EPSON END USER SOFTWARE
LICENSE AGREEMENT FOR Epson Edge Print
NOTICE
TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING,
INSTALLING OR USING THIS PRODUCT.
IF
YOU ARE LOCATED IN THE UNITED STATES, SECTIONS 19-23 OF THIS DOCUMENT APPLY TO
YOU. SECTION 22 CONTAINS A BINDING ARBITRATION PROVISION THAT LIMITS YOUR
ABILITY TO SEEK RELIEF IN A COURT BEFORE A JUDGE OR JURY, AND WAIVES YOUR RIGHT
TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS FOR CERTAIN DISPUTES. AN
“OPT-OUT” IS AVAILABLE UNDER SECTION 22.7 FOR THOSE WHO WISH TO BE EXCLUDED
FROM THE ARBITRATION AND CLASS WAIVER.
IF
YOU ACQUIRE THIS PRODUCT IN AUSTRALIA, SECTIONS 24-32 OF THIS DOCUMENT MAY
APPLY TO YOU. SECTIONS 25 AND 28 DESCRIBE WHEN THESE SECTIONS MAY APPLY.
SECTIONS 24-32 SET OUT MANDATORY STATUTORY PROTECTIONS WHICH CANNOT BE EXCLUDED
UNDER LAW. WHERE INDICATED, OTHER TERMS IN THIS AGREEMENT ARE SUBJECT TO SECTIONS
24-32.
This
is a legal agreement (“Agreement”) between you (an individual or entity,
referred to hereinafter as “you”) and Seiko Epson Corporation (including its
affiliates, “Epson”) for the enclosed software programs, including any related
documentation, firmware, or updates (collectively referred to hereinafter as
the “Software”). BEFORE DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE
SOFTWARE, YOU NEED TO REVIEW AND AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. By installing or using the Software, you are representing that you
agree with all the terms and conditions of this Agreement. If you do not agree
with the terms and conditions of this Agreement, do not install or use the
Software. In this Agreement, “affiliates” mean any corporation or entity of
which Epson owns, directly or indirectly, a majority of the assets or voting
stock.
1.1 Grant of License.
Epson
grants you a personal, nonexclusive, limited license to
(i)
install and use the Software on any single device (the “Device”);
(ii)
make one copy of the Software for backup and archival purposes (For clarity,
such backup and archival copy shall be treated as the Software herein); and
(iii)
install the Software on your devices for backup (the “Backup Device”).
When
the Device doesn’t work, you may use the Software on the Backup Device only
thirty (30) days from the first day you used the Software on the Backup Device
without inputting the serial number.
1.2 Third Party
Information.
Subject
to Section 25 and/or 28 (which may apply to you if you acquire goods and
services from Epson in Australia), you may set a print setting file (the
"Provided Files") provided separately by Epson, and you have the
option to use certain functions to assist the compatibility and use with the
printer and the media of your choice. The media is provided by an independent
third party. Listing of media in the Provided Files shall not be construed as
an endorsement of any particular media or manufacturer. Epson makes no
representation or warranty of any kind for any media in Provided Files
including but not limited to media availability or media quality. The
information contained herein is subject to change without notice. Epson makes
no representation as to the information's completeness or accuracy. Epson shall
not be liable for technical or editorial errors or omissions contained herein.
THIS INFORMATION IS PROVIDED, “AS IS” BY EPSON. EPSON MAKES NO EXPRESS OR
IMPLIED WARRANTY OF ANY KIND REGARDING THIS INFORMATION.
2. Upgrades and Updates.
Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia), if you acquire an updated version, upgrade version, modified
version, or additions (collectively "Updates") to or for the Software
from Epson, the Updates shall be included in the defined term Software and
governed by this Agreement. You acknowledge that Epson has no obligation to
provide you with any Updates to the Software. Epson may, however, from time to
time, issue updated versions of the Software and the Software may automatically
connect to servers on the Internet to check for available Updates to the
Software.
3.1 Other Rights and
Limitations.
You
shall use the Software in a manner permitted herein. You agree not to (i)
modify, adapt, translate or make any derivative works from the Software and
(ii) attempt to reverse engineer, decompile, disassemble or otherwise attempt
to discover the source code of the Software. You shall not share, rent, lease,
encumber, sublicense, lend or distribute the Software.
3.2 Protection and Security.
You
agree to use your best efforts and take all reasonable steps to safeguard the
Software to ensure that no unauthorized person has access to it and that no
unauthorized copy, publication, disclosure or distribution of the Software is
made. You acknowledge that the
Software contains valuable, confidential information and trade secrets and that
unauthorized use and copy are harmful to Epson. You shall hold in strict
confidence the Software and any information obtained in connection with the
Software.
4.1 Ownership.
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 agree not
to 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.
4.2 Digital Contents.
The
Software may contain images, illustrations, designs and photos (the
“Materials”), and the copyright of the Materials belongs to Epson or its
licensor(s). The Materials are protected by national and/or international
intellectual property laws, conventions and treaties. You shall also abide by
the following conditions in addition to the terms and conditions set forth
herein.
(1)
You may not use the Materials for the commercial purpose including, but not
limited to selling or advertising. The Materials shall be used for the purpose
of using the Software only.
(2)
The Materials shall be edited, adjusted and copied in the manner designated by
the Software only.
(3)
You may use the Materials and printed Materials by using the Software only for
lawful personal use, home use or as otherwise legally permitted.
5. Open Source and Other
Third-Party Components.
Notwithstanding
the foregoing license grant, you acknowledge that certain components of the
Software may be covered by third-party licenses, including so-called “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.
6. [intentionally left blank]
7. Disclaimer of Warranty and
Remedy.
Subject
to Section 25 (which may apply to you if you acquire goods and services from
Epson in Australia), Epson warrants that the media on which the Software is
recorded will be free from defects in workmanship and materials under normal
use for a period of 90 days from the date of delivery to you. If the media is
returned to Epson or the dealer from which the media was obtained within 90
days of the date of delivery to you, and if Epson determines the media to be
defective and provided the media was not subject to misuse, abuse,
misapplication or use in defective equipment, Epson will replace the media,
upon your return to Epson of the Software, including all copies of any portions
thereof. You acknowledge and agree that the use of the Software is at your sole
risk. UNLESS OTHERWISE PROVIDED HEREIN, THE SOFTWARE IS PROVIDED "AS
IS" AND WITHOUT ANY WARRANTY OF ANY KIND. EPSON DOES NOT AND CANNOT WARRANT THE
PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EPSON MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE.
8. 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), IN NO EVENT WILL EPSON BE LIABLE TO YOU,
WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
BREACH OR WARRANTY, MISREPRESENTATION OR OTHERWISE, FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS
OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS, 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, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN THE EVENT LIMITATION OF LIABILITY
HEREUNDER IS FOUND INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THE AGGREGATE LIABILITY OF EPSON TO YOU FOR ANY DAMAGES OR LOSS
SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO EPSON IN CONSIDERATION OF THE
SOFTWARE.
9. U.S. Government Acquisition
of the Software.
If
you are acquiring the Software on behalf of any unit or agency of the United
States Government, the following provisions apply. The Government agrees:
(i)
if the Software is supplied to the Department of Defense (DoD), the Software is
classified as "Commercial Computer Software" and the Government is
acquiring only "restricted rights" in the Software and its
documentation as that term is defined in Clause 252.227-7013(c)(1) of the
DFARS; and
(ii)
if the Software is supplied to any unit or agency of the United States
Government other than DoD, the Government's rights in the Software and its
documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in
the case of NASA, in Clause 18-52.227-86(d) of the NASA supplement to the FAR.
10. Export Restriction.
You
agree that the Software will not be shipped, transferred or exported into any
country or used in any manner prohibited by the United States Export
Administration Act or any other export laws, restrictions or regulations.
11. Entire Agreement.
Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia), 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.
12. Termination.
Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia), without prejudice to any other rights Epson has, your
license rights under Section 1 above and your warranty rights under Section 7
above, shall automatically terminate upon failure by you to comply with this
Agreement. Upon termination of such rights, you agree that the Software, and all
copies thereof, will be immediately destroyed. You may also terminate this
Agreement at any time by uninstalling and destroying the Software.
13. Transmission of Information.
When
you input the serial number, the Software connects over the Internet and
transmits data and/or information regarding your hardware to and from a server
operated by or on behalf of Epson. Such data and/or information include, but
not limited to, the information for identifying the Device that is generated by
the Software, the serial number, the IP address, the model of your printer. Epson
may use such data and/or information for any purposes including, but not
limited to the statistical purposes to improve the level of service Epson
provides to users and the management purpose of appropriate licenses. Epson
does not collect any personally identifiable information without your
permission.
14 Modifications.
Epson
may change, modify or otherwise alter this Agreement in its sole discretion at
any time with or without notice to you, only if the modification does not
affect the interpretation of this Agreement including, but not limited to
correcting typographical errors. By using the Software after any such changes
have been made, you are deemed to agree with, and to be bound by, the modified
Agreement. You shall review this Agreement on a regular basis to acknowledge
such changes.
15 Languages.
Any
translation of this Agreement is provided solely for your convenience and is
not intended to modify the terms and conditions of this Agreement. In the event
of a conflict between the Japanese version and any versions in other languages
of this Agreement, the Japanese version shall prevail and govern.
16 Governing Law and
Jurisdiction.
This
Agreement shall be governed by and construed under the laws of Japan without
regard to its conflicts of law rules. You agree to exclude the application of
the United Nations Convention on Contracts for the International Sales of
Goods. If any provision herein is found invalid or unenforceable by a court of
competent jurisdiction, it will not affect the validity of the balance of this
Agreement, which shall remain valid and enforceable according to its terms.
17. [intentionally left blank]
18. [intentionally left blank]
(IF
YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 19-23 APPLY TO
YOU)
19. Epson Preferred Installation
Program
The
Epson Preferred Installation Program gives you specific legal rights, which
vary from jurisdiction to jurisdiction.
Some jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitations or exclusions may
not apply to you.
20. Governing Law
Except
for claims subject to arbitration pursuant to Section 22, you and Epson agree
that the law of the state or country where you reside shall govern.
21. Jurisdiction
Except
for claims subject to arbitration pursuant to Section 22, in the event of a
dispute you and Epson both consent to the jurisdiction of the courts in your
state of residence or, if you do not reside in a state, then of the courts in
Los Angeles County, California.
22. DISPUTES, BINDING INDIVIDUAL
ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
22.1 Disputes.
The
terms of this Section 22 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 22.6(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.
22.2 Initial Dispute Resolution.
Before
submitting a claim for arbitration in accordance with this Section 22, 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
22.6. 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 22. 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 22.6(a), you and Epson agree that any disagreements regarding
compliance with this Section 22.2 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 22.2, 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 22.2 is
complete. You and Epson acknowledge that either party’s failure to comply with
the provisions of this Section 22.2 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 22.2 is complete.
22.3 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 22.2 above,
then either party may initiate binding arbitration. Except as stated below in
Section 22.4, 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 22.6(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 22.6(g) and 22.6(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 22, (b) this Agreement
memorializes a transaction in interstate commerce, and (c) this Section 22
shall survive termination of this Agreement.
22.4 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.
22.5 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 22.3 shall be deemed null and void in its entirety and the parties
shall be deemed to have not agreed to arbitrate disputes.
22.6 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 22 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.
The
arbitrator is bound by the terms of this Agreement. The arbitrator, and not any
federal, state or local court or agency, shall have exclusive authority to
resolve all disputes arising out of or relating to the interpretation,
applicability, enforceability or formation of this Agreement, including any
claim that all or any part of this Agreement is void or voidable.
Notwithstanding this broad delegation of authority to the arbitrator, and
consistent with Sections 22.1, 22.2, 22.6(a) and 22.6(h) of this Agreement, a
court may determine: (i) the limited question of whether a claim or cause of
action is for an IP Claim, which is excluded from the definition of “Disputes”
in Section 22.1 above; (ii) disagreements regarding compliance with the initial
dispute resolution provisions in Section 22.2 above; (iii) disagreements
regarding claims for public injunctive relief as set forth in this Section 22.6(a);
and/or (iv) disagreements regarding the provisions for “Mass Arbitration” in
Section 22.6(h) below.
(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 22.6(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.
(ii)
Send three copies of the demand for arbitration, plus the appropriate filing
fee, to: JAMS, 500 North State College Blvd., Suite 600 Orange, CA 92868,
U.S.A.
(iii)
Send one copy of the demand for arbitration to the other party (at the same
address as the notice of a dispute, above in section 22.2), or as otherwise
agreed by the parties.
(h)
Initiation of Mass Arbitration Before FedArb.
Notwithstanding
Sections 22.3 and 22.6(g), if 20 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”.
If
a Mass Arbitration is commenced, you and we agree that it shall not be governed
by JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be
administered by FedArb, a nationally recognized arbitration provider, and
governed by the FedArb Rules in effect when the Mass Arbitration is filed,
excluding any rules that permit arbitration on a class-wide basis (the “FedArb
Rules”), and under the rules set forth in this Agreement. The FedArb Rules are
available at https://www.fedarb.com/ or by calling
1-650-328-9500. You and we agree that the Mass Arbitration shall be resolved
using FedArb’s Framework for Mass Arbitration Proceedings ADR-MDL, available at
https://www.fedarb.com/.
Before
any Mass Arbitration is filed with FedArb, you and we agree to contact FedArb jointly
to advise that the parties intend to use FedArb’s Framework for Mass
Arbitration Proceedings ADR-MDL. The individual demands comprising the Mass
Arbitration shall be submitted on FedArb’s claim form(s) and as directed by
FedArb.
Consistent
with Section 22.6(a) above, you and Epson agree that if either party fails or
refuses to commence the Mass Arbitration before FedArb, you or Epson may seek
an order from a court of competent jurisdiction compelling compliance with this
Section 22.6(h) and compelling administration of the Mass Arbitration before
FedArb. Pending resolution of any such requests to a court, you and we agree
that all arbitrations comprising the Mass Arbitration (and any obligation to
pay arbitration fees) shall be stayed. You and Epson acknowledge that either
party’s failure to comply with the provisions of this Section 22.6(h) would
irreparably harm the other, and you and Epson agree that a court may issue an
order staying the arbitrations (and any obligation to pay arbitration fees) until
any disagreements over the provisions of this Section 22.6(h) are resolved by
the court.
22.7 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
22.3 to 22.6 of this Agreement by sending a written letter to the Epson address
listed above in Section 22.2 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 22. 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 22, 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.
22.8 Amendments to Section 22.
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 22 (or resolve disputes as
provided for in Section 22, if you timely elected to opt-out) when you first
assented to this Agreement.
22.9 Severability.
If
any provision in this Section 22 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 22.5. This means that if Section 22.5 is found
to be unenforceable, the entire Section 22 (but only Section 22) shall be null
and void.
23. For New Jersey Residents.
NOTWITHSTANDING
ANY TERMS SET FORTH IN THIS AGREEMENT, IF ANY OF THE PROVISIONS SET FORTH IN
SECTIONS 7 OR 8 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.
THE
FOLLOWING SECTIONS 24-32 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 24-32 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.
27.1
Section
7 (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; and (3) EPSON MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE.
27.2 Section 1.2 (Third
Party Information) will not apply to you. The following section will apply
instead:
you
may set a print setting file (the "Provided Files") provided
separately by Epson, and you have the option to use certain functions to assist
the compatibility and use with the printer and the media of your choice. The
media is provided by an independent third party. Listing of media in the
Provided Files shall not be construed as an endorsement of any particular media
or manufacturer. The information contained herein is subject to change without
notice.
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:
(A) Epson makes
no representation or warranty of any kind for any media in Provided Files
including but not limited to media availability or media quality.
(B) Epson makes
no representation as to the information's completeness or accuracy;
(C) Epson shall
not be liable for technical or editorial errors or omissions contained herein;
(D) THIS
INFORMATION IS PROVIDED, “AS IS” BY EPSON; and
(E) EPSON MAKES
NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND REGARDING THIS INFORMATION.
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 - 32 will apply to you.
29. Limitation of Liability.
Section
8 will not apply to you. The following section will apply instead of:
Subject
to Section 25, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY, WHETHER
ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH
OR WARRANTY, MISREPRESENTATION OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS
OF BUSINESS PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION OR DATA, 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, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN THE EVENT LIMITATION OF
LIABILITY HEREUNDER IS FOUND INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THE AGGREGATE LIABILITY OF THAT PARTY TO THE OTHER PARTY FOR ANY
DAMAGES OR LOSS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO EPSON IN
CONSIDERATION OF THE SOFTWARE.
30. Upgrades and Updates.
Where
Epson automatically updates the Software under Section 2 (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. Entire Agreement.
Section
11 (Entire Agreement) will not apply to you.
32. 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. You may also terminate this
Agreement at any time by uninstalling and destroying the Software.
2023