EPSON END USER SOFTWARE
LICENSE AGREEMENT
NOTICE
TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE 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 24-36 OF THIS DOCUMENT MAY APPLY
TO YOU. SECTIONS 25 AND 28 DESCRIBE WHEN THESE SECTIONS MAY APPLY. SECTIONS
24-36 SET OUT MANDATORY STATUTORY PROTECTIONS WHICH CANNOT BE EXCLUDED UNDER
LAW. WHERE INDICATED, OTHER TERMS IN THIS AGREEMENT ARE SUBJECT TO SECTIONS
24-36.
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”). The Software is provided by Epson and its suppliers for use
only with the corresponding Epson brand computer peripheral product (the “Epson
Hardware”). BEFORE INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU
NEED TO REVIEW AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
INCLUDING THE EPSON PRIVACY POLICY stated in Section 17. If you agree, click on
the Agree (“ACCEPT”, “OK” or any similar representation of agreement) button
below if any. If you do not agree with the terms and conditions of this
Agreement, click on the Disagree (“EXIT”, “Cancel” or any similar
representation of disagreement) button if any and return the Software, along
with the packaging and related materials, to Epson or the place of purchase for
a full refund.
1. Grant of License.
Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia), Epson grants you a limited, nonexclusive license to
download, install and use the Software for your personal and internal business
use on hard disks or other computer storage devices, or in the case of a
software application (also referred to as “Software”), on the smartphone,
tablet, or other mobile device (collectively, “Device”), provided that the
Software is used (i) only in a single location (e.g., a home or office
or place of business), or in the case of a mobile device, on a Device owned or
otherwise controlled by you, and (ii) only in connection with Epson
Hardware owned by you. You may allow other users of the Epson Hardware
connected to your network to use the Software, provided that you shall ensure
that such users use the Software only in accordance with this Agreement. You
agree to be responsible for and indemnify Epson for liabilities incurred as a
consequence of use by such users. You may make backup copies of the Software,
as necessary, provided the backup is only used to support your use of the Epson
Hardware.
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 upgrade, updated version, modified version, or additions to or for the
Software from Epson, the upgrade, updated version, modified version, or
addition, 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 (as defined below in this Section 2) 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 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. In case
you installed the EPSON Software Updater separately but do not wish to allow
Epson to check for available updates to the Software, you may disable this
feature by uninstalling EPSON Software Updater. By installing the Software and
not disabling any automated check for Updates, if applicable, you hereby agree
and consent to automatically request and receive Updates from Epson or
third-party servers, and that the terms and conditions of this Agreement shall
apply to all of these Updates.
3. Other Rights and
Limitations.
You
agree not to modify, adapt or translate the Software and an ICC profile in a
media information file through the Software (the "ICC Profile") and
further agree not to attempt to reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code of the Software and the ICC
Profile. You may not rent, lease, distribute, lend the Software and the ICC
Profile to third parties or incorporate the Software and the ICC Profile into a
revenue generating product or service. You may, however, transfer all of your
rights to use the Software to another person or legal entity, provided that the
recipient also agrees to the terms of this Agreement and you transfer the
Software, including all copies, updates and prior versions, and the Epson Hardware,
to such person or entity. The Software is licensed as a single unit, and its
component programs may not be separated for some other use. The ICC Profile is
licensed for use with the Software and may not be used separately from the
Software. Further, you agree not to place the Software and the ICC Profile onto
or into a shared environment accessible via a public network such as the
Internet or otherwise accessible by others outside the single location referred
to in Section 1 above.
4. 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. The Software may also
contain images, illustrations, designs and photos (“Materials”), and the
copyright of such material belongs to Epson and/or its licensors and suppliers,
protected by national and/or international intellectual property laws,
conventions and treaties. For clarity, (1) the Materials shall be used for
non-commercial purposes only, (2) the Materials shall be edited, adjusted and
copied only in the manner designated by the Software, and (3) you may use the
Materials 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. Multiple Versions of
Software.
You
may receive or obtain the Software in more than one version (e.g. for different
operating environments; two or more language translation versions; downloaded
from an Epson server or on a CD-ROM), however, regardless of the type or number
of copies you receive, you still may use only the media or version appropriate
for the license granted in Section 1 above.
7. Disclaimer of Warranty and
Remedy.
Subject
to Section 25 and/or 28 (which may apply to you if you acquire goods and
services from Epson in Australia):
7.1 If you obtained the
Software by media from Epson or a dealer, 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. 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. 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. Epson’s sole and exclusive liability and your
exclusive remedy for breach of warranty shall be limited to either, at Epson’s
option, the replacement of the media for the Software or to refund your money
upon returning the Software and Epson Hardware. Any replacement Software will
be warranted for the remainder of the original warranty period or thirty (30)
days, whichever is longer. If the above remedy fails for any reason, Epson’s
entire liability for a breach of warranty 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. THE STATED LIMITED WARRANTIES 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.
7.2 Epson does not warrant
that the printer status displayed by the software matches the printer status
confirmed by Epson Hardware.
7.3 You may install a
print setting file provided separately by Epson (the "Provided
Files") into the Software, which is a function to support compatibility
between your printers and media provided by third parties and to support the
use of such media with the Software. The inclusion of such media in the
Provided Files shall not be construed as an endorsement by Epson 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 in Provided Files 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 IN THE PROVIDED FILES.
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), 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 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 EPSON OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. 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.
9. 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
that the Software qualifies as “commercial” computer software within the
meaning of FAR Part 12, paragraph (b) of FAR Subpart 27.405, or DFARS Subpart
227.7202, as applicable, and that no other regulation, or FAR or DFARS data
rights clause, applies to the delivery of this Software to the Government.
Accordingly, 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 FAR and DFARS provisions do not govern, the
Government agrees to return the Software, unused, to Epson.
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. 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.
13. Severability; Modifications.
If
any provision herein is found void or unenforceable by a court of competent
jurisdiction (subject to Section 22.8 and 22.9 if you are a located in the
U.S.), 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.
14. Indemnification.
Subject
to Section 28 (which may apply to you if you acquire goods and services from
Epson in Australia), you agree that you will indemnify and hold harmless, and
upon Epson’s request, defend 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 arising from (i) any breach of any of your obligations in this Agreement
or (ii) any use of the Software or the Epson Hardware. If Epson asks you to
defend any such action, suit or claim, Epson will have the right, at its own
expense, to participate in the defense thereof with counsel of its choice. You
will not settle any third-party claims for which Epson is entitled to
indemnification without the prior written approval of Epson.
15. 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.
16. 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 to
enter into this Agreement, including, if applicable, due authorization by your
employer to enter into this Agreement.
17. 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 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 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 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.
18. Third Party 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.
(IF
YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 19-23 APPLY TO
YOU)
19. Ink Purchases.
For
certain Epson printer products sold in North America, the Software may also
display an option to buy ink from Epson. If you click on the buy button, the
Software will cause your Device to display Epson Hardware cartridge types and
ink levels and provide other information about your cartridges, such as the
colors, available cartridge sizes, and prices for replacement ink cartridges,
which you may purchase online from Epson.
20. Downloadable Updates.
You
may also be able to download from an Epson Internet site updates or upgrades to
the Software if such updates or upgrades are made available. If you agree to
install the Software, any transmissions to or from the Internet, and data
collection and use, will be in accordance with Epson’s then-current Privacy
Policy, and by installing the Software you agree that such then-current Privacy
Policy shall govern such activities.
21. 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, and provided your
consent to such use, you agree that Epson may merge the data collected in
connection with installation of the Software, registration of your Epson
Hardware and/or creation of your Epson Store account, consisting of personal
information and non-personally identifiable information, and use such merged
data to send you Epson promotional or service information. If you do not wish
to send information about your Epson Hardware or receive promotional or service
information, you will be able to disable these features on a Windows system
through the Monitoring Preferences section in the driver. On a Mac operating
system, you can disable these features by uninstalling the Epson Customer
Research Participation and Low Ink Reminder software.
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 24-36 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 24-36 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 (other than
goods acquired for the purpose of resupply) 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 7.1 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.
27.2 Section 7.2 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, Epson does not warrant that the printer status displayed by the
software matches the printer status confirmed by Epson Hardware.
27.3 Section 7.3 will not apply
to you. The following section will apply instead:
You
may install a print setting file provided separately by Epson (the
"Provided Files") into the Software, which is a function to support
compatibility between your printers and media provided by third parties and to
support the use of such media with the Software. The inclusion of such media in
the Provided Files shall not be construed as an endorsement by Epson of any
particular media or manufacturer. The information contained in Provided Files
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 any
loss, damage, liability, penalty, fine, charge, expense, payment or costs of
any nature or kind arising out of any technical or editorial errors or
omissions contained herein, except to the extent caused by the mistake,
negligence, fraud or wilful misconduct of Epson or
its employees, officers, contractors or agents;
(D) THIS INFORMATION IS PROVIDED, “AS
IS” BY EPSON; and
(E) EPSON MAKES NO EXPRESS OR IMPLIED
WARRANTY OF ANY KIND REGARDING THIS INFORMATION IN THE PROVIDED FILES.
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 - 36 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 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. Grant of License.
The
obligation to indemnify Epson set out in Section 1 (Grant of License) does not
apply to you. You acknowledge and agree that you are responsible and liable for
any act and omission of other users you allow to use the Software as though it
were an act or omission by you.
31. Upgrades and Updates.
Subject
to section 25, 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.
32. Entire Agreement.
Section
11 (Entire Agreement) will not apply to you.
33. 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.
34. Indemnification.
Section
14 (Indemnification) will not apply to you.
35. Termination.
Section
15 (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.
36. Capacity and Authority to
Contract.
In
addition to the representation made by you in Section 16 (Capacity and
Authority to Contract), Epson represents that it has all necessary authority to
enter into this Agreement.
2023