lTerms of Service

Eonca,

Last Updated: Now 13, 2024

THESE TERMS OF SERVICE (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN Eonca, INC. (“Eonca”) AND YOU, EITHER AS AN INDIVIDUAL OR AN ENTITY (“YOU” OR “YOUR”), REGARDING THE SERVICES (AS DEFINED BELOW). BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICES, YOU EXPRESSLY: (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY, COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (EACH AN “ENTITY”), YOU ARE ENTERING INTO THIS AGREEMENT FOR THAT ENTITY AND YOU REPRESENT TO Eonca THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, AND YOU AGREE TO BE BOUND TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” OR “YOUR” AS USED HEREIN WILL ALSO REFER TO SUCH ENTITY AND ITS AFFILIATES. 
 

ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 13, YOU AGREE THAT DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THIS AGREEMENT, YOU AND Eonca ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. 
 

PARENTAL CONSENT. IF YOU ARE UNDER 18 YEARS OF AGE (A “MINOR”), YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE THE SERVICES, AND YOU MAY ONLY USE THE SERVICES UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN WHO ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT ON YOUR BEHALF, INCLUDING ALL DISCLAIMERS, WAIVERS AND RELEASES. IF YOU ARE A PARENT OR THE LEGAL GUARDIAN OF A MINOR ACCEPTING THIS AGREEMENT ON THE MINOR’S BEHALF, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE MINOR TO THIS AGREEMENT AND YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT.
 

1. General Conditions

1.1

To use the on-line custom design and photo book service accessed at www.eonca.com (the “Site”) and the group messaging application HeyFam (“HeyFam,” the Site and HeyFam together, the “Services”), You must register an account with Eonca.

1.2

You may connect to the Services using any Internet browser and/or a Eonca mobile application (an “App”). You must be 18 years old to use the Services or a Minor with the consent of a parent or legal guardian. By agreeing to this Agreement, You represent and warrant to us that: (a) You are at least 18 years old or a Minor with the consent of your parent or legal guardian; (b) You have not previously been suspended or removed from the Services; and (c) Your registration and Your use of the Services is in compliance with any and all Laws (defined below).

1.3

 

1.4

 

1.5

Eonca will employ reasonable measures to provide You with access to the Services. However, there will be occasions when the Services will be interrupted for maintenance, upgrades for emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond Eonca’ reasonable control. When possible, Eonca will take reasonable steps to minimize such disruptions within Eonca’ reasonable control.

1.6

Eonca may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Services, or suspend or discontinue the Services or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Services or otherwise), without notice or liability to You or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Services, Eonca will use reasonable efforts to provide You with notice as soon as commercially practicable under the circumstances). You agree that Eonca shall not be liable to You for any modification, suspension or discontinuance of the Services or any features or functions thereof.

1.7

The Services may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other third-party software or materials, which in each case is embedded in the Services or provided by Eonca in connection with the Services (“Separately Licensed Software”). Your use of Separately Licensed Software is governed by the separate license terms specified by Eonca. THIS AGREEMENT DOES NOT APPLY TO SEPARATELY LICENSED SOFTWARE, AND Eonca HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY SEPARATELY LICENSED SOFTWARE AND DISCLAIMS ANY LIABILITY TO YOU OR ANY THIRD PARTY BASED ON ANY CLAIMS ARISING OUT OF USE OF SEPARATELY LICENSED SOFTWARE. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement.

2. Privacy and Use of Data

2.1

All information Eonca collects through the Services is subject to Eonca’ Privacy Policy available at eonca.com/privacy-policy.

2.2

Eonca or third parties may make available third-party products or services for use in connection with the Services. Your acquisition of any such third-party products or services, and any exchange of data between You and any third party, is solely between You and such third party. The Services may contain links to other websites or services offered and operated by third parties. Such links are provided for Your convenience only, and if You access any other websites or services linked to the Services, You do so at Your own risk. Third-party websites are not under Eonca’ control, and Eonca is not responsible for their content. Such third-party websites and services are subject to their own terms of use and privacy policies. Links to third party websites or services do not constitute Eonca’ endorsement of any content, advertising, products, services, or other materials on or available from such websites or services.

2.3

If You provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Services to Eonca, You grant Eonca and other authorized entities a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Services, other related technologies and/or for any other purpose. Eonca will not be obligated to implement any Feedback or correct any defects, bugs or errors in the Services identified in the Feedback or otherwise.

2.4

Eonca may: (a) compile statistical and other information related to the performance, operation, and use of the Services, and (b) use any data or information that You upload or input into the Services or otherwise make available to Eonca or data that is generated and made available to You by the Services through the use of the data provided by You (“Your Data”) in aggregated form to create statistical analyses and for research and development purposes, (these sections (a) and (b) collectively, “Services Analyses”). Eonca may use Services Analyses for its business purposes; however, Services Analyses shall not incorporate Your Data in a form that could serve to identify You or any individual. Services Analyses do not constitute Your Data, and Eonca shall retain all right, title, and interest in and to Services Analyses, including all Intellectual Property Rights (defined below) therein and thereto.

2.5

 

3. Rights and Restrictions

3.1

You may use the Services solely for its intended purpose as set forth on the Site, an App, and in any documentation provided by Eonca for the use of the Services. You may not: share Your account information, including Your username and password (“Registration Data”) for the Services with any other individual or allow any third party to access or use the Services (except that You are permitted to engage with other individuals who also hold a valid right to access and use the Services).

3.2

 

3.3

Except and solely to the extent such a restriction is impermissible under applicable law, You may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Services; (b) make modifications to the Services; (c) access the Services in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (d) integrate or link to any open source software or freeware with the Services; (e) remove any proprietary notices, labels or marks from the Services; (f) interfere with or circumvent any feature of the Services, including any security or access control mechanism; or (g) permit third parties to do any of the foregoing. If You are prohibited under applicable Law from using the Services, then You may not use them.

4. Payment Terms

4.1

HeyFam and the Site are provided free of charge. Certain features of the Site may require You to pay fees. Before You pay any fees, You will have an opportunity to review and accept the fees that you will be charged. All fees are in the currency specified at the time of payment and are non-refundable unless otherwise specifically provided for in this Agreement.

4.2

Your use of the Site is free of charge. Photo books may be purchased on a one-time basis or on an on-going basis and You will be charged upon the completion of each photo book at Eonca’ then-current pricing. 

4.3

Subscriptions
 

a)

You may also purchase monthly or annual subscriptions for photobooks through the Site or the Eonca iOS and Android applications (“Subscriptions”). Further details about Subscriptions and FAQs may be found on the Site.  
 

b)

The Site includes the option to purchase certain Subscriptions with automatically recurring payments for periodic charges. The Subscription will begin on the date when You purchase Your first Subscription and continue until the end of the calendar month in which You purchase Your first Subscription (for monthly Subscriptions) or end of the calendar quarter in which You purchase Your first Subscription (for quarterly Subscriptions) (or other applicable period as specified during your Subscription purchase process) (such period, the “Initial Subscription Period”), and will automatically renew for successive calendar months (for monthly Subscriptions) (starting on the last day of each calendar month), calendar quarters (for quarterly Subscriptions) (starting on the last day of each calendar month), or other successive applicable periods as specified during your Subscription purchase process (each, a “Renewal Period”) unless You cancel the Subscription, or we terminate it. Any Renewal Period or the Initial Subscription Period are a “Subscription Period” and the Initial Subscription Period together with all Renewal Periods, if any, are the “Subscription Term.”
 

c)

You will be charged at the time You first purchase a Subscription and at the beginning of each Renewal Period (if any) (the “Subscription Billing Date”) for all applicable fees and taxes for the next Subscription Period.  
 

d)

If You activate a Subscription, then You authorize Eonca or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription, all accrued sums on or after each Subscription Billing Date. For information on the “Subscription Fee”, please see our pricing page. Eonca or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with Your account or that You otherwise provide to us. You may cancel the Subscription by cancelling the Subscription in Your account or contacting us at info@eonca.com. 
 

4.3

Photo Book Credits
 

a)

Certain Subscriptions may include the option for you to create specified products (each, a “Subscription Photo Book”) on a specified cadence during the applicable Subscription Term (e.g., one Monthly Mini or one Monthbook per month of the Subscription Term). During the term of Your Subscription, if You choose not to create a Subscription Photo Book in the month (or other specified period) in which it became available to you as part of the applicable Subscription, Subscription Fees will continue to be due and payable for as long as your Subscription remains in effect, however You will receive a credit to create the applicable Subscription Photo Book(s) after the month (or other specified period) during which it became available to you (each, a “Photo Book Credit”) in the amount of Your monthly payment or prorated Subscription Fee. 
 

b)

Photo Book Credits will expire 13 months from the applicable Subscription Billing Date. If You cancel Your Subscription, You will have 90 days from the cancellation date to use the Photo Book Credits in Your account. After 90 days, Your previously purchased Photo Book Credits and unused Photo Book Credits will expire. If you choose to delete your Account, any outstanding Photo Book Credits in Your account at the time of deletion will expire immediately.

 

c)

Photo Book Credits have no cash value or any other value outside of the Services and are not redeemable for cash. For the avoidance of doubt, Photo Book Credits do not operate or serve as stored value facilities in any way. You may not transfer, trade, gift or otherwise exchange Photo Book Credits. Note that Photo Book Credits are separate from our gift cards, which may also be purchased on the Site. Unlike Photo Book Credits, our gift cards never expire.
 

4.5

All Subscription Fees will be charged to the credit card associated with Your account or that You otherwise provide to us. If Your card is initially declined, we will retry payment on the card for 28 days. After 28 days, if Your credit card cannot be charged, Eonca will retry to submit the charge with another credit card that You have on file. If You do not have another credit card on file with Eonca, Eonca reserves the right to terminate your access to the Site and any current Subscription and delete Your account and any information or User Content (defined below) associated with Your account without any liability to You. In addition to outstanding Subscription Fees, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
 

4.6

The Subscription Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties. 
 

4.7

Eonca reserves the right to determine pricing for the Site. Eonca will make reasonable efforts to keep pricing information published on the Services up to date. We encourage You to check our pricing page periodically for current pricing information. Eonca may increase the Subscription Fees from time to time, in its sole discretion, including additional fees or charges, if Eonca gives You advance notice of changes before they apply. Eonca, at its sole discretion, may make promotional offers with different features and different pricing to any of Eonca’ customers. These promotional offers, unless made to You, will not apply to Your offer or this Agreement. In addition, Eonca reserves the right to charge for use of Services that are currently available free of charge. You will not be charged for using any Services unless You have opted in to pay for such Services.

5. Termination

5.1

This Agreement will remain in effect until: (a) Eonca terminates Your rights under this Agreement, which it may do immediately, without notice or liability, if You fail to comply with any term(s) of this Agreement; or (b) You cancel Your access to the Services, whichever occurs first. You may terminate Your access to the Site within the account settings or by submitting a request to Eonca’ customer support department. You may terminate Your access to HeyFam by submitting a request to Eonca’ . 

5.2

You acknowledge that if You breach this Agreement, Eonca may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond. Upon termination of this Agreement: (a) You agree to immediately cease using the Services; (b) Your access to the Services will be automatically terminated and Registration Data will be removed; (c) Eonca may immediately delete or destroy all User Content and Your Data, subject to requirements of Law; (d) You must pay Eonca any unpaid Subscription Fees and other amounts incurred prior to the effective date of termination; and (e) Sections 2, 5.2, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 will survive.

5.3

If Your account has been inactive for one year or more, Eonca will consider Your account terminated, and Eonca reserves the right to automatically delete all photo books, other User Content, and Your Data from Your account. 

6. Intellectual Property

6.1

 

7. User Content

7.1

Certain features of the Services may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Services, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). 

7.2

You will remain the sole and exclusive owner of all right, title, and interest in and to all of Your User Content (including photos and/or videos), and all Intellectual Property Rights therein and thereto, subject to any licenses granted herein to Eonca. By Posting User Content to or via the Services, You hereby grant to Eonca a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in this Agreement, and distribute Your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting Your User Content and from Eonca’ exercise of the license set forth in this Section.

7.3

If You Post a photograph or image to the Services that includes one or more persons, You hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Services, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.

7.4

You must not Post User Content if You are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Eonca disclaims any and all liability in connection with User Content. You are solely responsible for Your User Content and the consequences of providing User Content via the Services. By providing User Content via the Services, You affirm, represent, and warrant to us that:

a)

You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Eonca and users of the Services to use and distribute Your User Content as necessary to exercise the licenses granted by You in this Section, in the manner contemplated by Eonca, the Services, and this Agreement;

b)

 

c)

Your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

7.5

Eonca is under no obligation to edit or control User Content that You or other users Post and will not be in any way responsible or liable for User Content. Eonca may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Services, You will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy You have or may have against Eonca with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Eonca does not permit infringing activities on the Services.
 

7.6

Eonca does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that Eonca reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time Eonca chooses to monitor the content, then Eonca still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Eonca may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Services without any liability to the user who Posted such User Content to the Services or to any other users of the Services. 

8. Intellectual Property Protection

8.1

Respect of Third-Party Rights. Eonca respects the Intellectual Property Rights of others, takes the protection of Intellectual Property Rights very seriously, and asks users of the Services to do the same. Infringing activity will not be tolerated on or through the Services.
 

8.2

 

Eonca,

 

8.3

Procedure for Reporting Claimed Infringement. If You believe that any content made available on or through the Services has been used or exploited in a manner that infringes an Intellectual Property Right You own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:

a)

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
 

b)

a description of the copyrighted work or other Intellectual Property Right that You claim has been infringed;

c)

a description of the material that You claim is infringing and where it is located on the Services;

d)

 

e)

 

f)

 

Your Notification of Claimed Infringement may be shared by Eonca with the user alleged to have infringed a right You own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and You consent to Eonca making such disclosures. You should consult with Your own lawyer or see 17 U.S.C. § 512 to confirm Your obligations to provide a valid notice of claimed infringement.
 

8.4

Repeat Infringers. Eonca’ policy is to: (a) remove or disable access to material that Eonca believes in good faith, upon notice from an Intellectual Property Rights owner or authorized agent, is infringing the Intellectual Property Rights of a third party by being made available through the Services; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Services by any user who repeatedly or egregiously infringes other people’s copyright or other Intellectual Property Rights. Eonca will terminate the accounts of users that are determined by Eonca to be repeat infringers. Eonca reserves the right, however, to suspend or terminate accounts of users in our sole discretion. 

8.5

Counter Notification. If You receive a notification from Eonca that material made available by You on or through the Services has been the subject of a Notification of Claimed Infringement, then You will have the right to provide Eonca with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Eonca’ Designated Agent through one of the methods identified in Section 8.2, and include substantially the following information:

a)

Your physical or electronic signature;

b)

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;

c)

 

d)

 

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.

8.6

Reposting of Content Subject to a Counter Notification. If You submit a Counter Notification to Eonca in response to a Notification of Claimed Infringement, then Eonca will promptly provide the person who provided the Notification of Claimed Infringement with a copy of Your Counter Notification and inform that person that Eonca will replace the removed User Content or cease disabling access to it in 10 business days, and Eonca will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Eonca’ Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Eonca’ system or network.
 

8.7

False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Eonca] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Eonca reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the Law.

9. Disclaimer of Warranties

9.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. Eonca EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

9.2 Eonca DOES NOT WARRANT THAT THE SERVICES WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. Eonca SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICES, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICES, FAILURE OF THE SERVICES, OR OTHERWISE RELATING TO THE SERVICES.

 

9.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 9 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Eonca DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT Eonca IS PROHIBITED FROM DISCLAIMING UNDER LAW.

10. Limitation of Liability

 

10.2 ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICES, THIS AGREEMENT OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

11. Indemnification

 

12. Export Control Laws

 

13. Dispute Resolution and Arbitration

13.1

Except as described in Section 13.2 and 13.3, You and Eonca agree that every dispute arising in connection with this Agreement, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Eonca ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
 

13.2

 

13.3

 

13.4

This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at, or by contacting Eonca.
 

13.5

 

13.6

 

13.7

Except as provided in Section 13.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards You an amount higher than the last written settlement amount offered by Eonca before an arbitrator was selected, Eonca will pay to You the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
 

13.8

 

13.9

 

13.10

If Section 13.8 or the entirety of this Section 13 is found to be unenforceable, or if Eonca receives an Opt-Out Notice from You, then the entirety of this Section 13 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to this Agreement.
 

14. Governing Law; Venue

 

15. Complete Agreement

This Agreement constitutes the entire agreement between You and Eonca with respect to Your use of the Site and the Services and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter. Eonca reserves the right, in its sole discretion, to modify this Agreement at any time upon notice to You, including by posting a revised version of this Agreement on the Site. Any such modified Agreement will be effective immediately upon being made available to You, and your continued use of the Services thereafter constitutes Your affirmative acceptance of such modified Agreement. Otherwise, the terms of this Agreement may not be modified, in whole or in part, except by written agreement executed by an authorized signatory of Eonca. If You are dissatisfied with the terms of the Agreement or any modifications thereof, then You agree that Your sole and exclusive remedy is to discontinue any use of the Services.

16. Miscellaneous

16.1

Any remedy of Eonca set forth in this Agreement is in addition to any other remedy afforded to Eonca under applicable Law or otherwise. Eonca’ failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or by disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of Your rights or obligations under this Agreement without Eonca’ prior written consent. Any purported assignment in violation of this Section 16.1 shall be void. Eonca may freely assign or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall apply to, and be binding upon, the approved successors and permitted assigns of the parties hereto. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This Agreement does not and is not intended to confer any rights or remedies upon any person other than You and Eonca. For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation.

16.2

Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.

16.3

 

16.4

We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.

16.5

 

17. Notice Regarding Apple

 

18. Communications and Contacting Eonca

Communications from Eonca to You may be by electronic means. You hereby consent to receiving communications from Eonca in electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Eonca provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any nonwaivable rights.

The Services may include certain communications from Eonca, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of Eonca’ policy to provide You total privacy, Eonca also provides You the option of opting out from receiving newsletters from us. However, You will not be able to opt-out from receiving service announcements and administrative messages.