EPSON END USER SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS PRODUCT. IF YOU ARE LOCATED IN THE UNITED STATES, SECTION 14 OF THIS DOCUMENT APPLIES TO YOU. SECTION 14 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 14.7 FOR THOSE WHO WISH TO BE EXCLUDED FROM THE ARBITRATION AND CLASS WAIVER.
1. Grant of License. Epson grants you a limited, nonexclusive license to install and use the Software on hard disks or other computer storage devices, provided that the Software is used only in a single location (e.g., a home or office or place of business) and only in connection with Epson Hardware owned by you. You may make backup copies of the Software, as necessary, provided the backup is only used to support your use of the Epson Hardware.
2. Upgrades and Updates. If you acquire an upgrade, updated version, modified version, or additions to or for the Software from Epson, the upgrade, updated version, modified version, or addition, shall be included in the defined term Software and governed by this Agreement. You acknowledge that Epson has no obligation to provide you with any Updates (as defined below in this Section 2) to the Software. Epson may, however, from time to time, issue updated versions of the Software and the Software may automatically connect to Epson or third-party servers via the Internet to check for available updates to the Software, such as bug fixes, patches, upgrades, additional or enhanced functions, plug-ins and new versions (collectively, “Updates”) and may either (a) automatically electronically update the version of the Software that you are using on your personal device or (b) give you the option of manually downloading applicable Updates. If you do not wish to allow Epson to check for available updates to the Software, you may disable this feature by uninstalling EPSON Software Updater. By installing the Software and not disabling any automated check for Updates, if applicable, you hereby agree and consent to automatically request and receive Updates from Epson or third-party servers, and that the terms and conditions of this Agreement shall apply to all of these Updates.
3. Other Rights and Limitations. You agree not to modify, adapt or translate the Software and 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 or lend the Software to third parties. You may, however, transfer all of your rights to use the Software to another person or legal entity, provided that the recipient also agrees to the terms of this Agreement and you transfer the Software, including all copies, updates and prior versions, and the Epson Hardware, to such person or entity. The Software is licensed as a single unit, and its component programs may not be separated for some other use. 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 outside the single location referred to in Section 1 above.
4. Ownership. Title, ownership rights, and intellectual property rights in and to the Software shall remain with Epson or its 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 its suppliers reserve all rights not granted.
5. Multiple Versions of Software. You may receive or obtain the Software in more than one version (e.g. for different operating environments; two or more language translation versions; downloaded from an Epson server or on a CD-ROM), however, regardless of the type or number of copies you receive, you still may use only the media or version appropriate for the license granted in Section 1 above.
6. Disclaimer of Warranty and Remedy. If you obtained the Software by media from EPSON or a dealer, EPSON warrants that the media on which the Software is recorded will be free from defects in workmanship and materials under normal use for a period of 90 days from the date of delivery to you. If the media is returned to EPSON or the dealer from which the media was obtained within 90 days of the date of delivery to you, and if EPSON determines the media to be defective and provided the media was not subject to misuse, abuse, misapplication or use in defective equipment, EPSON will replace the media, upon your return to EPSON of the Software, including all copies of any portions thereof. You acknowledge and agree that the use of the Software is at your sole risk. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND. EPSON AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. Epson does not warrant that the operation of the Software will be uninterrupted, error free, free from viruses or other harmful components or vulnerabilities, or that the functions of the Software will meet your needs or requirements. Epson’s sole and exclusive liability and your exclusive remedy for breach of warranty shall be limited to either, at Epson’s option, the replacement of the media for the Software or to refund your money upon returning the Software and Epson Hardware. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. If the above remedy fails for any reason, Epson’s entire liability for a breach of warranty shall be limited to a refund of the price paid for the Epson Hardware. Epson is not liable for performance delays or for nonperformance due to causes beyond its reasonable control. This Limited Warranty is void if failure of the Software resulted from accident, abuse, or misapplication. THE STATED LIMITED WARRANTIES AND REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS. EPSON DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. Limitation of Liability. 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.
11. Ink Purchases. For certain Epson printer products sold in North America, the Software may also display an option to buy ink from Epson. If you click on the buy button, the Software will cause your computer to display Epson Hardware cartridge types and ink levels and provide other information about your cartridges, such as the colors, available cartridge sizes, and prices for replacement ink cartridges, which you may purchase online from Epson.
13. 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.
14. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
14.1 Disputes. The terms of this Section 14 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. “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 14.6, that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
14.2 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, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see Section 14.6 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 14, (b) this Agreement memorializes a transaction in interstate commerce, and (c) this Section 14 shall survive termination of this Agreement.
14.3 Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, 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. Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal Department, 3840 Kilroy Airport Way, Long Beach, CA 90806 (the “Epson Address”). The Dispute Notice 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 Epson Address above. 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 (the “Dispute Notice”). Following receipt of the Dispute Notice, Epson and you agree to act in good faith to resolve the Dispute before commencing arbitration.
14.4 Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
14.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EPSON AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
14.6 Arbitration Procedure. If you or Epson commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative 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, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. 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, a court may determine 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 14.1 above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction.
You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Orange County, California, at your option.
a) Initiation of Arbitration Proceeding. If either you or Epson decides to arbitrate a Dispute, 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. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
(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 (same address as the Dispute Notice), or as otherwise agreed by the parties.
b) Hearing Format. 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. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
c) Arbitration Fees. Epson shall pay, or (if applicable) reimburse you for, all JAMS filings and arbitrator fees for any arbitration commenced (by you or Epson) pursuant to provisions of this Agreement.
d) Award in Your Favor. For Disputes in which you or Epson seeks $75,000 or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you in an amount greater than Epson’s last written offer, if any, to settle the Dispute, Epson will: (i) pay you $1,000 or the amount of the award, whichever is greater; (ii) pay you twice the amount of your reasonable attorney’s fees, if any; and (iii) reimburse you for any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing the Dispute in arbitration. Except as agreed upon by you and Epson in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by Epson pursuant to this Section 14.6d).
e) Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under this Agreement. Your right to attorney’s fees and expenses under Section 14.6(d) above does not limit your rights to attorney’s fees and expenses under applicable law; notwithstanding the foregoing, the arbitrator may not award duplicative awards of attorney’s fees and expenses.
14.7 Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the Epson Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of Epson Hardware, products and services) 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 and representative proceedings specified in this Section 14. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to litigation.
14.8 Amendments to Section 14. 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 14 (or resolve disputes as provided for in Section 14.7, if you timely elected to opt-out when you first assented to this Agreement).
14.9 Severability. If any provision in this Section 14 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 or representative actions as provided in Section 14.5. This means that if Section 14.5 is found to be unenforceable, the entire Section 14 (but only Section 14) shall be null and void.
15. Jurisdiction. Except for Section 14, which is governed by the Federal Arbitration Act, in the event of a Dispute in which the provisions in Section 14 are inapplicable, severed from the remainder of this Agreement, or you opt-out pursuant to the provisions of Section 14.7, you and Epson both consent to the jurisdiction of your state of residence. Such Dispute must be filed no later than one year after the date the Software is first acquired. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16. For New Jersey Residents. Notwithstanding any terms set forth in this Agreement, if any of the provisions set forth in Sections 6, 7, or 16 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.
17. Entire Agreement. 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.
18. 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.
19. Severability; Modifications. Subject to Section 14.8 and 14.9 if any provision herein is found void or unenforceable by a court of competent jurisdiction, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing signed by an authorized representative of Epson.
20. Termination. Without prejudice to any other rights Epson has, your license rights under Section 1 above and your warranty rights under Section 6 above, shall automatically terminate upon failure by you to comply with its terms. Upon termination of such rights, you agree that the Software, and all copies thereof, will be immediately destroyed.
21. 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 is a registered trademark of Seiko Epson Corporation.