EPSON PROJECTION STUDIO APP
END USER SOFTWARE LICENSE AGREEMENT
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NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE
INSTALLING OR USING THIS SOFTWARE.
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1. Your Account.
You must create an account with Epson to use the Software, unless the Software serves as a web service. When you create an account, you will provide Epson with your personal information, such as your name, your email address, and other information that may identify you. Personal information is any information that identifies or may identify an individual (“Personal Information”). The Epson Privacy Policy explains how Epson collects, uses, and shares your Personal Information and how you can control it. You must keep your account information complete and up to date. Your account password must be kept confidential and secure. Do not disclose your account password to any third party. If you suspect your account was subject to unauthorized access, please contact Epson immediately. Some features of the Software can be accessed via a web browser, without the need to create an Epson account. However, when accessing the Software through a web browser you must agree to this Agreement to use the Software. The Software is not directed to minors or children under the age of 18, so you must be 18 years of age or older to use the Software. If we learn that a child is using the Software without parental or guardian consent, we will terminate their access and delete their account and data.
2. Guests.
When you use the Software, including when you host an event (in which case you will be referred to in this Agreement as the “Host”), you may invite other individuals, such as your friends and family to use the Software (“Your Guests”). Your Guests must download and install the Software, unless they access the Software through a web browser. Your Guest must agree to the terms of this Agreement and the Privacy Policy in order to use the Software and share their content for use with the Software. You are solely responsible (to us and to others) for all activity under your account, including the activity of Your Guests. In using the Software, you may share Your Guests’ Personal Information and Guest Content (as defined below) with Epson, and you represent and warrant that you have all the necessary rights and permissions from Your Guests for such sharing.
3.
Software License Grant.
Epson grants you, as a User, Host, or Guest, a limited, nonexclusive,
non-sublicensable, non-transferable, revocable license to download, install and
use the Software solely for your personal, private, non-commercial use on your
Epson projector, computer, smartphone, tablet, or other mobile device
(collectively, "Device(s)"), provided that the Software is used
(i) only on a Device owned or otherwise controlled by
you, and (ii) only in connection with Epson Hardware
owned by you or your Host. You are responsible for ensuring system
compatibility between your Device and the Software.
4. Acceptable Use Policy
Epson wants you and Your Guests to use the Software safely and responsibly. You and Your Guests will not use the Software, including any content provided through the Software (such as, without limitation, music content), in any manner that:
(i) is unlawful, misleading, fraudulent, or for an illegal or unauthorized purpose;
(ii) violates the rights of any third parties, including copyright, trademark, other intellectual property, or privacy rights, including through the use of artificial intelligence tools or otherwise;
(iii) is defamatory of any person, impersonates others, or provides inaccurate information;
(iv) is offensive, violent, deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass or upset people;
(v) is obscene, offensive, pornographic, hateful or inflammatory;
(vi) in the sole judgment of Epson, is objectionable or which restricts or inhibits any other person from using the Software, or which may expose Epson, the Software or its users to any harm or liability of any type;
(vii) can harm the Software or other impair anyone else’s use of the Software; or
(viii) helps or encourages anyone to do any of the above.
The Software allows you to (i) create short videos based on Your Content and Guest Content (“Your Videos”); and (ii) upload, store, and share Your Videos with Your Guests and others on social media platforms and other third-party services. Any copying or redistribution of the Software, including any content provided to you through the Software, is prohibited except for the case where such content is copied and/or redistributed as part of Your Videos created through the Software. If you violate this Acceptable Use Policy, Epson may, at its sole discretion, at any time, with or without notice, suspend or remove your account, or terminate the license granted in Section 3 above and this Agreement.
5.
Restrictions.
You will not, nor attempt to, or allow others to, modify, adapt or translate
the Software and you further agree not to reverse engineer, decompile,
disassemble or otherwise attempt to discover the source code of the Software
and any of its components. The Software is for your personal, non-commercial
use. You may not rent, lease, distribute, lend to third parties, broadcast,
display, use or incorporate the Software into or with a revenue generating
product or service. Epson reserves the right to, at any time, without
notice, in whole or in part, remove Your Content (including any Guest Content),
suspend or terminate your account (i) if Epson determines, in its sole
discretion, that Your Content violates this Agreement; or (ii) if required to
do so by law.
6.
Upgrades and Updates.
Subject to Section 28 (which may apply to you if you acquire goods and service
from Epson in Australia), Epson may, from time to time, upgrade, update, or
modify the Software. The upgraded, updated, or modified version shall be
included in, and become part of the Software, and governed by this Agreement.
You acknowledge that Epson has no obligation to provide any Updates (as defined
below) to the Software. Epson may, however, from time to time, issue updated
versions of the Software and the Software may automatically connect to Epson or
Epson’s third-party servers via the Internet to check for available updates to
the Software, such as bug fixes, patches, upgrades, additional or enhanced
functions, plug-ins and new versions (collectively, "Updates") and
may either (a) automatically electronically update the version of the Software
that you are using on your personal device or (b) give you the option of
manually downloading applicable Updates.
7.Ownership
Rights and Content Licenses.
7.1. As to the Software: All title, ownership rights, and intellectual
property rights in and to the Software shall remain with Epson or its licensors
and suppliers. The Software is protected by United States Copyright Law,
copyright laws of Japan and international copyright treaties, as well as other
intellectual property laws and treaties. There is no transfer to you of any
title to or ownership of the Software and this License shall not be construed
as a sale of any rights in the Software. You will not remove or alter any
copyright, trademark, registered mark and other proprietary notices on any
copies of the Software. Epson and/or its licensors and suppliers reserve all
rights not granted herein. The Software may also contain images, illustrations,
designs, and photos ("Materials"), and the copyright of such
Materials belongs to Epson and/or its licensors and suppliers and protected by
national and/or international intellectual property laws, conventions and
treaties. For clarity, (i) the Materials shall only be used with the Software
and for non-commercial purposes, (ii) the Materials shall be edited, adjusted
and copied only in the manner designated by the Software, and (iii) you may use
the Materials only as allowed under this Agreement. The Software may
allow you to connect with (iv) Epson’s Affiliates websites. products, and
services. When you engage with our Affiliates, the respective Affiliate’s terms
of use and privacy policies govern your use of the Affiliates’ websites,
products, and services; and (v) third party services, such as social media
platforms and music services (“Third-Party Services”). Your use of any
Third-Party Services is subject to the respective terms of use and privacy
policy of the Third-Party Service. You remain solely responsible for your
Third-Party Services use.
7.2. As to Your Content. You may upload or otherwise make available content through the Software including, without limitation, any text, images, photographs, videos, sound recordings and the musical works embodied therein (“Your Content”). You may also upload Your Guests’ text, images, photographs, audio, video, or other content for use with the Software (“Guest Content”). For the purposes of this Agreement, Your Content may also include Guest Content. You and Your Guests retain all ownership rights to your respective content, as appropriate.
7.3. License to Your Content. When you use the Software, including as a Host or as a Guest, you grant Epson, and its Affiliates, a royalty-free, worldwide, transferable, sublicensable right and license to (i) host, use, process, distribute, modify, transmit, copy, publicly perform or display, translate, and create derivative works of Your Content in connection with your use of the Software (locally, on a Device, and online, as appropriate); and (ii) use your and Your Guests’ name, image, voice, and likeness to identify you or Your Guests as the source of any of Your Content. The Software may allow you to extract all or any portion of Guest Content to produce additional content that will be incorporated into Your Content and, in relation to such additional content, you and Your Guests grant Epson the same rights referenced in (i) and (ii) above. The rights granted in this license are for the purpose of providing the Software to you, operating, promoting, improving the Software, and researching and developing new software and services. You authorize us to share your Content, including Guest Content, with Your Guests and our third-party services providers with whom we have contractual relationships with for the provision of the Software and our services. You authorize us to pass the rights granted in this Section 7.3 to Your Guests and our third-party service providers. The license to Your Content ends when Your Content is deleted from our systems or when you delete your account. However, when you (i) save Your Content in your Devices or to online third-party services; or (ii) upload Your Content to third-party social media platforms; or (iii) share Your Content with other individuals, you acknowledge and agree that (iv) Your Content will be subject to the respective terms of service and privacy policy of the third-party services or social media platforms; (iv) Epson has no control over such third-party services, social media platforms, or any other individuals you share Your Content with, and therefore, Epson is not liable for the actions of third-party services, social media platforms, or any other individuals you share Your Content with. By uploading Your Content for use with the Software, you and Your Guests waive any rights to prior inspection or approval, any and all rights of publicity, or any other rights of a similar nature in connection with Your Content, or any portion thereof.
7.4. Content Warranties. As a condition of your access to and use of the Software, you represent and warrant that you own Your Content, or you have received all necessary permissions, rights, clearances from, or are authorized (i) by the owner of any other content you use with the Software, and (ii) by Your Guests, to: use the aforementioned content with the Software, including rights to upload, share, modify (including by adding graphics, sticker, music, or other elements), reproduce, make derivative works of, publish, publicly display, publicly perform, and/or transmit Your Content to third parties and third party platforms (such as social media platforms) now known or hereafter created. Epson does not verify or approve Your Content or your Guest’s Content. Epson is not responsible for Your Content, your views, Your Guest’s views, or any third party’s views and opinions, and such views or opinions do not represent Epson’s views, values, or opinions.
8.
Open Source and Other Third-Party Components and Services.
Certain components of the Software may be covered by third-party licenses,
including "open source" software licenses, which means any software
licenses approved as open source licenses by the Open Source Initiative or any
substantially similar licenses, including without limitation any license that,
as a condition of distribution of the software licensed under such license,
requires that the distributor make the software available in source code format
(such third-party components, "Third-Party Components"). A list of
Third-Party Components, and associated license terms (as required), for
particular versions of the Software is indicated at https://support.epson.net/terms/,
the end of this Agreement, relevant user manual/CD, or the license information
displayed on your Device/in Software. To the extent required by the licenses
covering Third-Party Components, the terms of such licenses will apply in lieu
of the terms of this Agreement. To the extent the terms of the licenses
applicable to Third-Party Components prohibit any of the restrictions in this
Agreement with respect to such Third-Party Components, such restrictions will
not apply to such Third-Party Component. The Software may include third-party
services, such as Firebase Cloud Messaging (FCM), a service provided by Google,
Inc. to deliver push notifications. You must comply with the Google API Terms
of Service available at https://developers.google.com/terms/.
9.Disclaimer
of Warranty and Remedy.
Subject to Section 25 (which may apply to you if you require goods and service
from Epson in Australia) THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT
ANY WARRANTY OF ANY KIND. EPSON AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE
PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. You agree to use
the Software at your own risk. Epson does not guarantee that the
operation of the Software will be uninterrupted, error free, free from viruses
or other harmful components or vulnerabilities, or that the functions of the
Software will meet your needs or requirements. You are responsible for configuring your information
technology, computer programs, and platforms to access and use the Software,
including using your own virus protection software. You should save copies of
Your Content on your personal device(s) if you want to ensure that you have
permanent access to Your Content. Epson does not guarantee the accuracy,
integrity, availability, appropriateness or quality of Your Content, and under
no circumstances will Epson be liable in any way for Your Content. Epson's entire
liability for a breach of warranty mentioned in this section shall be limited
to a refund of the price paid for the Epson Hardware. Epson is not liable for
performance delays or for nonperformance due to causes beyond its reasonable
control. This limited warranty is void if failure of the Software resulted from
accident, abuse, or misapplication caused by you. THIS LIMITED WARRANTY AND
REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS. EPSON DISCLAIMS ALL OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL
WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE. SOME STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR
LIMITATIONS OF IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY
NOT APPLY TO YOU.
10.Limitation
of Liability.
Subject to Sections 25 and/or 28(which may apply to you if you acquire goods
and services from Epson in Australia),TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL EPSON OR ITS SUPPLIERS BE LIABLE FOR ANY
DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, OR CONTENT ARISING OUT
OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF THIS
AGREEMENT, EVEN IF EPSON OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EPSON’S ENTIRE LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR YOUR USE OF THE SOFTWARE WILL NOT EXCEED $10.00
(TEN U.S. DOLLARS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
DAMAGES IN CERTAIN TRANSACTIONS, AND IN SUCH STATES, THE ABOVE LIMITATIONS AND
EXCLUSIONS MAY NOT APPLY.
11.
Indemnification.
Subject to Section 28 (which may apply to you if you acquire goods and services
from Epson in Australia. You will defend, indemnify, and hold harmless Epson
and its directors, officers, shareholders, employees and agents from and
against any and all losses, liabilities, damages, costs, expenses (including
reasonable attorneys' fees), actions, suits, and claims (“Claims”) arising from
(i) your and Your Guests’ breach of any conditions, obligations,
representations, and warranties in this Agreement; or (ii) your and your
Guests’ use of the Software or the Epson Hardware. Epson will have the right,
at its own expense, to participate in the defense of any Claims with counsel of
its choice. You will not settle any Claims for which Epson is entitled to
indemnification without the prior written approval of Epson.
12.
Termination.
Subject to Section 28 (which may apply to you if you acquire goods and services
from Epson in Australia), Your license rights to use the Software shall
automatically terminate upon any failure by you to comply with this Agreement.
Epson may also discontinue the Software at its sole discretion and
without liability to you. Should Epson decide to discontinue the Software, your
right to use the Software will automatically terminate. Epson will provide
notice of any discontinuation of the Software.
13.
U.S. Government Acquisition of the Software.
This Section applies to all acquisitions of the Software by or for the U.S.
Government ("Government"), or by any prime contractor or
subcontractor (at any tier) under any contract, grant, cooperative agreement,
"other transaction" ("OT"), or other activity with the
Government. By accepting delivery of the Software, the Government, any prime
contractor, and any subcontractor agree (a) that the Software qualifies as
"Commercial products," as that term is defined at 48 C.F.R. Section
2.101, consisting of “Commercial computer software” and “Commercial computer
software documentation,” as such terms are used in 48 C.F.R. Section 12.212 or
48 C.F.R. Section 227.7202, as applicable, and (b) that consistent with 48
C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as
applicable, the Software is provided to the Government only as a Commercial
product and with only those rights as are granted to all other end users
pursuant to this Agreement. The terms and conditions of this Agreement govern
the Government's (and the prime contractor and subcontractor's) use and
disclosure of the Software and supersede any conflicting terms and conditions
of the contract, grant, cooperative agreement, OT, or other activity pursuant
to which the Software is delivered to the Government. If this Software fails to
meet the Government's needs, if this Agreement is inconsistent in any respect
with Federal law, or if the above cited provisions of 48. C.F.R do not govern,
the Government agrees to return the Software, unused, to Epson.
14.
Export Restriction.
You will comply with all applicable international and national laws that apply
to the Software. You will not ship, transfer or export the Software to any
country subject to restrictions imposed by the United States Export
Administration Regulations and any other export laws, restrictions or
regulations, including end-use and destination restrictions.
15. Changes to this Agreement.
Epson may make changes to this Agreement from time to time, for example when we add a new feature or to comply with regulatory requirements. Epson will use reasonable efforts to notify you of any material changes to this Agreement. Your continued use of the Software after the date of any changes to this Agreement constitutes your acceptance of the new terms. If you do not agree to the new Agreement terms, you must stop using the Software.
16.
Binding Agreement; Assignees.
This Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors, assigns, and legal representatives.
Epson may assign this Agreement to an Epson affiliate or in a change of
ownership (as in a merger, acquisition, or sale of assets) You cannot assign
this Agreement or transfer your rights and obligations hereunder without
Epson’s prior consent.
17.
Severability; Modifications.
If any provision of this Agreement is found void or unenforceable by a court of
competent jurisdiction, it will not affect the validity of the balance of the
Agreement, which shall remain valid and enforceable according to its terms. Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia)This Agreement may only be modified in writing signed by an
authorized representative of Epson.
18.
Capacity and Authority to Contract.
Subject to Section 28 (which may apply to you if you acquire goods and services
from Epson in Australia, you represent that you are of the legal age of
majority in your state or jurisdiction of residence and have all necessary
authority and legal capacity to enter into this Agreement, including, if
applicable, due authorization by your employer to enter into this Agreement.
19. Feedback.
You may voluntarily share comments and other feedback orally or in writing about the Software and Epson products to Epson (collectively “Feedback”). If you provide Feedback, then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Any such Feedback is not confidential, and Epson may use in its sole discretion for any purpose. You grant Epson a perpetual and unlimited permission to reproduce, distribute, create derivative works of, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
20.
Privacy, Information Processing.
The Software may have the ability to connect over the Internet to transmit data
to and from your Device. For example, if you install and/or use the Software,
the Software may cause your Device to send information about your Epson
Hardware such as model and serial number, country identifier, language code,
operating system information, and Epson Hardware usage information to an Epson
Internet site which may return promotional or service information to your
Device for display. Any processing of information, including Personal
Information, provided through the Software, shall be according to applicable
data protection laws and the Epson Projection Studio Privacy Information
Statement presented within the Software. To the extent permitted by applicable
laws, by agreeing to the terms of this Agreement and by installing and/or using
the Software, you consent to the processing and storage of your information in
and/or outside your country of residence. If there is a specific privacy policy
incorporated into the Software and/or displayed when you use the Software (for
example, in the case of certain software application software), such specific
privacy policy shall prevail over the Epson Privacy Policy stated above.
21. Waiver.
Any failure by Epson to insist upon or enforce any provision of this Agreement shall not be construed as a waiver of any provision or right.
22.
Third Party Websites and Affiliates Websites.
You may, through hypertext or other computer links from the Software, gain
access to websites and use certain services that are not under the control of
or operated by Epson, but rather are controlled by third parties. You
acknowledge and agree that Epson is not responsible for such third-party sites
or services, including their accuracy, completeness, timeliness, validity,
copyright compliance, legality, decency, quality, or any other aspect thereof.
These third-party websites/services are subject to different terms and
conditions and when you access and use third party websites/services, you will
be legally bound by the terms and conditions of those websites/services. The
third-party websites'/services' terms and conditions will govern with respect
to your access and use of those websites/services. Although Epson may provide a
link to a third-party website/service from the Software, such a link is not an
authorization, endorsement, sponsorship or affiliation by Epson with respect to
such website/services, its content, its owners or its providers. Epson provides
such links for your reference and convenience only. Accordingly, Epson makes no
representations whatsoever concerning such websites/services and does not
provide any support related to such third-party sites or services. Epson has
not tested any information, products or software found on such
websites/services and therefore cannot make any representations whatsoever with
respect thereto. You agree that Epson is not responsible for the content or
operation of such websites/services, and it is up to you to take precautions to
ensure that whatever you select is free of items such as viruses, worms, Trojan
horses and other items of a destructive nature. You are solely responsible for
determining the extent to which you may use any content at any other
websites/services to which you link from this Software. When you engage with
our Affiliates, the respective Affiliate’s terms of use and privacy policies govern
your use of the Affiliates’ websites, products, and services. As used in this
Agreement, “Affiliates” means any Seiko Epson Corporation affiliated companies
controlled by Seiko Epson Corporation. The term “control” in this context means
the direct or indirect ownership of at least fifty percent (50%) of the voting
interest in such corporation or the power in fact to control the management
decisions of such companies.
(If You have downloaded Software from the Apple, Inc. ("Apple") App Store or if You are using Software on an iOS device (i.e. Apple-branded product), You acknowledge that You agree to the following provisions regarding the said Software downloaded from the Apple App Store or used on an Apple-branded product.)
23.
Requirements Under the Apple Developer Program License Agreement.
1. Acknowledgement: You understand that this Agreement is solely between You
and Epson, and not with Apple, and that Epson is solely responsible for the
Software under this Agreement.
2. Scope of License: Each license granted to You for Software is limited to a
non-transferable license to use Software on any Apple-branded products that You
own or control and as permitted by the Usage Rules set forth in the Apple Media
Services Terms and Conditions, except that such Software may be accessed and
used by other accounts associated with You via Family Sharing, volume
purchasing, or Legacy Contacts.
3. Maintenance and Support: Epson is solely responsible for the maintenance and
support of the Software to the extent specifically stated in this Agreement and
required by applicable law, but except to the extent that this Agreement
disclaims or discharges such responsibility under the applicable law. You
acknowledge that Apple has no obligation to provide any maintenance and support
services with respect to the Software.
4. Warranty: Epson is solely responsible for all warranties with respect to the
Software, whether express or implied by law, except for those that have been
validly disclaimed or discharged. If the Software fails to conform to any
applicable warranty, You may notify Apple, and Apple will refund You the
purchase price of the Software. In addition, to the extent permitted by
applicable law, Apple shall have no liability for any warranty with respect to
the Software, and Epson is solely responsible for all claims, damages,
liabilities, costs, expenses, etc. arising from any failure to conform to the
warranty provisions, except to the extent that have been validly disclaimed or
discharged.
5. Product Claims: You acknowledge that Epson is responsible (except to the
extent that this Agreement disclaims or discharges Epson’s responsibilities but only to the extent permitted by law)
for addressing any claims raised by You or any third party relating to Your
possession and/or use of the Software (including, but not limited to, (i)
product liability claims, (ii) claims that the Software fails to conform to any
applicable legal or regulatory requirement, and (iii) claims arising under
consumer protection, privacy or similar laws (including those related to use of
the HealthKit and HomeKit frameworks in the Software)) and Apple is not
responsible therefor. This Agreement may not limit Epson’s liability to You to an extent that is not permitted by
applicable law.
6. Claims of Infringement of Intellectual Property Rights: You will notify
Epson of any third-party claim that Your possession or use of the Software
infringes a third party's intellectual property rights. In such case, Epson
shall be responsible for the investigation, defense, settlement and discharge
of such intellectual property infringement claim, except to the extent that
this Agreement disclaims or discharges Epson’s
responsibilities therefor but only to the extent permitted by law, and Apple
shall bear no responsibility therefor.
7. Compliance with Laws: You represent and warrant that (i) You are not located
in a region that is subject to a U.S. Government embargo, or that has been
designated by the U.S. Government as a “terrorist supporting” region; and (ii) You are not listed on any U.S. Government
list of prohibited or restricted parties.
8. Point of Contact: You may contact Epson at the contact information listed on
the Software's introduction page, or at the point of contact of our affiliate
in Your region.
9. Third Party Terms: In Your use of the Software, You must also comply with
any relevant third party agreements, such as the terms of service of third
parties including agreements with telecommunications carriers.
10. Third Party Beneficiary: You acknowledge and agree that Apple and Apple's
subsidiaries are third party beneficiaries of this Agreement, and that, once
You accept the terms of this Agreement, Apple will acquire the right (and will
be deemed to have accepted the right) to enforce this Agreement against You as
a third party beneficiary thereof.
THE FOLLOWING SECTIONS 24-34 OF THIS DOCUMENT MAY APPLY TO YOU IF YOU ACQUIRE GOODS OR SERVICES IN AUSTRALIA (SEE SECTIONS 25 AND 28 FOR FURTHER INFORMATION AS TO WHEN THESE SECTIONS APPLY)
24. Definitions.
For the purpose of the following Sections 24-34 of this Agreement, the Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
25. Acquiring Product as a Consumer.
If you acquire the Software in Australia as a consumer under the Australian Consumer Law, which can include individuals or businesses or other entities of any size, this Agreement is subject to the following Sections 26 and 27.
26. Australian Consumer Law.
Nothing in this Agreement applies where it would exclude, restrict or modify any right or remedy you may have under the Australian Consumer Law if such right or remedy cannot lawfully be excluded, restricted or modified.
Notwithstanding anything to the contrary in this Agreement, if you acquire goods and services from Epson as a consumer, they come with statutory guarantees under the Australian Consumer Law that are not excluded by any other terms of this Agreement.
The statutory guarantees include (without limitation) the following:
Goods must be of acceptable quality. This means they must:
-be safe;
-be free from defects;
-be acceptable in appearance and finish;
-do all the things someone would normally expect them to do;
-match any demonstration model or sample;
-be fit for the purpose which Epson has represented to you it would be fit for;
-match the description of the goods given by Epson; and
-meet any express warranty given by Epson to you at the time of your purchase about their performance, condition and quality.
Services provided by Epson must:
-be provided with due care and skill or technical knowledge;
-be fit for the purpose or give the results that have been agreed to; and
-be delivered within a reasonable time when there is no agreed end date.
To the extent that Epson fails to comply with a consumer guarantee applicable to you under the Australian Consumer Law you are entitled to the remedies as set out in the Australian Consumer Law. For major failures with the service, you are entitled:
-to cancel your service contract with Epson; and
-to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods.
If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
27. Disclaimer of Warranty and Remedy.
Section 9 (Disclaimer of Warranty and Remedy) will not apply to you. The following section will apply instead:
EXCEPT THAT NOTHING IN THIS CLAUSE EXCLUDES, RESTRICTS OR MODIFIES ANY WARRANTIES, GUARANTEES, RIGHTS OR REMEDIES WHICH CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW: (1) THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND; (2) EPSON AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE; (3) Epson does not warrant that the operation of the Software will be uninterrupted, error free, free from viruses or other harmful components or vulnerabilities, or that the functions of the Software will meet your needs or requirements; (4) Epson is not liable for performance delays or for non-performance due to causes beyond its reasonable control; and (5) EPSON DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
28. Acquiring Product under a Consumer or Small Business Contract.
If:
(a) you are an individual and you acquire the Software wholly or predominantly for personal, domestic, or household use or consumption; or
(b) this agreement constitutes a small business contract (as that term is defined in the Australian Consumer Law from time to time),
then the following Sections 29 - 34 will apply to you.
29. Limitation of Liability.
Section 10 will not apply to you. The following section will apply instead of:
Subject to Section 25 , IN NO EVENT WILL A PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF THIS AGREEMENT, EVEN IF THAT PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
30. Upgrades and Updates.
Where Epson automatically updates the Software under Section 6 (Upgrades and Updates), you may terminate this Agreement in writing with no further liability to Epson if a material feature of the Software is changed, discontinued or removed (as a result of the bug fixes, patches, upgrades, additional or enhanced functions, plug-ins and new versions) from the Software and you can demonstrate that this has more than a minor detrimental impact on you.
31. Severability; Modifications.
This Agreement may only be modified if, in addition to being modified in writing signed by, or by an authorized representative of, Epson, it is also modified in writing signed by, or by an authorized representative of, you.
32. Indemnification.
Section 11 (Indemnification) will not apply to you.
33. Termination.
Section 12 (Termination) will not apply to you. The following section will apply instead:
Without prejudice to any other rights of the parties, each party may terminate this Agreement, effective on notice to the other party, if the other party fails to comply with this Agreement. Upon termination, you must cease using the Software, and all copies thereof, must be immediately destroyed.
34. Capacity and Authority to Contract.
In addition to the representation made by you in Section 18 (Capacity and Authority to Contract), Epson represents that it has all necessary authority to enter into this Agreement.
[End of Agreement]