These Terms of Service ("Terms") govern your use of the Eko Communications, Inc. ("Eko") Web site ("Site") and the Eko services ("Services"). These Terms apply to all users of the Site and Services. By using the Site or Services, you agree to these Terms.
You must be at least 18 years old to use the Site or the Services and be an authorized user of a company who has signed a Master Subscription Agreement with Eko.
2. Additional Terms
Some of our Services may have additional terms and conditions ("Additional Terms"). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using the Services, you agree to the Additional Terms.
3. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive and safe community experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Eko. When you use the Site or Services, you may not and agree that you will not:
- violate any law or regulation;
- violate or infringe other people's intellectual property, privacy, publicity, or other legal rights;
- use our Site or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission or personal contact information;
- transmit anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam;
- transmit any malicious or unsolicited software;
- stalk, harass, or harm another individual;
- impersonate or misrepresent your affiliation with someone else;
- use any means to "scrape," "crawl," or "spider" any Web pages contained in the Site;
- use automated methods to use the Site or Services in a manner that sends more requests to the Eko servers in a given period of time than a human can reasonably produce in the same period by using a conventional Web browser;
- interfere with or damage our Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- register for more than one Eko account or register for an Eko account on behalf of an individual other than yourself;
- recruit or otherwise solicit any user to join third party services or websites that are competitive to Eko, without Eko's prior written approval;
- use, display, mirror or frame the Site or any individual element within the Site or Services, Eko's name, any Eko trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Eko’s express written consent;
- access, tamper with, or use non-public areas of the Site, Eko's computer systems, or the technical delivery systems of Eko's providers;
- attempt to probe, scan, or test the vulnerability of any Eko system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Eko or any of Eko's providers or any other third party (including another user) to protect the Site or Services;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Eko will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Eko may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Eko has no obligation to monitor your access to or use of the Site or Services or to review or edit any User Content, but has the right to do so for the purpose of operating the Site or Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Eko reserves the right, at any time and without prior notice, to remove or disable access to any Site Content that Eko, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.
4. User Content
You own all content and information you post or share using the Site or Services (referred to as "User Content"). You give Eko permission to use your User Content as follows: you grant to Eko and its affiliates a license to use, copy, or display your User Content in connection with the Site or Services. We may display advertisements in connection with your User Content or on pages where your User Content may be viewed by you or others and we may use your User Content to advertise and promote Eko, the Site or the Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. Our license to your User Content is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights anywhere in the world. Finally, our license is perpetual, meaning that our license lasts for an indefinite period of time.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give Eko the rights described above;
- you have paid and will pay in full any fees or other payments that may be related to the use of your User Content; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content. We may remove User Content from the Site or Services for any reason.
Other than User Content, we own or license the content on the Site and Services, including software, text, visual and audio content (referred to together as "Content") and Eko's trademarks, logos, and brand elements (referred to as "Marks"). The Content and Marks are protected under U.S. and international laws.
6. Copyright and Intellectual Property Policy
Notice of Copyright or Intellectual Property Infringement
We respect the intellectual property rights of others. Please notify us in writing, by e-mail or mail to our designated agent listed below, if you believe that a user of the Site or Services has infringed your intellectual property rights. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").
To be effective the notification should include:
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the claimed infringing material and information reasonably sufficient to permit Eko to locate the material on the Site or Services;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- your physical or electronic signature.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from the Site and Services without liability, and the claims of the complaining party and party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the DMCA.
Counter-Notice by Accused User
If we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication by e-mail or mail to our designated agent below. That written communication should include the following:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if your address is outside of the United States, the United States District Court for the District of New Jersey, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
Please send all notices under the above copyright infringement policies by e-mail or mail to the following individual, designated as Eko's agent for receipt of notifications of claimed infringement:
Please do not send notices or inquiries about anything other than alleged copyright infringement to our Agent for Notice.
Your account will be terminated if, in our discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
8. Third Party Content and Interactions
The Site and Services may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of Eko, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Your interactions with organizations and/or individuals found on or through the Site and Services are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any interaction with any of these third parties. You agree that Eko shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between users of the Site or Services, or between users and any third party, you understand and agree that Eko is under no obligation to become involved. In the event that you have a dispute with any other user of the Site or Services, you hereby release Eko, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Site and Services. If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
10. Changes to the Site or Services
Eko enhances and updates its Site and Services often. We may change or discontinue the Site or any Services, with or without notice to you.
We reserve the right not to provide the Site or Services to any user. We also reserve the right to terminate any user's right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use the Site and Services automatically terminates.
12. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Eko AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS "AFFILIATES") DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND SERVICES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT).
IN PARTICULAR, Eko AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES (INCLUDING, WITHOUT LIMITATION, any recommendations or other content available on or through the Site or Services), OR THE CONTENT OF ANY WEB SITES OR RESOURCES LINKED TO THE SITE OR SERVICES. Eko AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE OR SERVICES.
Eko AND ITS AFFILIATES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICE RECOMMENDED, ADVERTISED OR OFFERED ON OR THROUGH THE Eko SITE OR SERVICES OR ANY LINKED WEB SITE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Eko OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Eko NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE OR SERVICES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Eko may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Eko's liability will be the minimum permitted under such law.
You agree to indemnify and defend Eko and its Affiliates from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including reasonable attorneys' fees and legal costs), arising from or relating to: (a) any information (including your User Content or any other content) that you or anyone using your account submit, post, or transmit through the Site or Services; (b) the use of the Site or Services by you or anyone using your account; (c) the violation of these Terms by you or anyone using your account; or (d) the violation of any rights of any third party, including intellectual property, privacy, publicity, or other proprietary rights by you or anyone using your account. Eko reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If we do assume the defense of such a matter, you will reasonably cooperate with Eko in such defense.
14. Other Provisions
Under no circumstances will Eko be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to these Terms, the Site, or any Services will be filed only in the state or federal courts located in Somerset County, New Jersey. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of these Terms is found to be unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity or enforceability of any remaining provisions.
The failure of Eko to enforce any right or provision of these Terms will not prevent Eko from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, a sale of assets or by operation of law.
15. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will inform you by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use our Site or Services, you agree to the revised Terms.