.
Client or Authorized User may not assign this Agreement. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between the Parties with respect to the Services and supersedes all prior agreements, proposals, representations and undertakings between the Parties in relation to the subject matter hereof (whether written or oral) and may not be modified or amended by Client or Authorized User without the prior written consent of eko.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by a duly authorized signatory of the Party against whom the waiver is to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.