Welcome to ENA. Please read on to learn the rules and restrictions that govern your use of our website(s), platform, and related services and applications (the “Services”). ENA operates a technology platform that facilitates a structured offer process for residential real estate. ENA is not a real estate broker, agent, or auctioneer, and does not represent buyers or sellers in any real estate transaction. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:

Email: support@enashouse.com
Address: 325 Hudson Street, 4th Floor, New York, NY 10013

These Terms of Use (the “Terms”) are a binding contract between you and ENA CORPORATION (“ENA,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy and the Participation Terms. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.

Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

What are the basics of using ENA?

You may use ENA as either a buyer of real estate (“Buyer”), a seller of real estate (“Seller”) or a licensed real estate agent representing a Buyer or Seller (an “Agent”). You may be required to sign up for an account, select a password and user name (“ENA User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your ENA User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.

You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal use, and not on behalf of or for the benefit of any third party, unless you are a licensed real estate agent representing a Buyer or Seller on the Services. You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your ENA User ID, account or password with anyone, and you must protect the security of your ENA User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your ENA User ID and account.

Licensed Real Estate Agents Required

ENA requires that all Sellers list properties through a licensed real estate agent or broker, and that all Buyers submit offers through a licensed real estate agent or broker. Neither Sellers nor Buyers may list properties or submit offers directly through the Services without the involvement of their respective licensed real estate agents. Agents accessing the Services on behalf of their clients represent and warrant that they hold a valid real estate license in the jurisdiction where the Listed Property is located and that their participation complies with all applicable licensing requirements and any applicable MLS rules.

ENA operates a technology platform that facilitates a structured offer process for residential real estate. ENA is not a real estate broker, agent, dealer, or auctioneer and does not represent, advise, or act on behalf of any Seller, Buyer or Agent. ENA does not participate in contract negotiations, financing, escrow, inspections, title, or closing. Once the offer process facilitated by ENA concludes and ENA introduces a Buyer and Seller, the remainder of the transaction proceeds directly between those parties and their respective licensed professionals through the traditional residential real estate process. When we use the word “you” in these Terms, it refers to any user, regardless of whether he or she is a Seller, Buyer, or Agent, while if we use one of those specific terms, it only applies to that category of user.

Connecting Sellers and Buyers

Before submitting an offer on a property listed through the Services (a "Listed Property”), Buyers are responsible for conducting their own due diligence and making their own determinations regarding the suitability of the Listed Property. ENA does not verify, and is not responsible for, the accuracy or completeness of any information that a Buyer, Seller, or Agent provides about themselves or about any Listed Property (including without limitation any financing pre-approval letters, proof of funds, or other documents uploaded through the Services). We don’t control the actions of any Buyer, Seller, or Agent, and no such party is our employee or agent.

ENA does not list, offer, broker, or otherwise represent any Listed Property. You hereby acknowledge that ENA does not supervise, direct, control, or monitor any Listed Property and expressly disclaims any responsibility and liability for any Listed Property, including but not limited to any warranty or condition of quality, fitness for a particular purpose, compliance with any law, regulation, or code, or the accuracy of any information provided by a Seller or Buyer in connection with a Listed Property.

For the avoidance of doubt, nothing in these Terms prohibits Buyers, Sellers, or Agents from transacting on a Listed Property outside of the ENA platform process. However, Buyers, Sellers, and Agents who transact on a Listed Property outside of the ENA platform process will forfeit the benefit of the ENA process, including potential access to ENA buyers. In addition, Buyers, Sellers and Agents who attempt to circumvent ENA’s platform fee may be subject to account suspension or termination.

What about messaging?

As part of the Services, you may receive communications through the Services, including messages that ENA sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want ENA to send you information regarding your account or transactions with us, which may include ENA using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from ENA, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from ENA. By providing your phone number and opting into our text messaging program, you consent to receive a one-time transactional security code on your mobile device. Standard message and data rates may apply. For assistance, reply HELP to the number from which you received the message, or contact us at support@enashouse.com. To stop receiving messages, reply STOP at any time. Carriers are not liable for delayed or undelivered messages. You agree to indemnify and hold ENA harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.

Are there restrictions in how I can use the Services?

You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:

• infringes or violates the intellectual property rights or any other rights of anyone else (including ENA);
• violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by ENA;
• is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
• jeopardizes the security of your ENA User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
• attempts, in any manner, to obtain the password, account, or other security information from any other user;
• violates the security of any computer network, or cracks any passwords or security encryption codes;
• runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
• “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
• copies or stores any significant portion of the Content; or
• decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

Are there any terms specific to me as a Seller?

Sellers must treat all information received about Buyers (“Buyer Information”) as strictly confidential and may only use such Buyer Information for purposes of evaluating offers submitted through the Services in connection with their Listed Property. Sellers must not use Buyer Information for any other purpose, share it with any third party (other than their licensed real estate agent or attorney), or retain it beyond what is necessary for the offer process. Upon the conclusion of the offer process for the applicable Listed Property (or otherwise upon the request of such Buyer or ENA), Sellers must properly dispose of all Buyer Information and make no further use of it. Sellers must handle all Buyer Information in compliance with applicable laws. Sellers acknowledge that they must work with a licensed real estate agent or broker when listing a property on ENA. Sellers are solely responsible for ensuring that their participation in the ENA offer process complies with all applicable real estate laws and MLS rules and regulations governing their Listed Property.

Are there any terms specific to me as a Buyer?

Buyers acknowledge that they must work with a licensed real estate agent or broker when submitting offers on a Listed Property through ENA. Buyers are solely responsible for conducting their own due diligence with respect to any Listed Property prior to submitting an offer. ENA does not verify, and is not responsible for, the accuracy or completeness of any information provided about a Listed Property. By submitting an offer through the Services, Buyers represent and warrant that they have independently evaluated the Listed Property and are participating in the ENA offer process on the basis of their own assessment and that of their licensed professionals.

Buyers acknowledge that participation in the ENA offer process does not create any obligation on the part of ENA to facilitate a transaction or introduction, and that the outcome of the offer process is determined solely by the market. Buyers are solely responsible for ensuring that their participation in the ENA offer process complies with all applicable laws, including without limitation any financing, disclosure, or consumer protection requirements applicable to them.

Are there any terms specific to me as an Agent?

Agents accessing the Services on behalf of a Buyer or Seller represent and warrant that they (i) hold a valid, active real estate license in good standing in each jurisdiction in which they participate through the Services; (ii) are authorized by their client to act on the client’s behalf in connection with the ENA offer process; and (iii) will comply with all applicable licensing requirements, brokerage obligations, MLS rules and regulations, and professional conduct standards that govern their participation.

Agents must not use the Services, or any information received through the Services, in a manner that violates their fiduciary or other professional duties to their clients. Agents are solely responsible for ensuring that their use of the platform, and their clients’ participation through them, complies with all applicable laws and professional rules. ENA does not supervise, direct, or control the professional conduct of Agents, and nothing in these Terms creates any agency, employment, or joint venture relationship between ENA and any Agent.

Agents acknowledge that ENA is a technology platform and is not itself a licensed real estate broker, agent, or auctioneer. Agents are responsible for independently advising their clients on all matters relating to any Listed Property, any offer submitted through the Services, and the traditional real estate transaction that may follow any introduction facilitated by ENA. ENA does not provide real estate, legal, financial, or other professional advice, and Agents should not represent to their clients that ENA has evaluated, verified, or endorsed any aspect of a Listed Property or any offer submitted in connection therewith.

What are my rights in the Services?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including ENA'S) rights.

Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that ENA owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.

Who is responsible for what I see and do on the Services?

Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services. Without limiting the foregoing, ENA does not guarantee that Content related to a Listed Property is accurate or complete, including with respect to the condition or suitability of any Listed Property as well as any defects, encumbrances or other matters related thereto.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by ENA. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that ENA is not responsible for such risks.

ENA has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, ENA will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.

If there is a dispute between participants on this site or Services, or between users and any third party, you agree that ENA is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release ENA, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Will ENA ever change the Services?

We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Do the Services cost anything?

Access to and use of the Services for Buyers and Agents is currently provided at no charge. Sellers who successfully complete the ENA offer process may be subject to a platform fee as described in the Participation Terms. ENA reserves the right to introduce fees for certain features or categories of users in the future, with notice as described in the "Will these Terms ever change?" section above.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.enashouse.com, send you an email, and/or notify you by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

ENA takes the privacy of its users very seriously. For the current ENA Privacy Policy, please click here.

Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at support@enashouse.com.

What if I want to stop using the Services?

You’re free to do that at any time by contacting us at support@enashouse.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

ENA is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. ENA has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms; for example, a Buyer who believes that a Seller may be in breach of these Terms is not able to enforce these Terms against that Seller.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.

If you have deleted your account by mistake, contact us immediately at support@enashouse.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

What about Mobile Applications?

You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.

I use the ENA App available via the Apple App Store – should I know anything about that?

These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:

• Both you and ENA acknowledge that the Terms are concluded between you and ENA only, and not with Apple, and that Apple is not responsible for the Application or the Content;
• The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
• You will only use the Application in connection with an Apple device that you own or control;
• You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• You acknowledge and agree that ENA, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
• You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, ENA, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
• Both you and ENA acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
• Both you and ENA acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

What else do I need to know?

Warranty Disclaimer. ENA and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (ENA and all such parties together, the “ENA Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the ENA Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The ENA Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services, including any Seller Property. THE SERVICES AND CONTENT ARE PROVIDED BY ENA (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE ENA PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO ENA IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. You agree to indemnify and hold the ENA Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without ENA'S prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.

Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with ENA and limits the manner in which you can seek relief from ENA. Both you and ENA acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, ENA'S officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. ENA will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. ENA will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(c) Small Claims Court; Infringement. Either you or ENA may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

(d) Waiver of Jury Trial. YOU AND ENA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and ENA are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and ENA over whether to vacate or enforce an arbitration award, YOU AND ENA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor ENA is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 325 Hudson Street, 4th Floor, New York, NY 10013 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or ENA to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and ENA agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the federal district in which that county falls.

(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with ENA.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the ENA may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and ENA agree that these Terms are the complete and exclusive statement of the mutual understanding between you and ENA, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of ENA, and you do not have any authority of any kind to bind ENA in any respect whatsoever.

Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and ENA agree there are no third-party beneficiaries intended under these Terms.