TERMS OF SERVICE

Customers who signed up prior to June 10th, 2025 remain subject to our previous Terms and Conditions, available here.

Last revised: June 10th, 2025

If you are entering into or accepting this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement, as may be amended from time to time. If you do not have such authority, or if you do not agree to these Terms, you may not accept this Agreement , access or use the Platform, or use the Services.

Definitions: 

Unless otherwise defined herein, the following terms shall have the meanings set forth below:

Affiliate: Any entity that Controls, is Controlled by, or is under common Control with a party, where "Control" means ownership, directly or indirectly, of 50% or more of the voting interest.

Agreement or Terms: These Terms of Service and any policies and links referred to in these Terms, which are incorporated herein by reference and form an integral part hereof.

Client or you: The individual, company, partnership, corporation, organization, or other legal entity that has subscribed to the Platform and Services by accepting this Agreement, including any authorized representatives acting on behalf of such entity.

Client Content: Any data, information, materials, or content in any format (including but not limited to text, images, audio, video, files, software, code, works of authorship, databases, or other digital or Items) that is: (i) provided by you or on your behalf to Eko specifically for the purpose of operating the Platform and/or delivering the Services, including Raw Images and Raw Video (as defined below); or (ii) otherwise explicitly identified as Client Content in the Order Form, in each case in connection with this Agreement.

Created Content: Content generated by Eko, based on the Client Content specifically for you as part of your use of the Platform and/or Services. 

Documentation: The user manuals, technical guides, instructions, specifications, help files, and other written or electronic materials provided by Eko that describe the features, functionality, operation, and use of the Platform and/or Services.

End User: Any individual, customer, visitor, guest, consumer, business entity, or other third party who accesses, uses, purchases from, browses, or otherwise interacts with the Client's Website, whether registered or unregistered, and who may access, view, or use the Smart Gallery as part of their interaction with the Client's Website.

Eko, Company, us or we: Interlude US, Inc. and its Affiliates.

Fees: shall have the meaning ascribed to it in Section 5 below. 

Go Live: The first date on which the Smart Gallery is made available to your End Users.

Intellectual Property Rights: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.  

Items: Any physical items, hardware, equipment, devices, components, peripherals, accessories, materials, prototypes, samples, tools, storage media, or other tangible goods of any kind provided by the Client to Eko, or delivered to Eko by anyone acting on the Client's behalf, for any purpose related to the Services, or use in connection with this Agreement.

Order Form: Any document, electronic form, online signup page, or other written instrument mutually executed or accepted by the Parties that specifies the Services purchased by Client, subscription details for the Platform, applicable fees, Subscription term, and other commercial terms specific to Client's engagement with Eko, which is incorporated by reference into and forms an integral part of this Agreement

Parties: The Client and Company collectively. 

Platform: Eko's proprietary content management and optimization system, which enables Clients, inter-alia, to manage and optimize content, import visuals, and deploy experiences using the Smart Gallery. The term "Platform" encompasses all software code, data compilations, algorithms, utilities, functionalities, dashboards, application programming interfaces (including the API/Plug-in), graphical user interfaces, and tools; all visual displays resulting from the Platform's operation; all associated materials, equipment, systems, specifications, reports, and presentation of analytics capabilities; all services provided via the Platform; all updates, upgrades, modifications, customizations, and new versions thereof; and, unless the context requires otherwise, the Documentation. For clarity, the term Platform includes the Smart Gallery.

Raw Images: Unedited original image files captured without software-based modifications or enhancements.

Raw Videos: Unedited original video files captured without software-based modifications or enhancements.

Services: The professional, technical, support, implementation, customization, integration,  consulting, maintenance, hosting, and other services provided by Eko to Client with respect to the Platform, Smart Gallery, or otherwise as specified in the Order Form. 

Studio: Eko’s studio, located in Bentonville, Arkansas or in any other location determined by Eko from time to time.

Subscription: The right granted to Client to access and use the Platform (including embedding the Smart Gallery on the Website) and associated Services for the specified Subscription term, subject to the terms, conditions, limitations, and Fees set forth in the Order Form and this Agreement.

Smart Gallery: Eko’s proprietary technology and software solution that enables the presentation and display of Client Content and\or Created Content, specifically designed to be embedded within the Client's Website. 

Term: Shall have the meaning ascribed to it in Section ‎4.1 below. 

Website: Your website, online platform, online store or other online asset where the Smart Gallery is embedded. The term Website also includes any third party online assets on which the Client embeds the Smart Gallery. 

1. The Smart Gallery and the Services

1.1. Subject to the terms of this Agreement and the payment of applicable Fees, the Company grants the Client, for the duration of the Term, a limited, non-exclusive, non-transferable, revocable (in accordance with these Terms) and non-sublicensable: (a) right to access and use the Platform and the Services solely by remote means and on a SaaS basis; and (b) license to install, embed, use and display the Smart Gallery in the Client’s Website; in each case solely for the Client’s internal business purposes and in accordance with the Documentation.

1.2. The type, scope, and specific features of the Services, along with any usage limitations, entitlements, restrictions, technical implementation requirements and other instructions  relating to your Subscription and use of the Platform and/or Services are specified in the applicable Order Form, which is incorporated herein by reference. Unless otherwise expressly specified in the Order Form, Eko will make commercially reasonable efforts to provide technical support during its regular business hours via email, ticketing system, or other designated means of communication, but is not obligated to provide any additional professional services, customization, or development services without separate agreement and compensation. 

1.3. An account (or multiple accounts, per each Permitted User), will be created in connection with the Client's use of the Platform (the "Account"), to be accessed and/or used solely by the Client and/or the Client's employees or service providers who are explicitly authorized by the Client to use the Platform (each, a "Permitted User(s)"). The Client hereby acknowledges and agrees: (i) to keep, and ensure that the Permitted Users will keep the Account login details and passwords secured at all times; (ii) to remain solely responsible and liable for any activity that occurs in the Account and for any breach of these Terms by a Permitted User; and (iii) to promptly notify the Company in writing, if the Client becomes aware of any unauthorized access or use of the Account or the Platform, loss of any password or other Account access credentials, or otherwise any circumstances that it becomes aware and which may pose a threat to the security of the Account and/or the Platform.

2. Eko Studio

2.1. In order to provide the Services and operate the Platform, you will be required to provide us with certain Client Content, as mutually agreed between the Parties. To enhance the effectiveness and results of the Services and usage of the Platform, as part of the Services, and to the extent identified in the Order Form, we’ll take high-quality photos and videos of your Items at our Studio. You are responsible for sending and collecting the Items from the Studio. Following receipt of the Item, we’ll shoot, process, and display it using the Smart Gallery in accordance with your Subscription terms and any additional terms and conditions set forth in the Order Form.

2.2. You shall bear all costs and expenses associated with shipping Items to and from our Studio, including but not limited to packaging, freight charges, insurance, customs duties, and taxes. Risk of loss or damage to Items shall remain with you during transit to our Studio and shall transfer back to you upon our placement of Items with the carrier for return shipment. While Items are in our possession at the Studio, we shall exercise reasonable care in handling them, but we shall not be liable for any damage, loss, or deterioration of Items except to the extent directly caused by our gross negligence or willful misconduct. You acknowledge that certain Items may be unsuitable for photography or may be damaged during the normal course of handling and photography, and you assume all risks associated with providing such Items. We are not responsible for insuring Items while in our possession unless specifically agreed in writing, and we recommend that you maintain appropriate insurance coverage for all Items sent to our Studio. We disclaim all liability for Items not collected within 30 days after completion notification.

2.3. You represent and warrant that all Items provided to us are legal products that may lawfully be possessed, photographed, and marketed in all applicable jurisdictions, and that the Items and their subsequent photography, display, and marketing do not infringe upon or violate any patent, copyright, trademark, trade secret, right of publicity, or other intellectual property or proprietary right of any third party. You shall indemnify and hold us harmless from any claims, damages, liabilities, costs, and expenses arising from any breach of these representations and warranties.

3. Integration

3.1. In order to use the Smart Gallery, the Client must integrate the Smart Gallery with its Website. This integration is a technical prerequisite for the proper functioning of the Smart Gallery and enables the display and operation of the Created Content within the Client's Website environment.

3.2. Integration options include: (a) Company’s application, designed for the third-party e-commerce platforms; (b) Company’s SDK; or (c) other instructions or technical documentation provided by the Company from time to time. This integration is for direct-to-consumer (DTC) Clients only and does not apply to Clients using third-party marketplaces or platforms. The specific integration method appropriate for the Client's Website will depend on the Client's technical environment, e-commerce platform, and specific requirements, and shall be determined in consultation with the Company during the onboarding process or as otherwise specified in the Order Form.

3.3. For the avoidance of doubt, any SDK, API or other technology provided by the Company for the purposes of integration ("Integration Technology") forms part of the Platform, and its use is subject to these Terms. The Integration Technology is subject to changes and modifications, and the Client is solely responsible for updating its systems and ensuring that its use of the Integration Technology is compatible with its current version.

3.4. The Client is solely responsible for its Website and integration with the Website and the Company shall bear no responsibility or liability in this respect. This includes, but is not limited to, responsibility for any technical issues, compatibility problems, performance impacts, or other consequences arising from the integration or the Client's failure to properly implement, maintain, or update the Integration Technology in accordance with the Documentation or the Company's instructions.

3.5. Unless expressly specified in the Order Form, the Fees do not include implementation services, and any additional assistance may be subject to professional services Fees.

4. Term and Termination

4.1. Term. This Agreement will become effective as of the date you sign the Order Form and will remain in effect until terminated by either party with thirty (30) days’ prior written notice (the “Term”). Termination does not entitle the Client to any refunds, including for any prepaid fees or ongoing commitments.

4.2. Termination for Breach or Insolvency. Company may terminate this Agreement if the Client breaches any of its terms and fails to cure such breach within ten (10) days of receiving written notice. The Company may also terminate this Agreement if Client: becomes insolvent; voluntarily enters insolvency proceedings; is more than thirty(30) days delinquent in paying its fees.

4.3. Effect of Termination. Upon expiration or termination of this Agreement, all rights, licenses and Subscriptions granted to Client, will immediately terminate. The Client must immediately remove the Smart Gallery from the Website, cease use of the Platform, Services, and any associated Confidential Information, except for any Raw Images or Raw Videos which it is entitled to retain. It is hereby clarified that Eko may retain the Created Content indefinitely for its independent internal use. Each party must return or destroy any remaining Confidential Information and proprietary materials belonging to the other party except as required by law. The following provisions will survive termination: Ownership of Platform and Smart Gallery; Client Content, Confidentiality, Disclaimers, Indemnification, and this Effect of Termination clause. Additionally, all unpaid Fees shall become immediately due and payable. This includes any subscription fees or outstanding balances related to the Services. All payments made to the Company are non-refundable, including any prepaid subscription fees, setup fees, or other advance payments—regardless of whether the Services were fully used. No credits, refunds, or prorated adjustments will be provided for partial usage or early termination.

5. Payment of Fees

5.1. You agree to pay all fees (including setup fees and monthly subscription) as outlined in your Order Form (the “Fees”). Taxes (like sales or value-added taxes) associated with Client’s purchases hereunder, are not included in the fees, and you’re responsible for paying them, unless you provide a valid tax exemption certificate.

5.2. We reserve the right to modify our fees at any time at our sole discretion. Any changes to pricing will be posted on our website and will become effective at the start of your next billing cycle. By continuing to use the Service after the updated fees take effect, you agree to the new pricing. If you do not agree with the fee changes, you may terminate your subscription before the next billing cycle begins, subject to our termination terms.

5.3. If your payment method fails or an invoice becomes past due, Eko may: (a) suspend the Service upon thirty (30) days written notice, until such amounts are paid in full; (b) Charge interest on overdue amounts at 1.5% per month (or the maximum amount permitted by law), whichever is lower.

6. Ownership of Platform and Smart Gallery; Client Content; Created Content

6.1. The Platform is not for sale and is and shall remain the Company' sole property. All right, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected, and/or related to the Platform, including the Smart Gallery, and/or the Services and any and all derivative works, improvements, enhancements, updates, upgrades and customizations thereof or thereto (in each case regardless of whether specifically included in the Services ordered by the Client or not) are and shall remain owned solely by the Company or its licensors. These Terms do not convey to Client any interest in or to the Platform and/or the Smart Gallery and/or the Services but only, as aforesaid, a limited revocable right to use the Platform the Smart Gallery and/or Services, in accordance with the terms of these Terms, and nothing herein constitutes a waiver of the Company's Intellectual Property Rights under any law.

6.2. By providing the Company with Client Content or by uploading or placing Client Content on the Platform, you grant the Company and its Affiliates a non-exclusive, worldwide, royalty-free, perpetual and sublicensable license to develop Created Content and to use, host, copy, distribute, display, adapt, and publish that Client Content and Created Content: (a) through the Platform and Services or as otherwise necessary to provide the Services in accordance with this Agreement; and (b) for Eko’s internal business needs. The licenses set forth in this section, include without limitation rights to: archive, store, and transmit the Client Content and Created Content; publicly perform or display the Client Content and Created Content; use the Client Content and Created Content to promote or improve Company’s Services; use the Client Content and Created Content for Company’s internal business purposes. 

6.3. You hereby agree and acknowledge that all Created Content generated, developed, or produced shall be owned exclusively by Eko, regardless of whether such content is based on Client Content or not. To the extent that you may have or acquire any rights, title, or interest in or to the Created Content, you hereby irrevocably assign, transfer, and convey all such rights to Eko in perpetuity. You acknowledge that the Created Content does not constitute work made for hire under applicable copyright law. You expressly waive any and all rights to royalties, compensation, attribution, or moral rights (including but not limited to rights of paternity and integrity) with respect to the Created Content, to the fullest extent permitted by applicable law. Notwithstanding the foregoing, Eko shall use Created Content solely to provide the Platform and Services to you and for its and its Affiliates' internal business needs, as determined by Eko in its sole discretion.  The Created Content is intended solely for use within Eko's Platform and Smart Gallery, and you acknowledge that you are not entitled to receive, retain, or obtain copies of the Created Content. This assignment and waiver shall survive termination of your agreement with Eko and shall be binding upon your heirs, successors, and assigns.

6.4. You represent and warrant that: (a) you have the authority to grant these licenses; (b) the Client Content and its use by the Company shall not infringe on any third party's right, including Intellectual Property Rights and/or privacy, data protection, or publicity rights, and shall not breach any applicable laws or regulations and/or violate any policies or terms that govern the Client Content; and (c) the Client Content does not include any materials or data that are illegal, immoral, or offensive. 

6.5. You explicitly agree that the Client Content and Created Content may be used to inform, train, develop or serve as input to artificial intelligence or machine intelligence technologies or services as part of and for providing the Services.

6.6. Except as expressly set forth herein, you retain all rights, title, and interest in your Client Content. The Client hereby agrees and acknowledges that: (a) the Platform is not intended to be used as a backup service, and it is the Client’s responsibility to ensure that it maintains independent copies of all Client Content uploaded to the Platform or otherwise provided to the Company; and (b) the Company is unable to verify the accurateness, completeness and/or legality of the Client Content, and Client is solely responsible for the accuracy, quality, legality and completeness of the Client Content. 

6.7. The Company may collect, disclose, publish and use in any other manner anonymous information which is derived from the use of the Platform and/or Services and/or the Client Content (i.e., non-identifiable information, aggregated and analytics information that does not identify an individual person or entity) (collectively, "Analytics Information"), in order to provide  and improve the Platform and/or Services and for R&D purposes. The Company is and shall remain the sole owner of the Analytics Information, and Analytics Information (as defined below) shall not be regarded as Client Content or Client’s Confidential Information.

7. Restrictions 

Prohibited Uses 

7.1. You agree to use the Platform and the Services in compliance with all applicable laws. Except as expressly permitted herein, without prior written consent from the Company, you shall not, directly or indirectly, and shall not permit any third party to:  (a) copy, rent, lease, sell, resell, license, sublicense, assign, transfer, syndicate, distribute, pledge, lend, or provide access to the Services and/or the Platform, in whole or in part; (b) transmit, upload, or store any harmful or malicious code, such as viruses, worms, spyware, Trojan horses, time bombs, or any similar software that may disrupt or damage the Services and/or the Platform or any related third-party systems; (c) attempt to gain unauthorized access to the Services and/or the Platform or interfere with their integrity, security, or performance; (d) modify, reverse engineer, decompile, disassemble, or create derivative works from the Services and/or the Platform; (e) embed and/or use the Smart Gallery on any website or other online asset other than those owned and operated by you, or otherwise in online assets that include content which is illegal, immoral or offensive, including without limitation in connection with any content that promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group, sexually explicit, pornographic, or obscene material, content that is defamatory, libelous, threatening, or harassing, or content that promotes or facilitates illegal activities, including but not limited to activities related to illegal drugs, weapons, gambling (where prohibited by law), or counterfeit goods; (f) use or integrate the Services with any software licensed under an open-source license that could conflict with these Terms or impose restrictions or rights affecting Company’s proprietary rights; (g) distribute or reproduce the Services and/or the Platform for the benefit of third parties; (h) remove or otherwise modify any of the Company's trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed, incorporated, included or attached to the Platform; (i) use the Platform for any other purpose other its designated purpose as detailed above; (j) use the Platform in a manner that violates or infringes any rights of any third party, including but not limited to, right of privacy, proprietary rights or Intellectual Property Rights of any third parties; (k) circumvent, disable or otherwise interfere with security-related features of the Services and/or the Platform or features that enforce limitations on use of the Services and/or the Platform.

7.2. Legal and Responsible Use

You further agree to ensure that your use of the Services and/or the Platform and your End-Users' use of the Smart Gallery does not: violate any applicable law or regulation; infringe on the rights of any third party, including but not limited to intellectual property, privacy, publicity, or contractual rights; encourage or promote illegal activity. If Company reasonably believes that you or your End Users are in violation of this section, it reserves the right, in its sole discretion and without prior notice, to remove Client Content or suspend or terminate your access to the Services and/or the Platform.

8. Third Party Software and Services 

Certain features of the Platform and/or the Services may incorporate, integrate with, or rely on third-party software or services. Your access and use of such third-party elements are governed by the applicable third party’s terms of service or license agreements. The Company disclaims any representation, warranties and liabilities with respect to such third party software or services. The Company is not responsible for any issues, errors, or losses whether direct or indirect, that may arise from your use of third-party software or services, even if accessed through the Platform.

9. Representations and Warranties

You represent and warrant that: (a) you have full legal authority to enter into and perform your obligations under this Agreement; (b) you will comply with all applicable laws, this Agreement, and any Order Form associated with your use of the Platform and/or the Services; (c) you are an entity duly organized, validly existing, and in good standing under the laws of your jurisdiction; (d) all information provided by you in connection with the Agreement is complete, truthful, and materially accurate; and (f) you are solely responsible for ensuring any legally required disclosures are included in your Client Content before making it available via the Platform and/or Services.

10. Data Protection and Website Terms

10.1. Data Collection Activities. The Smart Gallery collects certain data relating to viewers through tracking technologies, including third-party cookies, pixels, and similar technologies (collectively, "Tracking Technologies"), to obtain usage and engagement statistics. 

10.2. Privacy Compliance Obligations. When embedding the Smart Gallery on your Website, website, or any other online asset (collectively, "Your Properties"), you shall be solely responsible for: (a) Ensuring that all data collection and processing activities related to the Smart Gallery on Your Properties comply with applicable data protection, privacy and consumer laws; (b) obtaining all necessary and legally valid consents from end-users of Your Properties for the collection of their personal data and the use of Tracking Technologies in connection with the Smart Gallery; (c) providing to end-users of Your Properties all privacy notices legally required in connection with the use of the Smart Gallery, in clear and conspicuous language; (d) implementing and maintaining, to the extent required by applicable law, an appropriate consent management platform or cookie banner on Your Properties to obtain, record, and manage such consents. Upon request by the Company, you shall promptly provide the Company with records attesting to such consents and any other documentation reasonably necessary to demonstrate compliance with the obligations set forth in this section.

10.3. Tracking Technologies Disclosure. The Smart Gallery uses certain Tracking Technologies as detailed in our Cookies Policy, available here, which may be updated from time to time. You acknowledge your obligation to review this information regularly and to ensure your privacy notices and consent mechanisms reflect any changes.

10.4. Terms of Use Requirement. You shall ensure that Your Properties have terms of use that protect the Company's interests with respect to the Smart Gallery at least as comprehensively as this Agreement, including but not limited to provisions protecting the Company's intellectual property rights and implementing appropriate limitations of liability.

10.5. Personal Data in Content and Client Content. To the extent that any Content or Client Content that you upload to the Platform or otherwise provide to the Company in connection with the engagement hereunder includes any personal data (as such term is defined under applicable data protection laws), you represent and warrant that: (a) the collection, processing, and transfer of such personal data to the Company is lawful under all applicable data protection and privacy laws; (b) you have obtained all required consents from the data subjects whose personal data is included in such Content or Client Content; (c) you have provided all necessary privacy notices to such data subjects regarding the processing of their personal data; and (d) you will be responsible for the accuracy, quality and legality of Client Content supplied to the Company and/or the Smart Gallery and the means by which you acquired such data.

10.6. Indemnification for Non-Compliance. You agree to defend, indemnify, and hold harmless the Company and its officers, directors, employees, agents, licensors, and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your failure to comply with the obligations set forth in this section.

10.7. Audit Rights. Upon reasonable notice, the Company reserves the right to audit your compliance with the obligations set forth in this section. You shall cooperate with any such audit and provide any information reasonably requested by the Company to verify your compliance.

11. Confidentiality 

Each party or its Affiliates (collectively, “Recipient”) may, prior to or during the course of this Agreement, receive, have access to, or acquire information from the other party or its Affiliates (collectively, “Discloser”) that is not publicly available and that the Discloser designates as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information includes, without limitation, technical, business, financial, and strategic information, as well as non-public product or service features, software, and documentation. For clarity, Company’s Confidential Information includes the design, functionality, and performance of its Platform and Services.

Confidential Information does not include information that the Recipient can demonstrate: (a) is or becomes publicly known through no breach of this Agreement; (b) was rightfully in the Recipient’s possession without restriction before disclosure; (c) is disclosed to the Recipient without restriction by a third party lawfully entitled to make such disclosure; (d) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information. The Recipient shall not (i) use any Confidential Information for any purpose other than to perform its obligations under this Agreement or (ii) disclose it to any third party, except to its employees, contractors, or agents (“Representatives”) who have a need to know such information and are bound by confidentiality obligations at least as protective as those in this Agreement. The Recipient shall be responsible for any breach of this section by its Representatives. The Recipient shall protect the Discloser’s Confidential Information using at least the same degree of care it uses to protect its own similar information, but no less than a reasonable standard of care. If legally compelled to disclose Confidential Information, the Recipient shall provide prompt written notice (if legally permitted) and cooperate with the Discloser to seek protective measures. 

12. Feedback and Marketing 

You may provide Eko with suggestions, comments, or other feedback regarding the Services (“Feedback”). You acknowledge that all Feedback is provided voluntary and, unless otherwise agreed in writing, Company may use, disclose, reproduce, license, and otherwise exploit the Feedback without restriction or obligation to you. You hereby grant Company a perpetual, irrevocable, worldwide, royalty-free, fully transferable, and sublicensable license to use and incorporate the Feedback into the Services or any other Company products or services, and you waive any and all rights therein, including moral rights and the right to seek compensation or receive royalties,  to the extent permitted by law.

Company shall also have the right to: (i) refer to its business relationship with Client in marketing materials, presentations, case studies, and public communications, including the right to use and display Client’s name and logo; and (ii) hyperlink to the Client’s website from Company’s own website and digital properties. From time to time, Company may request a written or video testimonial or referral from Client. Client agrees to consider such requests in good faith.

13. DISCLAIMER OF WARRANTY 

EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. COMPANY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

WITHOUT DEROGATING FROM THE FOREGOING, THE COMPANY DOES NOT GUARANTEE THAT THE SERVICES OR THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES AND/OR PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY IS NOT RESPONSIBLE FOR ANY CONTENT, DATA, OR MATERIALS POSTED, UPLOADED OR PROVIDED BY YOU, YOUR END-USERS, OR THIRD PARTIES, OR FOR THE INTEROPERABILITY OF THE SERVICES AND/OR PLATFORM WITH ANY NON-COMPANY APPLICATIONS OR SYSTEMS. YOU ACKNOWLEDGE THAT YOU USE THE SERVICES AND/OR THE PLATFORM AT YOUR SOLE RISK AND DISCRETION.

14. LIMITATION ON LIABILITY

14.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY AND ITS EMPLOYEES, CONTRACTORS, AGENTS, DIRECTORS, SHAREHOLDERS, LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS (COLLECTIVELY, “COMPANY’S REPRESENTATIVES”) BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CLIENT’S USE OF OR INABILITY TO USE THE SERVICES AND/OR THE PLATFORM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY’S AND THE COMPANY’S REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR, IF NO AMOUNT HAS BEEN PAID, ONE U.S. DOLLAR ($1.00).

14.3. THE FOREGOING LIMITATIONS SET FORTH UNDER SECTION ‎14.2 SHALL NOT APPLY TO RESULTING FROM WILLFUL MISCONDUCT, FRAUD OR FRAUDULENT MISREPRESENTATION OR TO ANY LIABILITY THAT CANNOT LEGALLY BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. 

15. Indemnification

You hereby agree to defend Company (including our employees, agents, vendors, partners, lawyers, affiliates, and anyone else associated with us) (“Company Indemnified Party”) against any and all claims, complaints, charges, demands, suits, or proceedings brought against any Company Indemnified Party by a third party due to, arising out of, or relating in any way to: (a) your actual or alleged breach of the Agreement and any of the representations or warranties set forth herein; (b) your use of any products or services provided by a third party in connection with the Services; (c) the actions of each individual with access to your accounts related to the Services; (d) your use or misuse of Company’s Platform and the Smart Gallery; (e) your violation of third-party rights, including intellectual property or privacy rights (for example, copyright, trademark, or patent issues) and (f) the Client Content you provided. We also reserve the right to take over the defense of any issue that falls under your indemnification responsibilities. Even if we take control of the defense, you’re still responsible for indemnifying us, and you’ll need to fully cooperate with us. Additionally, you agree not to settle any issue covered by indemnification without first getting our written approval.

16. Dispute Resolution

16.1. Any dispute, claim, or controversy arising out of or relating to the Services, the Platform and/or these Terms, or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), shall first be attempted to be resolved through good-faith negotiations between the parties. If the parties are unable to resolve the Dispute within thirty (30) days of notice, the Dispute shall be submitted to final and binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration shall be conducted in English by a single arbitrator in New York, NY, and the decision of the arbitrator shall be final and binding on both parties. Each party shall bear its own legal fees and costs associated with the arbitration, except as may be required by applicable law or determined by the arbitrator. Judgment on the award rendered by the arbitrator shall be entered in New York, NY. 

16.2. Class Action Waiver: You and the Company agree that any Dispute will be resolved only on an individual basis and not in a class, consolidated, or representative action. You expressly waive any right to file or participate in a class action or seek class-wide relief.

16.3. Jury Trial Waiver: To the fullest extent permitted by applicable law, each party knowingly and voluntarily waives the right to a trial by jury in any legal proceeding arising out of or relating to these Terms or the use of the Services.

16.4. Equitable Relief: Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of its intellectual property rights or confidentiality obligations.

17. General

17.1. Assignment: Company may assign or transfer this Agreement without your consent, but you may not assign or transfer it without obtaining our prior written approval.

17.2. Validity: If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect.

17.3. Entire Agreement: This Agreement constitutes the entire understanding between the Parties regarding the Platform and Services and supersedes any prior agreements or discussions.

17.4. Independent Contractors: The Parties are independent contractors, and this Agreement does not create a partnership, joint venture, or employer-employee relationship.

17.5. Waiver: No waiver of any rights under this Agreement will be effective unless in writing and signed by the party granting the waiver. A delay in exercising any rights does not waive those rights.

17.6. Amendments: Company reserves the right to amend, update, or modify this Agreement at any time by posting the updated terms on the applicable URL or notifying you by email. Any such amendments will take effect immediately upon posting, unless otherwise stated.

17.7. Company Rights: Company reserves the right, at its sole discretion and without prior notice, to take any of the following actions at any time and for any reason, including but not limited to system maintenance, legal compliance, business considerations, or user misuse: (a) suspend, limit, restrict, or permanently discontinue access to any part or feature of the Services and/or the Platform; (b) modify, update, remove, or delete any Content, information, or materials made available through the Services and/or the Platform; and/or (c) change, enhance, or revise the functionality, design, features, or user interface of the Services and/or the Platform. These rights apply to all End-Users, Clients and users and may be exercised with or without cause. The Company shall not be liable for any loss or damages arising from the implementation of these actions.

BY CLICKING AN ACCEPTANCE BUTTON, PURCHASING A SUBSCRIPTION, EXECUTING AN ORDER FORM, REGISTERING FOR, OR OTHERWISE USING THE PLATFORM AND/OR THE SERVICES, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND AGREE TO BE BOUND BY ALL OF THEIR TERMS AND CONDITIONS.