(Last modified September 21, 2020)
- Introduction, Acceptance, Definitions, and Modifications
Welcome to Eno! We hope you will enjoy and appreciate using our “Services”, which may be visiting or using the website at https://enophone.com/ or any subdomain thereof (the “Website”), or using the Eno headphone (the “Enophone”) or the Eno application (the “Enowork App”) on your desktop or laptop computer (“Computer”).
The Services are owned and operated by Mindset Innovation Inc., the company that owns and operates the Eno brand (“Eno”), a Canadian corporation located in Montréal, Canada at the address listed below. Where the present TOU refer to “Eno” they may refer to Mindset Innovation Inc. and / or its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to Eno and / or its Representatives. In these TOU, a Services user may be referred to as “you” or “your”. When a Services user is logged in to the Enowork App, he, she or they may be referred to as a “Logged-in User”.
Eno reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL or in the Enowork App. It is your responsibility to check the TOU periodically for changes. Your use of the Services following the posting of any changes to the TOU constitutes acceptance of those changes. If we make any substantial changes to the TOU that materially affect your legal relationship with Eno, we will use commercially reasonable efforts to notify you by posting a prominent notice on the Enowork App, or if you have an Enowork App account, by email to the email address associated with your account.
- Contacting Us
If you have any questions about the TOU, please contact:
Eno Legal Services
Eno Legal Services
500 St-Jacques Street, Suite 410
H2Y 1S1, Canada
If you have any questions regarding the Services or your account, please contact firstname.lastname@example.org.
- General Code of Conduct for Use of the Services
In addition to the more specific rules found elsewhere in these TOU, you agree that by interacting with the Services in any way, you agree to:
- Not use the Services in any manner that in any way violates these TOU or any other applicable policy posted on or in the Services by Eno;
- Not use the Enowork App or the Website in any manner that violates any intellectual property rights of Eno or any third party;
- Not use the Enowork App or the Website in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
- Not use the Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Eno or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether personal data or not) of Eno, other Services users or account holders, or any other third party;
- Not: (1) take any action that imposes or may impose (as determined by Eno in its sole discretion) an unreasonable or disproportionately large load on Eno’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Services or any activities conducted on or via the Enowork App or the Website; (3) bypass any measures Eno may use to prevent or restrict access to the Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page or portion of the Enowork App or the Website; or (5) harvest or scrape any content from the Enowork App or the Website in an unreasonable manner;
- Not take any action or use any process that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising or other promotions in connection with the Services;
- Not use the Services to advertise or promote products or services that are not expressly approved in advance in writing by Eno, or as permitted by these TOU;
- Not interfere with any third party’s use or enjoyment of the Services;
- Not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party;
- Not attempt to do any of the foregoing prohibitions;
- Use the Services in good faith, and in compliance with all applicable local, provincial or state, national, and international laws.
- The Enophone
The Enophone is a set of noise-cancelling headphones built to help you stay focused at work. The Enophone is designed to be one-size-fits-all and Eno does not guarantee that the Enophone will provide every Services user with the same level of fit and comfort. The Enophone’s built-in sensors measure electrical activity in your brain, which allows for the tracking of your focus level, productivity habits and brain health. Without limiting the generality of the Disclaimers and Limitation of Liability sections elsewhere in these TOU, Eno in no way guarantees that the Enophone is meant to act as a treatment for any medical condition or to provide you with medical information about the operation or functionality of your brain. Eno does not guarantee (i) any specific level of improved productivity from the use of the Enophone; or (ii) any specific degree of accuracy with respect to the data generated by the Enophone and displayed in the Enowork App.
Eno offers a 30-day guarantee on the Enophone, meaning that you have 30 days from the date of purchase to test out the Enophone and to return it to us for a full refund, no questions asked. This 30-day guarantee only applies to Services users who have purchased the Enophone since August 1, 2020. Any Enophone purchased prior to August 1, 2020 is not eligible for the 30-day guarantee. Following this 30-day period, Eno does not accept any returns or refunds of the Enophone.
Eno also offers a limited manufacturers’ 1-year warranty from the date of purchase on the Enophone with respect to any manufacturing failures or defects. This 1-year warranty applies to all Services users, regardless of the time and source of purchase. Please contact Eno at email@example.com for additional information on the guarantee and warranty, or to activate either, as required.
Quebec Legal Warranty: If you are a resident of the province of Quebec, the Quebec Consumer Protection Act provides Quebec consumers with a warranty on all goods purchased or leased from a merchant. The goods purchased must be usable: (i) for the purposes for which they are ordinarily used (Section 37 of the Act); and (ii) in normal use for a reasonable length of time, which may vary according to the price paid, the terms of the contract and the conditions of use (Section 38 of the Act). For more information on this legal warranty, go to the website of the Office de la protection de la consommateur at www.opc.gouv.qc.ca.
- Computer Requirements
In order to use the Enowork App, you will be required to have a Computer that meets these minimum requirements: a Mac running MacOSX 10.9+ (Mavericks) and above, or a PC running Windows 7 and above. Additionally, your Computer will also be required to run Bluetooth 4.0 (or any newer iteration of Bluetooth). Notwithstanding the foregoing, your Computer may not have the required hardware or software to run the Enowork App. Eno and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your inability to use the Enowork App because of your Computer not having sufficient hardware or software to use the Enowork App, and disclaims any responsibility in this regard.
- Use of Application
a. The Enowork App is licensed, not sold. Eno grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use the Enowork App solely and exclusively for your personal use on your Computer, or the use of any other third party with access to the Computer that you control and with your permission, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for the MacOS Enowork App or the Microsoft Usage Rules for Digital Goods for the Windows Enowork App. The Mac App Store or Microsoft Store or any other distributor for apps may be referred to in these TOU as a “Third-Party Application Distributor”.
b. You may not use the Enowork App in any manner that could damage, disable, overburden, or impair the Enowork App (or servers or networks connected to the Enowork App), nor may you use the Enowork App in any manner that could interfere with any other party’s use and enjoyment of the Enowork App (or servers or networks connected to the Enowork App).
c. You agree that you are solely responsible for (and that Eno has no responsibility to you or to any third party for) your use of the Enowork App, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which Eno may suffer) of any such breach. Where a third party uses the Enowork App on your Computer with your permission, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility. Where a third party gains control of your Computer without your permission, we strongly suggest taking action (especially a remote wipe or other procedure to lock out your Computer) as Eno cannot be held responsible for any misuse of, or damage to, your Computer (whether in relation to the Enowork App or not) in such circumstances.
- Accessing and Downloading the MacOS Enowork App from the Mac Store, and Related Acknowledgements
a. You acknowledge and agree that (i) these TOU are concluded between you and Eno only, and not Apple, and (ii) Eno, not Apple, is solely responsible for the MacOS Enowork App and content thereof. Your use of the MacOS Enowork App must comply with the Apple Media Services Terms and Conditions, which you are responsible to review from time to time.
b. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the MacOS Enowork App.
c. Apple will have no warranty obligation whatsoever with respect to the MacOS Enowork App. As between Eno and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Eno, or as further specified and limited hereinafter.
d. You and Eno acknowledge that, as between Eno and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the MacOS Enowork App or your possession and use of the MacOS Enowork App, including, but not limited to: (i) product liability claims; (ii) any claim that the MacOS Enowork App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and Eno acknowledge that, in the event of any third-party claim that the MacOS Enowork App or your possession and use of the MacOS Enowork App infringes that third party’s intellectual property rights, Eno, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified in section 6 above and elsewhere in this TOU.
f. You and Eno acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOU as related to your license of the MacOS Enowork App, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the MacOS Enowork App against you as a third-party beneficiary thereof.
g. You acknowledge that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. Without limiting any other of these TOU, you must comply with all applicable third-party terms of agreement when using the Enowork App.
i. You acknowledge that updates to the MacOS Enowork App are subject to the approval of Apple, and Eno and its Representatives shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.
a. Accounts and Passwords
In order to be able to use the Enophone in connection with the Enowork App, or simply to use the Enowork App itself, you will be required to create an account. Accounts are available to anyone who downloads the Enowork App from a Third-Party Application Distributor who provides the requisite information, subject to the restrictions and conditions as outlined elsewhere in these TOU. Accounts may be approved or rejected by Eno, which shall be at our sole discretion.
As part of the account registration, you may be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. You are responsible for maintaining the confidentiality of your password and are responsible for all activities that occur under your account, whether by you or any third party. You agree to immediately notify us of any unauthorized use of your account or any other breach of security regarding your account.
Eno reserves the right to suspend or terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU, as more fully described hereinbelow.
b. Age Requirements
In order to create an account with the Enowork App, you affirm that you are at least sixteen (16) years of age or over, or the age of majority in the jurisdiction in which you reside and from which you access the Services where the age of majority is greater than sixteen (16) years of age.
c. Account Information
By submitting Account Information, you represent and warrant that the Account Information is true and accurate to the best of your knowledge. Submitting false or misleading Account Information may result in you being banned from using the Services, at our sole discretion.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. Eno and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your Account Information and accessing your account through any means, and disclaims any responsibility in this regard.
- Proprietary Rights and User Content Rights
a. Intellectual Property Rights
You acknowledge that: (a) the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) Eno, its Representatives and/or third parties (via license) own all right, title and interest in and to the Services and content that may be presented or accessed through the Services (except for User Content as defined below), including, without limitation, all Intellectual Property Rights therein and thereto. All rights not specifically granted under these TOU are reserved to Eno and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.
You agree that you will not, and will not allow any third party, to: (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Services, or content that may be presented or accessed through the Services for any purpose, unless otherwise permitted by these TOU or the functionalities of the Services; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Services; or (iii) remove, obscure, or alter Eno’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services.
The content, arrangement and layout of the Services, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to Eno, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Eno, or as permitted by the functionality of the Services or these TOU. Any unauthorized use of the content, arrangement or layout of the Services, Computer Code, images, logos, videos, audio or trademarks found on the Services or any portion of or derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Eno may take action accordingly.
b. Submitted Information
If you choose to communicate to Eno (via any means) suggestions for improvements to the Services or any idea or proposal related to Eno or its businesses or properties (collectively, “Feedback”), Eno shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Eno and waive in favor of Eno, its successors and assigns all your moral rights in the Feedback; and agree to provide Eno such assistance as Eno may require to document, perfect, and maintain Eno’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Eno, you are not entitled to any compensation or reimbursement of any kind from Eno under any circumstances.
c. User Content Policy
As a visitor of the Website or as a Logged-in User, you may use the Enowork App or the Website to create and submit text, including but not limited to comments and posts. All of the foregoing shall be deemed “User Content”. By creating, submitting and / or uploading User Content, you agree to be bound by Eno policy for User Content as described in this section (the “User Content Policy”).
When you submit User Content, you acknowledge and agree to the following:
(i) User Content submitted or displayed by you does not violate any intellectual property right or other proprietary right of a third party. Without limiting the generality of the foregoing, you acknowledge that any User Content submitted or displayed is your own original works, or works for which you have been granted a valid license to reproduce or display. You affirm, represent and warrant that: (1) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Eno to use all intellectual property rights and other proprietary rights in and to the User Content (or the individual constituent elements thereof) as set out herein; and (2) have all necessary consents to collect, use and disclose any personally identifiable information and images (of yourself or third parties) contained or displayed in the User Content to enable inclusion and use of the User Content in the manner contemplated by the Enowork App, the Website and these TOU;
(ii) You retain all of your ownership rights in the User Content you submit or display. However, by submitting User Content to Eno, you hereby grant Eno a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, translate, reproduce, distribute, display, and / or perform and otherwise fully exploit the User Content in connection with the Enowork App and the Website and / or Eno’s (and its successors’ and affiliates’) business or activities, including without limitation for promoting and redistributing part or all of the Enowork App or the Website (and derivative works thereof) in any media formats and through any media channels without any compensation to you. You understand and agree that Eno may retain, but not display or distribute, server copies of User Content that have been removed or deleted;
(iii) You also hereby waive any moral rights you may have in your User Content and grant other users of the Enowork App or the Website a non-exclusive license to access your User Content;
(iv) The licenses granted by you in the previous two paragraphs with respect to the User Content are perpetual and irrevocable, and apply throughout the world and in any and all media as applicable;
(v) You will not upload or display any User Content that is unlawful, such as User Content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortious. Furthermore, you will not upload or display any User Content that is racist, sexist, homophobic, or otherwise offensive to any minority or group; contains any adult content or political militancy; or upload or display any User Content that contains any viruses, mass mailing, chain mailing or any other form of spam;
(vi) You will not include in User Content links to any third-party website that is a spam or phishing website, or to any website that may violate any applicable law.
Where you are accessing or downloading User Content, you acknowledge that any use of User Content accessed or downloaded by you while using the Enowork App or the Website is at your own risk and you will be solely responsible for any damage or loss to you or any third party arising therefrom, and Eno disclaims any responsibility in this regard.
If you as a Website visitor believe that a user has posted User Content that violates these TOU, please contact us at firstname.lastname@example.org so that we may conduct an inquiry. Eno retains absolute discretion whether to remove or modify any User Content or take any other action pursuant to your report.
Depending on the User Content, User Content may or may not be edited, curated or otherwise modified or checked by Eno prior to posting or display. Eno reserves the right, in its sole discretion, to refuse to display any User Content, or to remove or modify immediately and without notice any User Content that violates the User Content Policy, or for any other legitimate reason.
Eno and its Representatives will not be held liable for any damages, pecuniary or otherwise, to you or any third party arising from your submission or use of User Content, whether it violates the User Content Policy or not, our removal or modification thereof, and disclaims any responsibility in this regard. To the fullest extent permitted by law, Eno assumes no liability or responsibility to any person with respect to any User Content including, but not limited to, defamation, errors, obscenity, falsehoods or omissions that may be encountered within any User Content.
- External Links
In no way will Eno be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Enowork App or the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
- Interruption of Service
From time to time, the Enowork App or the Website (or any portion thereof) may be unavailable for brief periods of time for maintenance and / or modifications to the Enowork App or the Website. While we will endeavour to make this unavailability as brief as possible, Eno and its Representatives shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Enowork App or the Website, and disclaims any responsibility thereto.
- Termination of the Services and the TOU
Eno may also, in its sole discretion and at any time, discontinue providing the Enowork App or the Website, or any part thereof, with or without notice. You agree that Eno and its Representatives shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Enowork App or to the Website, or from Eno’s termination of the Enowork App or the Website or any part thereof.
Termination of the Enowork App or the Website or your access to the Enowork App or the Website shall terminate the present TOU as between you and Eno. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, the intellectual property provisions, disclaimers, indemnity and limitations of liability.
- Disclaimer of Warranties
You expressly understand and agree that your use of the Services, the information thereon (whether provided by Eno or third parties) or any activity arising from your use of the Services or the information thereon or the materials downloaded therefrom is at your sole risk. The Services, any materials downloaded therefrom, or any third party materials, are provided on an “as is” and “as available” basis, and you will be solely responsible for any damage to your Computer or loss of data that results from the download, stream or access of any material obtained through the use of the Services or any other functionalities of the Services, or losses or damages (financial or otherwise) resulting from your use of the Services, the information thereon, any materials downloaded therefrom, or any activity arising from the use of the Services, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Services, written or produced by Eno staff, freelance writers or other subcontractors hired by Eno are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur. Eno and its Representatives shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Services or the information thereon, or your reliance on such information whether the information is correct or not.
Eno expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Services, the information thereon or any materials downloaded therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from viruses and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Eno, its affiliates and their respective Representatives, do not warrant that: (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected (other than as may be corrected by the Enophone warranty as set forth in section 4); (iii) any content (whether provided by Eno or third parties) available at or through the Services is free of viruses or other harmful components; or (iv) the results of using the Services or any content downloaded will meet your requirements.
- Limitation of Liability
To the maximum extent permitted by law, Eno shall not be liable and assumes no responsibility for any loss or damages whether pecuniary or otherwise arising from or relating to the information available through the Services or downloaded therefrom, the use of the Services, activities arising from your use of the Services, or any third-party materials on the Services or available through the Services.
To the maximum extent permitted by law, in no event will Eno or its Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Services or your use, misuse or inability to use the Services, even if Eno has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions and limitations may or may not apply to you.
- Governing Law and Applicable Jurisdiction
These TOU and your use of the Services shall be governed by and construed in accordance with the laws of the Province of Québec, Canada and the federal laws of Canada applicable therein in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and Eno shall be brought exclusively in the courts located in the Judicial District of Montréal, Canada. Notwithstanding the foregoing, Eno shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montréal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montréal court.
- Miscellaneous Provisions
(ii) Eno shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Eno’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
(iv) The failure of Eno to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Eno.
© Mindset Innovation Inc., 2020