End User License Agreement (EULA).
End User License Agreement
Last Updated: 5 April, 2023
Ekwe.app LLC (“Ekwe,” “we,” or “us”) is proud to offer the Ekwe mobile-based music platform, which is available for download and access via the Apple Store and Google Play Store (the “App”). We also provide information and resources about our App via our website located at ekwe.app (the “Site”). The App and the Site, together with all software, information, data, materials, and content offered thereby or contained therein, are collectively the “Services.”
This End User License Agreement (“Agreement”) is by and between you and Ekwe and governs your access and use of the Services. “You” and similar terms means you, as an individual, as well as the school, organization, business, or entity on whose behalf you are using the Services (“Organization”). By accessing and using the Services, and entering into this Agreement, you represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and such Organization.
Please read this Agreement carefully. By either: (i) accessing or using the Services, including downloading or installing the App on a device, (ii) executing an order form, purchase order, or invoice for license(s) to use the App (“Order”), or (iii) otherwise clicking on the “I Agree,” “Submit,” “Create Account,” or similar button or check box when prompted, you accept and agree to be bound and abide by this Agreement and agree to bind the Organization on whose behalf you are accessing or using the Services. If you do not want to agree to this Agreement, you must not access or use the Services.
You understand that we reserve the right to change or amend this Agreement from time to time. Except as otherwise required by law, all changes shall be immediately effective upon their posting to the Website or App. You acknowledge and agree that your continued access and use of the Services following such changes shall be deemed acceptance by you of any new or amended terms to this Agreement. Ekwe will not be liable for any damages as a result of any of these actions.
AS BETWEEN YOU AND EKWE, THE SERVICES AND ALL CONTENT THEREIN, INCLUDING ANY INSTRUMENT RECORDINGS OR SOUNDS THAT ARE PROVIDED OR MADE AVAILABLE BY EKWE VIA THE APP (COLLECTIVELY, “SAMPLES”), AND ALL COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS THEREIN, ARE THE PROPERTY OF EKWE (OR ITS LICENSORS). ALL SAMPLES ARE COPYRIGHTED SOUND RECORDINGS; ALL RIGHTS RESERVED.
Your rights to access and use any Samples is strictly conditioned on your compliance with the terms and conditions of this Agreement.
ELIGIBILITY. By accessing or using the Services, and/or authorizing the use of the Services by another individual, you represent and warrant that you are 18 years of age or older and otherwise meet all of the requirements contained herein to enter into this Agreement. If you do not meet all of these requirements, you must not access or use the Services. Those who choose to access the Services from outside of the United States do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws, rules, and regulations in their respective location in doing so.
CHILDREN. The Services are directed at and for use by a general audience; however, an Order may permit the access and use of the Services by individuals under the age of 18. If you have agreed to an Order that permits the access and use of the Services by individuals under the age of 18, you represent and warrant that you have the rights and authority to enter into and abide by the terms and conditions of this Agreement in connection with such individuals’ access and use. You hereby consent to Ekwe’s collection, use, and disclosure of children’s personal information in accordance with the Ekwe Children’s Privacy Policy. In some cases, verifiable consent from the child’s parent or legal guardian is required in order for any child to use the Services. You are responsible for complying with all of Ekwe’s requests made in order to verify parental or legal guardian consent for a child to use the Services. Children under the age of 13 in the United States may not use the Services until we receive and process this verifiable consent.
PRIVACY POLICY. Your access and use of the Services, including your creation of an account with Ekwe, is subject to the Ekwe Privacy Policy. Please carefully review the Privacy Policy. You agree that the collection, use, and disclosure of your information is governed by the Ekwe Privacy Policy, and you consent to all actions we take with respect to your information consistent with the Ekwe Privacy Policy.
LICENSE GRANT. Subject to your compliance with this Agreement, we hereby grant you a limited, non-exclusive, non-transferable, personal right to access and use the Services, during the Term, solely and strictly in accordance with this Agreement for lawful, non-commercial purposes. You understand and agree that the Services are provided under license to you, not being sold to you, and you do not gain any ownership interest of any kind in the Services (or any Samples) under this Agreement. You are not in any way authorized by the license granted hereunder, or this Agreement, to exploit the Services to compete with Ekwe’s business.
COMPOSITIONS. The Services allow you to create unique configurations, arrangements, and formations of sounds using the Samples, as well as audio or sounds inputted by you through features available via the Services (collectively, “Compositions”). You are permitted by this Agreement, on a limited basis, to create Compositions, to export or download Compositions, and to use, publish, copy, and perform the Compositions; provided that, such use, publishing, copying, or performance: (i) is at all times in compliance with all applicable laws, (ii) does not at any time infringe, misappropriate, or violate the intellectual property, proprietary, or publicity rights of any third party; (iii) appropriately credits and attributes the Samples as being exclusively owned by Ekwe. Ekwe specifically owns and exclusively reserves all rights, including all synchronization, reproduction, or performance rights, in and to the Samples incorporated in or used in connection with any Composition.
USER TYPES. In addition to general Site visitors, the following are the types of users that are authorized to register to use the App (collectively, and together with general Website visitors, “Users”):
Individual: The App is generally available to the public and individuals may access and use the App. Unless you are a Parent/Legal Guardian (defined below), an Educator (defined below), or School (defined below), you are only permitted to use the App as an “Individual” type. This means you are a person over the age of 13 who wants to enjoy the App for your own personal benefit. The license granted herein is limited to your sole use of the App. You may not permit others to benefit from or use the App under your license.
Parent/Legal Guardian. A “Parent/Legal Guardian” user type means an adult obtaining a license to the Service for use by a child under the age of 18. Verifiable consent from the child’s parent or legal guardian may be required in order for a child to use certain portions of the Service (e.g., collaboration and exporting functions) in connection with this user type. Please review Ekwe’s Children’s Privacy Policy to learn more about how Ekwe collects, discloses, and uses information provided by children under the age of 13 in the United States. You are responsible for complying with all of Ekwe’s requests made in order to verify parental or legal guardian consent for a child to use the Services. Children under the age of 13 in the United States may not use the Services until we receive and process this verifiable consent. As a Parent/Legal Guardian, you assume all liability for any use of the Services in connection with your account or license, including any violation of any Content Standards by a child.
Educator: An “Educator” user type means a tutor, teacher, or school administrator who either: (1) operates as an independent educational professional working with children, or (2) operates as an educational professional as part of an organization and is authorized by such organization, school, and/or school district to download, install, register with, and use the App. As an Educator, you represent and warrant that you are an educational professional, teacher, or school administrator. If you are an educational professional engaged by an organization, you further represent and warrant that you have permission and authorization from such organization, school, or district to download, install, register with, and use the App and that you are authorized to facilitate the access and use of the App in connection with the education of students. You agree to, upon request by Ekwe, promptly execute and deliver, or cause any third party, including parent or legal guardian, to execute and deliver, any documentation, consents, or other acts as Ekwe may deem necessary or desirable to provide the App and you the licenses granted hereunder.
School: A “School” user type means a school or district administrator purchasing a license to use the App for use by a school (i.e., multiple teachers or students) or school district (i.e., multiple schools and their teachers and students). As a School user type, you represent and warrant that you have permission and authorization from the school and/or district to download, install, register with, and use the App and that you are authorized to facilitate the access and use of the App by students. You agree to, upon request by Ekwe, promptly execute and deliver, or cause any third party, including parent or legal guardian, to execute and deliver, any documentation, consents, or other acts as Ekwe may deem necessary or desirable to provide the App and you the licenses granted hereunder.
Educators are, and Schools may designate, administrative users (“Admin Users”). Admin Users can create additional authorized user accounts for their students, faculty or other individuals (“Authorized Users”) and assign certain permissions to such additional accounts. You are liable for all use of the App by your Authorized Users and the conduct of your Authorized Users shall be considered your conduct for the purposes of the rights and obligations hereunder. Depending on the level of permissions assigned to your user account, you may not have access to or be able to view or use all of the functions or features of the App.
CREATING AN ACCOUNT. In order to access the Services, you may be required to create an account with Ekwe that may include choosing an account name and setting a password. When you do so, the information you provide Ekwe must be accurate, complete and up-to-date. When registering with Ekwe, you shall not impersonate anyone else, choose names that are offensive, or violate anyone’s rights. If you do not follow these rules, we may cancel your account.
ACCOUNT SECURITY. You acknowledge and agree that you are responsible for all the activity on your account, and for keeping your account credentials secure and confidential. If you have reason to believe that someone has accessed or used your account without your permission, you must immediately change your password and report the incident to Ekwe using the “Contact Us” details below. You will be held liable for losses incurred by Ekwe, or any other user of or visitor of the Services, due to someone else using your Ekwe password or account. You shall not use anyone else’s Ekwe password or account at any time. Ekwe cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
ACCESSING THE SERVICES. From time to time, we may restrict users’ access to some parts of the Services or the entire Services. Ekwe makes no guarantees regarding uptime, availability, or access to the Services. You use the Services at your own risk and the Services are at all times provided “as is.” You are responsible for: (i) making all arrangements necessary for you to have access to the Services, including your internet connection and internet stability; and (ii) ensuring that all persons who access the Services through your internet connection are aware of this Agreement and comply with them. We may block, limit or terminate your access to the Services if: (i) you violate this Agreement; (ii) you violate any applicable law, rule, or regulation relating to your use of the Services; (iii) you engage in any conduct which we, in our sole discretion, believe is offensive, harmful, defamatory or otherwise harmful to us or others; or (iv) you breach any other agreement with us or any other person.
EKWE INTELLECTUAL PROPERTY. You acknowledge that, as between you and Ekwe, Ekwe owns all right, title, and interest, including all intellectual property rights, in and to the Services, including all Samples, and, with respect to third-party data or information, the applicable third-party owns all right, title, and interest, including all intellectual property rights, in and to the third-party data, name, image, and likeness, and trademarks. Ekwe’s names and logos and all related product and service names, design marks, and slogans, including EKWE, are the trademarks or service marks of Ekwe. All rights are reserved. You are not authorized to use any Ekwe name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of Ekwe. All other trademarks, trade dress, images, photographs, and other works appearing in connection with the Services are the property of their respective owners. The entire contents and design of the Services are protected by U.S. and international copyright law. All rights regarding the Services and materials contained on or in the Services, including any and all technology, code, or design related to the Services, are either owned by Ekwe, are licensed to it, or are used with permission. Ekwe and its licensors, vendors, or other service providers retain and reserve all intellectual and proprietary rights to the Services. The Services are only for your personal use. You are expected to obey all copyright restrictions. Copying or storing of any content without the prior written permission from Ekwe or the intellectual property holder is prohibited. Please use the contact information below if you desire such permission or need more information.
PROHIBITED USES AND CONDUCT.
You may use the Services only for lawful purposes and in accordance with this Agreement.
You agree not to use the Services: (i) in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries); (ii) for the purpose of exploiting, harming, or attempting to exploit or harm any person in any way by exposing them to inappropriate content, facilitating harassment, or otherwise; (iii) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the content standards contained in this Agreement or published in connection with the Services; (iv) to transmit any illegal advertising or promotional material; (v) to impersonate or attempt to impersonate Ekwe, a Ekwe employee, another user, or any other person or entity; or (vi) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm Ekwe or users of the Services, or expose them to liability.
You agree not to: (i) use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring, scraping, or copying any of the material on the Services (including any Samples); (ii) use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in this Agreement, without our prior written consent; (iii) introduce to the Services or any Ekwe system any viruses, Trojan horses, worms, malware, ransomware, logic bombs, or other material that is malicious or technologically harmful; or (iv) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, any Ekwe accounts, the servers on which the Services is hosted or stored, or any server, computer, or database connected to the Services.
You are solely responsible for any liability associated with your use of the Services. You shall not, and are not authorized to, use the Services in any manner that violates any person’s rights or any applicable law.
USER CONTENT.
The Services allow Users to upload, post, or submit audio files and other information, such as Compositions (“User Content”) in a manner that is available to Ekwe and/or other Users. In submitting the User Content to the Services, you grant Ekwe and our affiliates, licensors, and service providers, and each of their and our respective licensees, successors, and assigns, a non-exclusive, sublicensable, transferable, perpetual, worldwide, royalty-free license to use, display, access, view, store, and/or download User Content, and post or forward User Content to others, for the purpose of providing you the Services, exercising our rights or obligations under this Agreement, or any other use described in our Privacy Policy.
You also acknowledge and agree that Ekwe does not control any User’s acts or omissions, or User Content submissions. We disclaim all warranties and liabilities for User Content. We are not responsible and disclaim all liability for any action taken by any third party with respect to your User Content.
You represent and warrant that you own or control all rights in and to the User Content (other than any Samples included in any Compositions) and have the right to grant the license granted above and that all of your User Content does and will comply with all applicable laws, rules, and regulations, and this Agreement.
You also represent and warrant that you have obtained all applicable consents and permissions needed to provide Ekwe with any User Content or other information provided by you, and that you have a lawful basis for providing such information to Ekwe, in connection with your use of the Services, including, without limitation, any personal information as defined under applicable law provided to Ekwe. You agree to cooperate with Ekwe and take such action as reasonably requested by Ekwe with respect to any information provided by you to Ekwe.
DO NOT UPLOAD OR SUBMIT INFORMATION TO THE SERVICES THAT YOU DO NOT HAVE PERMISSION OR THE RIGHT TO USE. THE UPLOAD OR SUBMISSION TO THE SERVICES OF ANY CONTENT THAT VIOLATES, OR IS ALLEGED TO VIOLATE, THE INTELLECTUAL OR PROPRIETARY RIGHTS OF ANY THIRD PARTY IS A MATERIAL VIOLATION OF THIS AGREEMENT.
You understand and acknowledge that you have full responsibility for your User Content, including its legality, reliability, accuracy, and appropriateness. Ekwe is not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other User of the Services.
For the purposes of this Agreement, “User Content” does not include any aggregated or statistical technical data related to your access or use of the App. Such data may be used by Ekwe to manage and improve the performance of its Services, for statistical analysis, and for research, commercial, and development purposes.
CONTENT STANDARDS. User Content must not:
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
Impersonate any person or misrepresent your identity or affiliation with any person or organization.
Give the impression that it emanates from or is endorsed by Ekwe or any other person or entity, if this is not the case.
Criticize Ekwe, the Services, or any Ekwe operational partner.
Ekwe makes disclaims all representations or warranties regarding the retention or backup of any User Content. You are solely responsible for the backup and any copies of any User Content.
STUDENT INFORMATION. To the extent that you provide, or facilitate the provision, of any information relating to students, including Education Records as defined by the Family Educational and Privacy Rights Act (20 U.S.C. § 1232g; 34 CFR Part 99) (“FERPA”), to Ekwe, you represent and warrant that you: (i) have complied, and will comply, with all applicable laws, rules and regulations applicable to you and such information; (ii) have obtained, and will obtain, all rights, consents (including prior consents), and permissions required to provide such information and Education Records to Ekwe; and (iii) have provided, and will provide, all notices with respect to such information as required by applicable law. You will ensure that all information held by Ekwe pertaining to any students, including any Education Records, is accurate and only provide to Ekwe (including in the form of User Content) the information that is necessary for Ekwe to receive in order to further the institutional service or function for which you are using the App and your educational purposes. You are solely responsible for maintaining a backup or copy of the entire contents of your, or your Authorized Users’, account(s), including all User Content and other information (including student information) provided, submitted, uploaded, or transmitted by you to Ekwe or the App, or created by you or your Authorized Users using the App. You acknowledge and agree that it is your, and, as applicable, the Educator’s and/or the School’s, sole responsibility to maintain and retain any student information, including Education Records, pursuant to and in accordance with any laws, rules, regulations, policies, or obligations applicable to you and/or your School. You have no right to make any claim against Ekwe in connection with the deletion (whether by Ekwe or a third party) of any User Content, account information, student information or other data associated with your use of the App.
FEEDBACK. Ekwe may solicit your feedback regarding your experience accessing or using the Services. The comments, information, and details you submit to us through surveys, reviews, or other forums regarding your experience accessing or using the Services, including without limitation any suggestions or recommendations regarding the Services’ features or functionality, including any improvements (“Feedback”) may be used by Ekwe without any obligation, limitation, attribution, or compensation to any party. You hereby assign to Ekwe all right, title, and interest, including intellectual property rights, in and to any ideas, inventions, know-how, concepts, techniques, or other concepts contained in the Feedback. For clarity, Feedback does not include User Content.
TERM.
License Term. The App may be offered on an annual subscription basis or for the term otherwise specified in the Order (“Term”). Any subscription is billed in advance on an annual basis (unless otherwise specified in the Order) and is non-refundable. Your agreement for purchasing a license becomes binding upon your purchase of access to the App via the Apple Store or Google Play Store or agreeing to the Order, as applicable.
Renewals. After each Term, the license will automatically renew for successive one-year periods, unless you cancel the Services before the current Term runs out. In the case of an Order, cancellation notice must be given at least thirty (30) days prior to the end of the current Term. Any licenses purchased for mobile applications via the Apple App Store or the Google Play Store have to be terminated via the Apple App Store or the Google Play Store for technical reasons. Termination must occur no later than 48 hours before the extension of the subscription. Instructions for canceling a subscription are available at https://support.apple.com/en-us/HT202039 (Apple) and https://support.google.com/googleplay/answer/7018481?hl=en&co=GENIE.Platform%3DAndroid (Google). The full amount for each renewal term will be charged to the payment method you have provided or is linked to your account on the first day of the renewal. You shall be responsible for any and all fees charged by Ekwe for the license granted under this Agreement and for any subsequent renewals. Upon terminating a subscription, your account, any Authorized User accounts, and the App will become unusable. Users are not entitled to any refund of fees. Ekwe is under no further obligations to you or your Authorized Users upon your termination of the subscription.
Free Trial. If you initially sign up for free trial, you must provide Ekwe a valid payment method (such as a credit card) to continue using the App at the end of the trial period. If you do provide a payment method in connection with your trial subscription, and you do not cancel the subscription before the free trial ends, you will be billed annually starting at the end of your free trial. If you do not provide Ekwe a payment method in connection with your free trial subscription, your subscription to the App will be terminated at the end of the free trial period and your account will be closed.
Ekwe has the right to cancel subscriptions at any time for any reason. If Ekwe cancels your subscription for a reason other than cause, you may request a refund from Ekwe by contacting us at the information provided below.
PAYMENT METHOD. In order to purchase a subscription to the Services, you may be asked to supply certain relevant information, including your credit or payment card number and expiration date or similar payment information, your billing address, and email. You represent and warrant that you have the right to use any credit or payment card or other payment mechanism that you submit in connection with the purchase of a subscription and that you have all authority necessary to purchase a subscription using the credit card or payment mechanism that you submit. By submitting such information, you grant Ekwe the right to provide such information to third parties for the purposes of facilitating your purchase. You acknowledge and agree that Ekwe is not responsible for how any third-party credit card or other payment method processor transmits, stores, uses or shares your information.
FUNCTIONALITY AND UPDATES. Ekwe reserves the right to change, suspend, or discontinue any aspect of the Services at any time, including availability of a feature, database, or content. We may from time to time in our sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
THIRD-PARTY SITES AND LINKS. Ekwe makes reasonable efforts to determine that other website owned or operated by third parties accessible via the Services (collectively, “Third-Party Websites”) are active and appropriate at the time the links to such Third-Party Websites are placed in the Services. Ekwe has no control over, and assumes no liability for, the continued existence of, or the material available on, any Third-Party Website. Should you discover that any link in the Services references a Third-Party Website that is no longer active or that contains inappropriate or irrelevant information, please notify us by sending an e-mail message to the address listed below. Links from the Services to Third-Party Websites do not constitute or imply an endorsement, sponsorship, or recommendation by Ekwe or any of its subsidiaries or affiliates of the third party, the Third-Party Website, or the resources, information, or content contained therein. Ekwe does not endorse or warrant, and is not responsible or liable for, any such Third-Party Website or the content thereon. Please review the applicable third party’s terms and conditions and privacy policy when interacting with or using any Third-Party Website.
USER DISPUTES. You are solely responsible for your interactions with other Users. We have no obligation to mediate or otherwise resolve disputes between Users and/or any third party.
CONSENT TO DOING BUSINESS ELECTRONICALLY. You hereby agree that we may deliver all notices, disclosures, documents, reviews, analyses, or other materials, and any and all other documents, information, and communication concerning you or Ekwe by means of email or by posting on the Website or App or by other means of electronic communication. Considering Ekwe operates principally on the internet, by accessing the Services, you hereby consent to transact business electronically and to receive electronically all disclosures, documents, communications, notices, contracts, and agreements arising from or relating in any way to your or our rights, obligations, or services under this Agreement or any other agreement between you and Ekwe.
INDEMNIFICATION. You agree to defend, indemnify and hold harmless Ekwe and its affiliates, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from your breach or violation of any representations, warranties, covenants, obligations, or other provisions set forth in this Agreement your use of the Services, or the failure to fulfill any obligations relating to your use of the Services, or your account, incurred by you or any other person using your account, including, but not limited to, any failure on your part to provide or update full and complete information in connection with your registration with the Services. We reserve the right, but not the obligation, to take over the exclusive defense and control of any claim for which we are entitled to indemnification under this Agreement. In such event, you hereby agree to cooperate and help us in asserting any defenses to such claims.
WARRANTY DISCLAIMERS. Ekwe disclaims any and all liability for the acts, omission, and conduct of any Users or third parties in connection with or related to your use of the Services. Users are completely responsible for their use of the Services and any linked sites therein. Users’ sole remedy against Ekwe for dissatisfaction with the Services or any content is to stop using the Services or any such content at once. This limitation of relief is a part of the bargain between the parties. THE SERVICES MAY CONTAIN TECHNICAL ERRORS, TYPOGRAPHICAL MISTAKES, OR OTHER INACCURACIES. UNLESS OTHERWISE EXPRESSED, THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTY AND EKWE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE ACCURATE, ADEQUATE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION OF LIABILITY. IN NO EVENT WILL EKWE OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (v) COST OF REPLACEMENT GOODS OR SERVICES; OR (vi) DAMAGE OR INJURY TO PERSON OR PROPERTY, IN EACH CASE REGARDLESS OF WHETHER EKWE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EKWE’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF: (i) THE TOTAL FEES PAID BY YOU TO EKWE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, OR (ii) ONE-HUNDRED DOLLARS ($100).
GOVERNING LAW. These Agreement shall be construed and governed in accordance with the laws of the State of Minnesota, without giving effect to any choice or any conflicts of law provisions or rules. Any action relating to this Agreement shall be brought in the federal or state courts located in the City of Minneapolis, State of Minnesota. You hereby agree to personal jurisdiction and submit to venue by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
TERMINATION OF USE. You agree that we may, at our sole discretion, limit, suspend, or terminate your access to all or part of the Services without notice if we suspect illegal, fraudulent, or abusive activity. Such activity (including your personal information) may be referred to appropriate law enforcement authorities. Upon suspension or termination of this Agreement, your right to access or use the Services will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any account or login information, in accordance with this Agreement.
GEOGRAPHIC LOCATION. Ekwe is based in the United States and our offering of the Services is not intended to subject us to any laws in any jurisdiction outside of the United States. Be aware that access of the Services may result in the transfer of your information to servers located in the United States. If you access the Services from outside of the United States, you consent to all such transfers. You also do so on your own initiative and are responsible for compliance with local laws. We make no claims that the Services or any of its content complies with any laws outside of the United States.
MISCELLANEOUS.
These Agreement, any Order, and the Privacy Policy constitute the sole and entire agreement between you and Ekwe regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the Services.
It is expressly agreed that Ekwe and all Users shall be independent contractors of each other and that the relationship between the parties shall not constitute a partnership, joint venture or agency. Neither Ekwe nor any User shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party.
In addition to this Agreement, you may enter into other agreements with us that will govern your use of the Services. If there is any contradiction or conflict between this Agreement and another agreement you enter into with us applicable to the Services, the other agreement shall take precedence in relation to the specific aspects of the Services governed by such agreement.
If any part, term, or provision of this Agreement is held to be illegal, in conflict with any law, or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular part, term, or provision held to be illegal or invalid.
The provisions of this Agreement shall survive any expiration or termination of this Agreement or completion of any services hereunder to the extent necessary or appropriate to carry out the intent of such provisions.
We may assign our rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. You may not assign rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without our prior written consent.
The failure by us to enforce any right or provision of this Agreement will not prevent us from enforcing such right or provision in the future.
CONTACT US.
If you have questions regarding this Agreement or the Services, please contact us by e-mail at info@ekwe.app or by using the contact information provided below:
Licensing and Privacy
Ekwe.app LLC,
1817 Knox Ave S.,
Minnepolis,MN, 55403, USA
COPYRIGHT POLICY.
Ekwe takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Rights Coordinator
Ekwe.app LLC
1817 Knox Avenue South
Minneapolis, MN 55403
[+1 612-249-6955
Rights@ekwe.app
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
If you believe that material you posted on the Services was removed, or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a "Counter Notice") by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
Your physical or electronic signature.
An 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 disabled.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided the Services with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.