EPSON END USER SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: PLEASE
READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS PRODUCT.
IF YOU ACQUIRE THIS
PRODUCT IN AUSTRALIA, SECTIONS 17-19 OF THIS DOCUMENT MAY APPLY TO YOU.
SECTIONS 18.1 AND 19.1 DESCRIBE WHEN THESE SECTIONS MAY APPLY. SECTIONS 17-19
SET OUT MANDATORY STATUTORY PROTECTIONS WHICH CANNOT BE EXCLUDED UNDER LAW.
WHERE INDICATED, OTHER TERMS IN THIS AGREEMENT ARE SUBJECT TO SECTIONS 17-19.
IF YOU ARE LOCATED IN
THE UNITED STATES, SECTIONS 20-23 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.
This is a legal agreement
(“Agreement”) between you (an individual or entity, referred to hereinafter as
“you”) and Seiko Epson Corporation and/or its affiliates (“Epson”) for the
enclosed software programs, including any related documentation, firmware, or
updates (collectively referred to hereinafter as the “Software”). 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 16. 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 your
compliance with the terms and conditions of this Agreement, Epson grants you a
limited, nonexclusive, nonsublicensable and nonassignable license to:
(i) install and use the
Software on a computer controlled by you solely for the purpose of simulating Epson
brand robot (the “Epson Hardware”) on a trial basis and solely in a state
without connection to the Epson Hardware. A trial
license does not entitle you to receive any support for the Software, including
upgrade, updated version, modified version, or
additions to or for the Software.
2. Upgrades and Updates. Epson may, from
time to time, issue an upgrade, updated version, modified version, or additions
to or for the Software (collectively, “Updates”). You acknowledge that Epson
has no obligation to provide you with any Updates to the Software.
3. Other Rights and Limitations. You agree
not to use or copy the Software in any way, except as otherwise licensed
herein, or transfer your rights licensed under this Agreement in any way,
except as otherwise licensed herein. You agree not to modify, adapt or
translate the Software and further agree not to attempt to reverse engineer,
decompile, disassemble or otherwise attempt to discover the source code of the
Software. You may not rent, lease, distribute, lend the Software to third
parties. The Software is licensed as a single unit, and its component programs
may not be separated for some other use. Further, you agree not to place the
Software onto or into a shared environment accessible via a public network such
as the Internet or otherwise accessible by others other than licensed herein.
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.
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/storage media, 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. Disclaimer of Warranty and Remedy. Subject
to Section 18.1 (which may apply to you if you acquire goods and services from
Epson in Australia), 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, exclusive and
entire liability and your exclusive remedy for breach of warranty shall be
limited to a refund of the price paid for the Software. 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. Limitation of Liability. Subject to
Section 18.1 and/or 19.1 (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.
8. 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.
9. 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.
10. Entire Agreement. Subject to Section 19.1
(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.
11. 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.
12. Severability. 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.
13. Indemnification. Subject to Section 19.1
(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. 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.
14. Termination. 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.
15. 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 to enter into this
Agreement, including, if applicable, due authorization by your employer to
enter into this Agreement. Epson represents that it has all necessary authority
to enter into this Agreement.
16. 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 and/or the
Software such as model and serial number, country identifier, language code,
operating system information, and 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.
(THE FOLLOWING SECTIONS 17-19 OF THIS DOCUMENT MAY APPLY TO YOU IF
YOU ACQUIRE GOODS OR SERVICES IN AUSTRALIA (SEE SECTIONS 18.1 AND 19.1 FOR
FURTHER INFORMATION AS TO WHEN THESE SECTIONS APPLY)
17. Definition. For the purpose of the
following Sections 18-19 of this Agreement, the Australian Consumer Law means
Schedule 2 of the Competition and Consumer Act 2010 (Cth).
18.1 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 18.2 and 18.3.
18.2 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.
18.3 Disclaimer of Warranty and Remedy. Section
6 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.
19.1 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 19.2-19.3 will apply to you.
19.2 Limitation of Liability. Section 7 will
not apply to you. The following section will apply instead:
Subject to Section 18.1, 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.
19.3 Entire
Agreement; Indemnification. Sections 10 (Entire Agreement) and 13 (Indemnification)
will not apply to you.
(IF YOU ARE
LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 20-23 APPLY TO YOU)
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 6 OR 7 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.
2022