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Please read out COPYING.EPSON and Privacy Statement
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(http://download.ebz.epson.net/ps/linux/).
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EPSON END USER SOFTWARE LICENSE AGREEMENT
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NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING
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THIS PRODUCT. IF YOU ARE LOCATED IN THE UNITED STATES, SECTIONS 19-23 OF THIS
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DOCUMENT APPLY TO YOU. SECTION 22 CONTAINS A BINDING ARBITRATION PROVISION THAT
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LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT BEFORE A JUDGE OR JURY, AND WAIVES
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YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS FOR CERTAIN
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DISPUTES. AN “OPT-OUT” IS AVAILABLE UNDER SECTION 22.7 FOR THOSE WHO WISH TO BE
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EXCLUDED FROM THE ARBITRATION AND CLASS WAIVER.
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This is a legal agreement (“Agreement”) between you (an individual or entity,
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referred to hereinafter as “you”) and Seiko Epson Corporation (including its
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affiliates, “Epson”) for the enclosed software programs, including any related
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documentation, firmware, or updates (collectively referred to hereinafter as the
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“Software”). The Software is provided by Epson and its suppliers for use only
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with the corresponding Epson brand computer peripheral product (the “Epson
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Hardware”). BEFORE INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU NEED
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TO REVIEW AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THE
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EPSON PRIVACY POLICY stated in Section 17. If you agree, click on the Agree
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(“ACCEPT”, “OK” or any similar representation of agreement) button below. If
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you do not agree with the terms and conditions of this Agreement, click on the
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Disagree (“EXIT”, “Cancel” or any similar representation of disagreement) button
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and return the Software, along with the packaging and related materials, to
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Epson or the place of purchase for a full refund.
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1. Grant of License. Epson grants you a limited, nonexclusive license to (i)
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download, install and use the Software for your personal and internal business
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use on hard disks or other computer storage devices, or in the case of a
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software application (also referred to as “Software”), on the smartphone,
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tablet, or other mobile device (collectively, “Device”), provided that the
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Software is used (i) only in a single location (e.g., a home or office or place
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of business), or in the case of a mobile device, on a Device owned or otherwise
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controlled by you, and (ii) only in connection with Epson Hardware owned by you.
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You may allow other users of the Epson Hardware connected to your network to
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use the Software, provided that you shall ensure that such users use the
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Software only in accordance with this Agreement. You agree to be responsible
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for and indemnify Epson for liabilities incurred as a consequence of use by such
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users. You may make backup copies of the Software, as necessary, provided the
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backup is only used to support your use of the Epson Hardware.
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2. Upgrades and Updates. If you acquire an upgrade, updated version, modified
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version, or additions to or for the Software from Epson, the upgrade, updated
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version, modified version, or addition, shall be included in the defined term
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Software and governed by this Agreement. You acknowledge that Epson has no
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obligation to provide you with any Updates (as defined below in this Section 2)
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to the Software. Epson may, however, from time to time, issue updated versions
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of the Software and the Software may automatically connect to Epson or
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third-party servers via the Internet to check for available updates to the
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Software, such as bug fixes, patches, upgrades, additional or enhanced
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functions, plug-ins and new versions (collectively, “Updates”) and may either
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(a) automatically electronically update the version of the Software that you are
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using on your personal device or (b) give you the option of manually downloading
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applicable Updates. If you installed the EPSON Software Updater and do not wish
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to allow Epson to check for available updates to the Software, you may disable
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this feature by uninstalling EPSON Software Updater. By installing the Software
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and not disabling any automated check for Updates, if applicable, you hereby
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agree and consent to automatically request and receive Updates from Epson or
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third-party servers, and that the terms and conditions of this Agreement shall
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apply to all of these Updates.
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3. Other Rights and Limitations. You agree not to modify, adapt or translate
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the Software and further agree not to attempt to reverse engineer, decompile,
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disassemble or otherwise attempt to discover the source code of the Software.
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You may not rent, lease, distribute, lend the Software to third parties or
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incorporate the Software into a revenue generating product or service. You may,
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however, transfer all of your rights to use the Software to another person or
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legal entity, provided that the recipient also agrees to the terms of this
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Agreement and you transfer the Software, including all copies, updates and prior
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versions, and the Epson Hardware, to such person or entity. The Software is
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licensed as a single unit, and its component programs may not be separated for
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some other use. Further, you agree not to place the Software onto or into a
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shared environment accessible via a public network such as the Internet or
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otherwise accessible by others outside the single location referred to in
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Section 1 above.
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4. Ownership. Title, ownership rights, and intellectual property rights in and
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to the Software shall remain with Epson or its licensors and suppliers. The
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Software is protected by United States Copyright Law, copyright laws of Japan
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and international copyright treaties, as well as other intellectual property
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laws and treaties. There is no transfer to you of any title to or ownership of
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the Software and this License shall not be construed as a sale of any rights in
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the Software. You agree not to remove or alter any copyright, trademark,
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registered mark and other proprietary notices on any copies of the Software.
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Epson and/or its licensors and suppliers reserve all rights not granted. The
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Software may also contain images, illustrations, designs and photos
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(“Materials”), and the copyright of such material belongs to Epson and/or its
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licensors and suppliers, protected by national and/or international intellectual
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property laws, conventions and treaties. For clarity, (1) the Materials shall
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be used for non-commercial purposes only, (2) the Materials shall be edited,
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adjusted and copied only in the manner designated by the Software, and (3) you
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may use the Materials only for lawful personal use, home use or as otherwise
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legally permitted.
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5. Open Source and Other Third-Party Components. Notwithstanding the foregoing
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license grant, you acknowledge that certain components of the Software may be
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covered by third-party licenses, including so-called “open source” software
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licenses, which means any software licenses approved as open source licenses by
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the Open Source Initiative or any substantially similar licenses, including
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without limitation any license that, as a condition of distribution of the
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software licensed under such license, requires that the distributor make the
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software available in source code format (such third-party components,
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“Third-Party Components”). A list of Third-Party Components, and associated
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license terms (as required), for particular versions of the Software is
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indicated at the end of this Agreement, relevant user manual/CD, or the license
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information displayed on your Device/in Software. To the extent required by the
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licenses covering Third-Party Components, the terms of such licenses will apply
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in lieu of the terms of this Agreement. To the extent the terms of the licenses
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applicable to Third-Party Components prohibit any of the restrictions in this
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Agreement with respect to such Third-Party Components, such restrictions will
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not apply to such Third-Party Component.
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6. Multiple Versions of Software. You may receive or obtain the Software in
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more than one version (e.g. for different operating environments; two or more
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language translation versions; downloaded from an Epson server or on a CD-ROM),
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however, regardless of the type or number of copies you receive, you still may
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use only the media or version appropriate for the license granted in Section 1
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above.
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7. Disclaimer of Warranty and Remedy. If you obtained the Software by media
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from Epson or a dealer, Epson warrants that the media on which the Software is
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recorded will be free from defects in workmanship and materials under normal use
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for a period of 90 days from the date of delivery to you. If the media is
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returned to Epson or the dealer from which the media was obtained within 90 days
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of the date of delivery to you, and if Epson determines the media to be
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defective and provided the media was not subject to misuse, abuse,
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misapplication or use in defective equipment, Epson will replace the media, upon
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your return to Epson of the Software, including all copies of any portions
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thereof. You acknowledge and agree that the use of the Software is at your sole
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risk. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND.
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EPSON AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU
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MAY OBTAIN BY USING THE SOFTWARE. Epson does not warrant that the operation of
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the Software will be uninterrupted, error free, free from viruses or other
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harmful components or vulnerabilities, or that the functions of the Software
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will meet your needs or requirements. Epson’s sole and exclusive liability and
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your exclusive remedy for breach of warranty shall be limited to either, at
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Epson’s option, the replacement of the media for the Software or to refund your
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money upon returning the Software and Epson Hardware. Any replacement Software
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will be warranted for the remainder of the original warranty period or thirty
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(30) days, whichever is longer. If the above remedy fails for any reason,
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Epson’s entire liability for a breach of warranty shall be limited to a refund
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of the price paid for the Epson Hardware. Epson is not liable for performance
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delays or for nonperformance due to causes beyond its reasonable control. This
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Limited Warranty is void if failure of the Software resulted from accident,
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abuse, or misapplication. THE STATED LIMITED WARRANTIES AND REMEDY ARE
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EXCLUSIVE AND IN LIEU OF ALL OTHERS. EPSON DISCLAIMS ALL OTHER WARRANTIES,
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EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF
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NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SOME
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STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF
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IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY NOT APPLY TO
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YOU.
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8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
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IN NO EVENT WILL EPSON OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER,
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WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER
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ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF
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WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES
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FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
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INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO
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USE THE SOFTWARE, OR ARISING OUT OF THIS AGREEMENT, EVEN IF EPSON OR ITS
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REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES
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DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TRANSACTIONS, AND
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IN SUCH STATES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
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9. U.S. Government Acquisition of the Software. This Section applies to all
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acquisitions of the Software by or for the U.S. Government (“Government”), or by
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any prime contractor or subcontractor (at any tier) under any contract, grant,
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cooperative agreement, “other transaction” (“OT”), or other activity with the
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Government. By accepting delivery of the Software, the Government, any prime
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contractor, and any subcontractor agree that the Software qualifies as
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|
“commercial” computer software within the meaning of FAR Part 12, paragraph (b)
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|
of FAR Subpart 27.405, or DFARS Subpart 227.7202, as applicable, and that no
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|
other regulation, or FAR or DFARS data rights clause, applies to the delivery of
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|
this Software to the Government. Accordingly, the terms and conditions of this
|
|
|
Agreement govern the Government’s (and the prime contractor and subcontractor’s)
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|
use and disclosure of the Software, and supersede any conflicting terms and
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|
conditions of the contract, grant, cooperative agreement, OT, or other activity
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pursuant to which the Software is delivered to the Government. If this Software
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|
fails to meet the Government’s needs, if this Agreement is inconsistent in any
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|
respect with Federal law, or if the above cited FAR and DFARS provisions do not
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govern, the Government agrees to return the Software, unused, to Epson.
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10. Export Restriction. You agree that the Software will not be shipped,
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|
transferred or exported into any country or used in any manner prohibited by the
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|
United States Export Administration Act or any other export laws, restrictions
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|
or regulations.
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11. Entire Agreement. This Agreement is the entire agreement between the
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|
parties related to the Software and supersedes any purchase order,
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|
communication, advertisement, or representation concerning the Software.
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12. Binding Agreement; Assignees. This Agreement shall be binding upon, and
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inure to the benefit of, the parties hereto and their respective successors,
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assigns and legal representatives.
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13. Severability; Modifications. If any provision herein is found void or
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unenforceable by a court of competent jurisdiction (subject to Section 22.8 and
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22.9 if you are a located in the U.S.), it will not affect the validity of the
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balance of the Agreement, which shall remain valid and enforceable according to
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its terms. This Agreement may only be modified in writing signed by an
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authorized representative of Epson.
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14. Indemnification. You agree that you will indemnify and hold harmless, and
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upon Epson’s request, defend Epson and its directors, officers, shareholders,
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|
employees and agents from and against any and all losses, liabilities, damages,
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|
costs, expenses (including reasonable attorneys’ fees), actions, suits, and
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|
claims arising from (i) any breach of any of your obligations in this Agreement
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|
or (ii) any use of the Software or the Epson Hardware. If Epson asks you to
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|
defend any such action, suit or claim, Epson will have the right, at its own
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|
expense, to participate in the defense thereof with counsel of its choice. You
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will not settle any third-party claims for which Epson is entitled to
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indemnification without the prior written approval of Epson.
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15. Termination. Without prejudice to any other rights Epson has, your license
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rights under Section 1 above and your warranty rights under Section 7 above,
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shall automatically terminate upon failure by you to comply with this Agreement.
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Upon termination of such rights, you agree that the Software, and all copies
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thereof, will be immediately destroyed.
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16. Capacity and Authority to Contract. You represent that you are of the legal
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age of majority in your state or jurisdiction of residence and have all
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necessary authority to enter into this Agreement, including, if applicable, due
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authorization by your employer to enter into this Agreement.
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17. Privacy, Information Processing. The Software may have the ability to
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connect over the Internet to transmit data to and from your Device. For
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example, if you install the Software, the Software may cause your Device to send
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information about your Epson Hardware such as model and serial number, country
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|
identifier, language code, operating system information, and Epson Hardware
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usage information to an Epson Internet site which may return promotional or
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service information to your Device for display. Any processing of information
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provided through the Software, shall be according to applicable data protection
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laws and the Epson Privacy Policy located at
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https://global.epson.com/privacy/area_select_confirm_eula.html. To the extent
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|
permitted by applicable laws, by agreeing to the terms of this Agreement and by
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|
installing the Software, you consent to the processing and storage of your
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information in and/or outside your country of residence. If there is a specific
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privacy policy incorporated into the Software and/or displayed when you use the
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Software (for example, in the case of certain software application software),
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such specific privacy policy shall prevail over the Epson Privacy Policy stated
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above.
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18. Third Party Websites. You may, through hypertext or other computer links
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from the Software, gain access to websites and use certain services that are not
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under the control of or operated by Epson, but rather are controlled by third
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parties. You acknowledge and agree that Epson is not responsible for such third
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party sites or services, including their accuracy, completeness, timeliness,
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|
validity, copyright compliance, legality, decency, quality, or any other aspect
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thereof. These third party websites/services are subject to different terms and
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|
conditions and when you access and use third party websites/services, you will
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|
be legally bound by the terms and conditions of those websites/services. If
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there is a conflict between this Agreement and terms and conditions of third
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|
party websites/services, the third party websites’/services’ terms and
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|
conditions will govern with respect to your access and use of those
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websites/services. Although Epson may provide a link to a third party
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website/service from the Software, such a link is not an authorization,
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|
endorsement, sponsorship or affiliation by Epson with respect to such
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|
website/services, its content, its owners or its providers. Epson provides such
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|
links for your reference and convenience only. Accordingly, Epson makes no
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|
representations whatsoever concerning such websites/services and does not
|
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|
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
|
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|
and therefore cannot make any representations whatsoever with respect thereto.
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|
You agree that Epson is not responsible for the content or operation of such
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|
websites/services, and it is up to you to take precautions to ensure that
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|
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
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|
which you link from this Software.
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(IF YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 19 - 23 APPLY
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TO YOU)
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19. Ink Purchases. For certain Epson printer products sold in North America,
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|
the Software may also display an option to buy ink from Epson. If you click on
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|
the buy button, the Software will cause your Device to display Epson Hardware
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|
cartridge types and ink levels and provide other information about your
|
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|
cartridges, such as the colors, available cartridge sizes, and prices for
|
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|
replacement ink cartridges, which you may purchase online from Epson.
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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
|
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|
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.
|
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|
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
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|
|
Software, registration of your Epson Hardware and/or creation of your Epson
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|
|
Store account, consisting of personal information and non-personally
|
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|
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
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|
|
disable these features on a Windows system through the Monitoring Preferences
|
|
|
section in the driver. On a Mac operating system, you can disable these
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|
|
features by uninstalling the Epson Customer Research Participation and Low Ink
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|
|
Reminder software.
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|
22. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND
|
|
|
CLASS ARBITRATIONS
|
|
|
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|
|
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 and includes any dispute, claim, controversy or action
|
|
|
between you and Epson arising out of or relating to this Agreement, the
|
|
|
Software, Epson Hardware, or other transaction involving you and Epson, whether
|
|
|
in contract, warranty, misrepresentation, fraud, tort, intentional tort,
|
|
|
statute, regulation, ordinance, or any other legal or equitable basis.
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|
|
“DISPUTE” DOES NOT INCLUDE IP CLAIMS, or more specifically, 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”). You and Epson also agree, notwithstanding Section 22.6, that a court,
|
|
|
not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
|
|
|
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|
|
22.2 Binding Arbitration. 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
|
|
|
GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this Agreement, binding arbitration
|
|
|
shall be administered by JAMS, a nationally recognized arbitration authority,
|
|
|
pursuant to its code of procedures then in effect for consumer related disputes,
|
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but excluding any rules that permit joinder or class actions in arbitration (for
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more detail on procedure, see Section 22.6 below). You and Epson understand and
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agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the
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interpretation and enforcement of this Section 22, (b) this Agreement
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memorializes a transaction in interstate commerce, and (c) this Section 22 shall
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survive termination of this Agreement.
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22.3 Pre-Arbitration Steps and Notice. Before submitting a claim for
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arbitration, you and Epson agree to try, for sixty (60) days, to resolve any
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Dispute informally. If Epson and you do not reach an agreement to resolve the
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Dispute within the sixty (60) days, you or Epson may commence an arbitration.
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Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal
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Department, 3840 Kilroy Airport Way, Long Beach, CA 90806 (the “Epson Address”).
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The Dispute Notice to you will be sent to the most recent address Epson has in
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its records for you. For this reason, it is important to notify us if your
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address changes by emailing us at EAILegal@ea.epson.com or writing us at the
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Epson Address above. Notice of the Dispute shall include the sender’s name,
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address and contact information, the facts giving rise to the Dispute, and the
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relief requested (the “Dispute Notice”). Following receipt of the Dispute
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Notice, Epson and you agree to act in good faith to resolve the Dispute before
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commencing arbitration.
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22.4 Small Claims Court. Notwithstanding the foregoing, you may bring an
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individual action in the small claims court of your state or municipality if the
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action is within that court’s jurisdiction and is pending only in that court.
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22.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EPSON AGREE
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THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL
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CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE
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PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR
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CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE
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ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A
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REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION
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PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR
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CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL
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AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
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22.6 Arbitration Procedure. If you or Epson commences arbitration, the
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arbitration shall be governed by the rules of JAMS that are in effect when the
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arbitration is filed, excluding any rules that permit arbitration on a class or
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representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or
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by calling 1-800-352-5267, and under the rules set forth in this Agreement. All
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Disputes shall be resolved by a single neutral arbitrator, and both parties
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shall have a reasonable opportunity to participate in the selection of the
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arbitrator. The arbitrator is bound by the terms of this Agreement. The
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arbitrator, and not any federal, state or local court or agency, shall have
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exclusive authority to resolve all disputes arising out of or relating to the
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interpretation, applicability, enforceability or formation of this Agreement,
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including any claim that all or any part of this Agreement is void or voidable.
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Notwithstanding this broad delegation of authority to the arbitrator, a court
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may determine the limited question of whether a claim or cause of action is for
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an IP Claim, which is excluded from the definition of “Disputes” in Section 22.1
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above. The arbitrator shall be empowered to grant whatever relief would be
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available in a court under law or in equity. The arbitrator may award you the
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same damages as a court could, and may award declaratory or injunctive relief
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only in favor of the individual party seeking relief and only to the extent
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necessary to provide relief warranted by that party’s individual claim. In some
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instances, the costs of arbitration can exceed the costs of litigation and the
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right to discovery may be more limited in arbitration than in court. The
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arbitrator’s award is binding and may be entered as a judgment in any court of
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competent jurisdiction.
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You may choose to engage in arbitration hearings by telephone. Arbitration
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hearings not conducted by telephone shall take place in a location reasonably
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accessible from your primary residence, or in Orange County, California, at your
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option.
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a) Initiation of Arbitration Proceeding. If either you or Epson decides to
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arbitrate a Dispute, both parties agree to the following procedure:
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(i) Write a Demand for Arbitration. The demand must include a description of
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the Dispute and the amount of damages sought to be recovered. You can find a
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copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for
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Arbitration”).
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(ii) Send three copies of the Demand for Arbitration, plus the appropriate
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filing fee, to: JAMS, 500 North State College Blvd., Suite 600 Orange, CA 92868,
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U.S.A.
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(iii) Send one copy of the Demand for Arbitration to the other party (same
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address as the Dispute Notice), or as otherwise agreed by the parties.
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b) Hearing Format. During the arbitration, the amount of any settlement offer
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made shall not be disclosed to the arbitrator until after the arbitrator
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determines the amount, if any, to which you or Epson is entitled. The discovery
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or exchange of non-privileged information relevant to the Dispute may be allowed
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during the arbitration.
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c) Arbitration Fees. Epson shall pay, or (if applicable) reimburse you for,
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all JAMS filings and arbitrator fees for any arbitration commenced (by you or
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Epson) pursuant to provisions of this Agreement.
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d) Award in Your Favor. For Disputes in which you or Epson seeks $75,000 or
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less in damages exclusive of attorney’s fees and costs, if the arbitrator’s
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decision results in an award to you in an amount greater than Epson’s last
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written offer, if any, to settle the Dispute, Epson will: (i) pay you $1,000 or
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the amount of the award, whichever is greater; (ii) pay you twice the amount of
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your reasonable attorney’s fees, if any; and (iii) reimburse you for any
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expenses (including expert witness fees and costs) that your attorney reasonably
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accrues for investigating, preparing, and pursuing the Dispute in arbitration.
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Except as agreed upon by you and Epson in writing, the arbitrator shall
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determine the amount of fees, costs, and expenses to be paid by Epson pursuant
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to this Section 22.6d).
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e) Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for
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any arbitration commenced involving a Dispute under this Agreement. Your right
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to attorney’s fees and expenses under Section 22.6(d) above does not limit your
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rights to attorney’s fees and expenses under applicable law; notwithstanding the
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foregoing, the arbitrator may not award duplicative awards of attorney’s fees
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and expenses.
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22.7 Opt-out. You may elect to opt-out (exclude yourself) from the final,
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binding, individual arbitration procedure and waiver of class and representative
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proceedings specified in this Agreement by sending a written letter to the Epson
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Address within thirty (30) days of your assent to this Agreement (including
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without limitation the purchase, download, installation of the Software or other
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|
applicable use of Epson Hardware, products and services) that specifies (i) your
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name, (ii) your mailing address, and (iii) your request to be excluded from the
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|
final, binding individual arbitration procedure and waiver of class and
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|
representative proceedings specified in this Section 22. In the event that you
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opt-out consistent with the procedure set forth above, all other terms shall
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|
continue to apply, including the requirement to provide notice prior to
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litigation.
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|
|
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
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|
|
provisions (other than a change to Epson’s address) in this Agreement, Epson
|
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|
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 22.7, if you
|
|
|
timely elected to opt-out when you first assented to this Agreement).
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22.9 Severability. If any provision in this Section 22 is found to be
|
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|
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 or representative actions as provided in Section
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|
22.5. This means that if Section 22.5 is found to be unenforceable, the entire
|
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Section 22 (but only Section 22) shall be null and void.
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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
|
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UNENFORCEABLE, VOID OR INAPPLICABLE UNDER NEW JERSEY LAW, THEN ANY SUCH
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|
PROVISION SHALL NOT APPLY TO YOU BUT THE REST OF THE AGREEMENT SHALL REMAIN
|
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|
BINDING ON YOU AND EPSON. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT,
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|
NOTHING IN THIS AGREEMENT IS INTENDED TO, NOR SHALL IT BE DEEMED OR CONSTRUED
|
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|
TO, LIMIT ANY RIGHTS AVAILABLE TO YOU UNDER THE TRUTH-IN-CONSUMER CONTRACT,
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WARRANTY AND NOTICE ACT.
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Rev. December 2018
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