EPSON PROJECTION STUDIO APP
END USER SOFTWARE LICENSE AGREEMENT
|
NOTICE TO USER:
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS SOFTWARE.
|
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.
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.
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.
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.
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.
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. This
Agreement may only be modified in writing signed by an authorized
representative of Epson.
18. Capacity and Authority to Contract.
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 Privacy
Policy located at https://global.epson.com/privacy/area_select_confirm_eula.html.
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.
(IF YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 24 - 27 APPLY TO YOU)
24. Epson Accounts and Promotional
Messages.
In addition, if you install the Software and register your Epson Hardware with
Epson, and/or you create an account at the Epson Store, you agree that
Epson may send you Epson promotional or service information. You may
unsubscribe from receiving promotional communications from Epson at any time by
clicking the unsubscribe link included in such communications.
25. Entire Agreement.
This Agreement is the entire agreement between the parties related to the
Software and supersedes any purchase order, communication, advertisement, or
representation concerning the Software.
26. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
26.1 Disputes.
The terms of this Section 26 shall apply to all Disputes between you and Epson.
The term "Dispute" is meant to have the broadest meaning permissible
under law or in equity and includes any past, present, or future dispute,
claim, controversy or action between you and Epson including those that arose
before the existence of this or any prior Agreement arising out of or relating
to this Agreement (including its formation, performance, or breach), the
Software, Epson Hardware, the parties' relationship with each other and/or any
other transaction involving you and Epson, whether in contract, or with respect
to warranty, misrepresentation, fraud, tort, intentional tort, statute,
regulation, ordinance, or any other legal or equitable basis. However, a
"Dispute" does not include a claim or cause of action for (a)
trademark infringement or dilution, (b) patent infringement, (c) copyright
infringement or misuse, or (d) trade secret misappropriation (an "IP
Claim"). A "Dispute" also does not include a request for public
injunctive relief. You and Epson agree, consistent with Section 26.6(a), that a
court, not an arbitrator, may decide if a claim or cause of action is for an IP
Claim, as well as whether a claim seeks public injunctive relief.
26.2 Initial Dispute Resolution.
Before submitting a claim for arbitration in accordance with this Section 26,
you and Epson agree to try, for sixty (60) days, to resolve any Dispute
informally. If Epson and you do not reach an agreement to resolve the Dispute
within the sixty (60) days, you or Epson may commence an arbitration in
accordance with Section 26.6. Notice to Epson must be addressed to: Epson
America, Inc., ATTN: Legal Department, 3131 Katella Avenue, Los Alamitos, CA
90720-2335. Any notice of the Dispute shall include the sender's name, address
and contact information, the facts giving rise to the Dispute, and the relief
requested. Any notice sent to you will be sent to the most recent address Epson
has in its records for you. For this reason, it is important to notify us if
your address changes by emailing us at EAILegal@ea.epson.com or
writing us at the address above. You and Epson agree to act in good faith to
resolve the Dispute before commencing arbitration in accordance with this
Section 26. To minimize the cost and inconvenience to all parties, and to
promote prompt resolution of Disputes, you and we agree that engaging in this
initial dispute resolution process is a material term of this Agreement and a
requirement that must be fulfilled before commencing any arbitration.
Consistent with Section 26.6(a), you and Epson agree that any disagreements
regarding compliance with this Section 26.2 shall be decided by a court, not an
arbitrator; pending resolution of any such disagreements by a court, which may
include requests to compel compliance with this Section 26.2, you and we agree
that arbitration (as well as any obligation to pay arbitration fees) shall be
stayed until the initial dispute resolution process in Section 26.2 is
complete. You and Epson acknowledge that either party's failure to comply with
the provisions of this Section 26.2 would irreparably harm the other, and you
and Epson agree that a court may issue an order staying arbitration (and any
obligation to pay arbitration fees) until the initial dispute resolution
process in this Section 26.2 is complete.
26.3 Binding Arbitration.
If we do not reach an agreed upon solution within a period of sixty (60) days
from the time informal dispute resolution is pursued pursuant to Section 26.2
above, then either party may initiate binding arbitration. Except as stated
below in Section 26.4, you and Epson agree that all Disputes shall be resolved
by binding arbitration according to this Agreement. ARBITRATION MEANS THAT YOU
WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING, AND YOUR RIGHT TO
DISCOVERY AND GROUNDS FOR APPEAL ARE MORE LIMITED THAN IN COURT. Pursuant to
this Agreement, and except as stated below in Section 26.6(h), binding
arbitration shall be administered by JAMS, a nationally recognized arbitration
provider, pursuant to the JAMS Streamlined Arbitration Rules and Procedures or
its applicable code of procedures then in effect for consumer related disputes,
but excluding any rules that permit class arbitration. For more detail on the
procedure to initiate arbitration and what your demand for arbitration should
include, see Sections 26.6(g) and 26.6(h) below. You and Epson understand and
agree that (a) the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) governs
the interpretation and enforcement of this Section 26, (b) this Agreement
memorializes a transaction in interstate commerce, and (c) this Section 26
shall survive termination of this Agreement.
26.4 Exception - Small Claims Court.
Notwithstanding the parties' agreement to resolve Disputes through arbitration,
either party can elect to have an individual claim resolved in small claims
court of your state or municipality if the action is within that court's
jurisdiction, even if the claim was initiated by another party in a different
forum.
26.5 WAIVER OF CLASS ACTION AND CLASS
ARBITRATION.
YOU AND EPSON AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY
ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS action or class arbitration.
If any court or arbitrator determines that the class action waiver set forth in
this paragraph is void or unenforceable for any reason or that an arbitration
can proceed on a class basis, then the arbitration provision set forth above in
Section 26.3 shall be deemed null and void in its entirety and the parties
shall be deemed to have not agreed to arbitrate disputes.
26.6 Arbitration Procedure.
|
(a) |
|
The arbitrator shall
be empowered to grant whatever relief would be available in a court under law
or in equity, except for requests for public injunctive relief, if any, which
shall be decided by a court, not an arbitrator. If either party seeks public injunctive
relief, that request for relief shall be severed from any arbitration
proceeding and stayed pending a final determination of the arbitration.
Nothing in Section 26 of this Agreement shall be construed as a waiver of
either party's right to seek public injunctive relief, and you and we agree
to cooperate to effect the stay of any requests for public injunctive
relief. |
|
(b) Costs of Arbitration and Legal Fees. |
|
In some instances, the costs of arbitration can exceed the costs of litigation. Each party will have the right to use legal counsel in connection with arbitration at its own expense. If, however, the arbitrator determines that a claim or defense asserted by you or Epson is patently frivolous or in bad faith, the arbitrator may award the reasonable legal fees and costs incurred by the other party defending against the claim or defense. By way of illustration only, and without limitation, a patently frivolous claim may be found where it is based on a product never purchased by a claimant. |
|
(c) Discovery. |
|
The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration. The right to discovery may be more limited in arbitration than in court. |
|
(d) Awards. |
|
The arbitrator's award is binding and may be entered as a judgment in any court of competent jurisdiction. |
|
(e) Hearing Format and Location. |
|
You may choose to engage in arbitration hearings by telephone or, if you and we both agree, to conduct it online, in lieu of appearing live. Arbitration hearings not conducted by telephone or online shall take place in a location reasonably accessible from your primary residence, or in Orange County, California, at your option. |
|
(f) Settlement Offers. |
|
During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Epson is entitled. |
|
(g) Initiation of Arbitration Proceeding Before JAMS. |
|
Except as stated in Section 26.6(h) below, if you or Epson commences arbitration, the arbitration shall be governed by the JAMS Streamlined Arbitration Rules and Procedures or the applicable rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class-wide basis (the "JAMS Rules"), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, which shall be selected in accordance with the JAMS Streamlined Arbitration Rules and Procedures, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. If either you or Epson decides to arbitrate a Dispute before JAMS, both parties agree to the following procedure: |
|
(i) Write a Demand
for Arbitration. The demand must include a description of the Dispute and the
amount of damages sought to be recovered. The demand also must identify the
product purchased, identify the date and place of purchase and, if possible,
provide the serial number and proof of purchase. You can find a copy of a
demand for arbitration at http://www.jamsadr.com. |
|
(h) Initiation of Mass Arbitration Before FedArb. |
|
Notwithstanding
Sections 26.3 and 26.6(g), if 20 (twenty) or more demands for arbitration are
filed relating to the same or similar subject matter and sharing common
issues of law or fact, and counsel for the parties submitting the demands are
the same or coordinated, you and we agree that this will constitute a
"Mass Arbitration". |
26.7 Thirty (30) Day Opt-out Right.
You may elect to opt-out (exclude yourself) from the final, binding, individual
arbitration procedure and waiver of class proceedings set forth in Sections 26.3
to 26.6 of this Agreement by sending a written letter to the Epson address
listed above in Section 26.2 within thirty (30) days of your assent to this
Agreement that specifies (i) your name, (ii) your mailing address, and (iii)
your request to be excluded from the final, binding individual arbitration
procedure and waiver of class proceedings specified in this Section 26. In the
event that you opt-out consistent with the procedure set forth above, all other
terms set forth in the Agreement, including this Section 26, shall continue to
apply, including the requirement to provide notice prior to litigation. If you
opt-out of these arbitration provisions, Epson will also not be bound by them.
26.8 Amendments to Section 26.
Notwithstanding any provision in this Agreement to the contrary, you and Epson
agree that if Epson makes any future amendments to the dispute resolution
procedure and class action waiver provisions (other than a change to Epson's
address) in this Agreement, Epson will obtain your affirmative assent to the
applicable amendment. If you do not affirmatively assent to the applicable
amendment, you are agreeing that you will arbitrate any Dispute between the
parties in accordance with the language of this Section 26 (or resolve disputes
as provided for in Section 26, if you timely elected to opt-out) when you first
assented to this Agreement.
26.9 Severability.
If any provision in this Section 26 is found to be unenforceable, that
provision shall be severed with the remainder of this Agreement remaining in
full force and effect. The foregoing shall not apply to the prohibition against
class actions as provided in Section 26.5. This means that if Section 26.5 is
found to be unenforceable, the entire Section 26 (but only Section 26) shall be
null and void.
27. New Jersey Residents.
NOTWITHSTANDING ANY TERMS SET FORTH IN THIS AGREEMENT, IF ANY OF THE PROVISIONS
SET FORTH IN SECTIONS 9 OR 10 ARE HELD UNENFORCEABLE, VOID OR INAPPLICABLE
UNDER NEW JERSEY LAW, THEN ANY SUCH PROVISION SHALL NOT APPLY TO YOU BUT THE
REST OF THE AGREEMENT SHALL REMAIN BINDING ON YOU AND EPSON. NOTWITHSTANDING
ANY PROVISION IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT IS INTENDED TO, NOR
SHALL IT BE DEEMED OR CONSTRUED TO, LIMIT ANY RIGHTS AVAILABLE TO YOU UNDER THE
TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT.
[End of Agreement]