EPSON END USER SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: PLEASE
READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS SOFTWARE
PROGRAMS.
IF YOU ACQUIRE THIS
SOFTWARE 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 Epson (Epson means Seiko Epson Corporation or affiliated companies
of Seiko Epson Corporation according to your residence (for entity, referring
to the location of the head office, and collectively referred to as
“Residence”), collectively referred to hereinafter as the “Epson”) for the
software programs covered by this Agreement, including any related
documentation, firmware, or updates (collectively referred to hereinafter as
the “Software”).
Use of the Software
requires Epson Hardware (i.e. a controller incorporating 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 DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT,
YOU MAY NOT INSTALL OR USE THE SOFTWARE. By installing or using the Software,
you are deemed to have agreed to this Agreement, and this Agreement becomes
effective between you and the Epson.
If you do not agree to the
terms and conditions of this Agreement and therefore choose not to begin using
the Software, return the Software, along with the Epson Hardware, to Epson or
to the supplier from whom you obtained the Software for a full refund.
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.
Please note that some of
software programs accompanying the Software may require the purchase of a
separate paid license in order to make them available for your use. You are
responsible for purchasing the license.
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) Use the Software solely for
the purpose of operating Epson brand controller (the “Epson Hardware” or the
“Device”) controlled by you.
Notwithstanding the foregoing
license grant, you may transfer all of your rights to
use the Software to another person or legal entity, provided that:
(a) The recipient also agrees
to the terms of this Agreement; and
(b) You transfer all of the
enclosed materials of this Agreement, including this Agreement, and the Epson
Hardware to such person or entity.
Your license rights under this
Section will automatically terminate upon such transfer.
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 agree to comply with any technical limitations in the Software
that allow you to use the Software only in certain ways and not to use the
Software in any ways that circumvents any technical limitations in the
Software. You may not sublicense, rent, lease, distribute, lend the Software to
third parties, except as otherwise authorized herein. 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 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, COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, CURRENCY,
COMPLETENESS, AND ACCURACY. 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
THE EXERCISE OF RIGHTS UNDER THIS AGREEMENT, 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. Export Restriction. You agree that the
Software will not be shipped, transferred or exported into any country or used
in any manner prohibited by export control laws in the United States and other
countries 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, COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS,
RECENCY, COMPLETENESS, AND ACCURACY.
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 THE
EXERCISE OF RIGHT UNDER THIS AGREEMENT, OR ARISING OUT OF THIS AGREEMENT, EVEN
IF THAT PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. UNLESS THE ABOVE RESTRICTIONS APPLY, EPSON’S TOTAL LIABILITY FOR
DAMAGES (CUMULATIVE LIABILITY) SHALL BE LIMITED TO THE PURCHASE PRICE OF THE
EPSON HARDWARE.
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.
24. Other Governing Law and General Matters
(IF YOU ARE LOCATED
IN JAPAN, THE FOLLOWING SECTION APPLYS TO YOU)
24.1 Governing
Law and Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of Japan, without giving effect to its conflicts of
laws provisions. In case of any dispute regarding the Software between you and
Epson, the Tokyo District Court shall be the agreed court with exclusive
jurisdiction. The application of the United Nations Convention of Contracts for
the International Sale of Goods is expressly excluded in all cases.
(IF YOU ARE
LOCATED IN EUROPE, MIDDLE EAST and AFRICA, THE FOLLOWING SECTION APPLYS TO YOU)
24.2 Governing
Law and Jurisdiction. This section shall apply to all disputes between you
and Epson. Any dispute between you and Epson, whether in contract or in tort,
shall be heard and determined by the courts of Amsterdam in the Netherlands,
unless we give notice to you requiring it to be heard and determined in a
country in which you have you Residence. You irrevocably consent to the
registration and enforcement in and by the courts of any other country of any
judgement obtained against you in the Courts of Amsterdam in the Netherlands,
or such other permitted country, and undertake not to challenge or obstruct any
such registration or enforcement proceedings.
(IF YOU ARE
LOCATED IN SOUTHEAST ASIA, THE FOLLOWING SECTION APPLYS TO YOU)
24.3 Governing
Law and Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the country in which you have Residence. This
section shall apply to all disputes between you and Epson. Any dispute,
controversy or claim arising out of or relating to this Agreement, or the
breach, termination or invalidity thereof shall be settled by arbitration in
accordance with the UNCITRAL Arbitration Rules as at present in force and to be
administered by the Singapore International Arbitration Centre. The number of
arbitrators shall be one (1), and such arbitrator shall be appointed by Epson.
The place and seat of arbitration shall be the country in which you have
Residence, unless otherwise determined by Epson. You agree that the decision of
the arbitrator shall be final and binding, and you undertake not to challenge
or obstruct any such registration or enforcement proceedings. The language used
in the arbitration proceedings shall be English.
(IF YOU ARE
LOCATED IN CHINA, THE FOLLOWING SECTION APPLYS TO YOU)
24.4 Governing
Law and Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the People's Republic of China. All disputes
arising from or in connection with this Agreement shall be resolved through
friendly consultation. If such disputes cannot be resolved through such
consultation, such disputes shall be submitted to Beijing Arbitration
Commission for arbitration in accordance with its rules of arbitration in
effect at the time of applying for arbitration. The seat of arbitration shall
be Beijing. The arbitral award is final and binding upon both parties.
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