- By using the Service on any computer, mobile phone, tablet, or other device (collectively "Device") you signify that you have read, understood, and agree to be bound by these Terms, and consent to the collection, use, and sharing of your data and other activities as described in our Privacy Statement. In some instances, both these Terms and separate terms will apply to your use of the Service ("Additional Terms"). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless they expressly state otherwise. If you do not agree to these Terms, please do not use the Service.
IMPORTANT SAFETY PRECAUTIONS.
- Some parts of the Service may promote physical activity and the consumer’s use of personal fitness and electronic body monitoring. Any use of the Service is for informational purposes only and not intended to replace the relationship between you and your doctor or other medical provider. Not all exercises and activity levels are suitable for everyone. Epson is not a licensed medical care provider and has no expertise diagnosing, examining, treating medical conditions of any kind, or determining the effect of any specific exercise or exercise program may have on a medical condition. You should consult with a doctor before starting any fitness program, changing your diet, modifying your sleep habits, or if you have any questions about the impact of an exercise program on your health. Never disregard professional medical advice or delay seeking medical advice because of anything you read on the Service. Please consult with your doctor or other medical provider before following any training suggestions you may receive through the Service.
- You should understand that there is a possibility of physical injury and/or death when participating in any sports activities or exercise program. If you think you are in a medical emergency, call your doctor or emergency service provider immediately. Stop any physical activity which causes you discomfort or pain. If you have a medical condition that requires close medical supervision, only use the Service if closely monitored by your doctor. By using the Service, you represent that you have consulted with a doctor regarding your use of the Service and participation in the physical activities suggested.
- Epson is not responsible or liable for any injuries or damages you may sustain from your use of the Service. If you use features from the Service, you agree that you do so at your own risk.
IMPORTANT NOTICE FOR AMATEUR ATHLETES.
- You are responsible for ensuring that your use of the Service does not affect your eligibility as an amateur athlete. Please check with your amateur athletic association for rules that may apply. Epson is not responsible or liable for your use of the Service resulting in your ineligibility as an amateur athlete.
IMPORTANT NOTICE FOR "RUN CONNECT", "RUNSENSE VIEW" AND "EPSON VIEW" USERS.
- "Run Connect" "RUNSENSE View"and "Epson View" share the same database, and use the same data and information related to your account and accumulated data in such database. Thus, when you add, revise, delete or otherwise change data in your "Run Connect" or "RUNSENSE View" account, such change will also be reflected in your "Epson View" account, and vice versa.
- If you delete your "Run Connect" or "RUNSENSE View" account, Epson will also delete your "Epson View" account, and vice versa if you delete your "Epson View" account, you will also delete your "Run Connect" and "RUNSENSE View" accounts. If you delete your "Run Connect", "RUNSENSE View" or "Epson View" accounts, you should back up the data you accumulated in "Run Connect", "RUNSENSE View" and "Epson View". Epson is not responsible for backing up any data you choose to delete and is not liable for any losses due to deletion of your data.
1 Service Use.
- 1-1.Age Requirements for Use of Service. The Service and associated products are not toys and are therefore not suitable for individuals younger than 13 years of age. It is a violation of these Terms for anyone under 13 to register on the Service. You represent and warrant that you are 13 or older. Your account may be deleted without notice if you misrepresent your age. If you are at least 13 but under the age of majority, you should review these Terms with your parent or guardian to make sure that you and your parent or guardian understands and agrees to these Terms on your behalf.
- 1-2.Registration and Accuracy of Registration Data. You are required to register for an account to use the Service. You agree to provide accurate and current information about yourself when you register. By registering for and using the Service, you agree and consent to having Epson contact you by email about the Service and other offers from Epson.
- 1-3.Epson Global ID. In order to use the Service, you must create an Epson Global ID. Your Epson Global ID will be used for all M-Tracer products, PULSENSE products, and RUNSENSE products. Epson may also associate your Epson Global ID with other products and services. Please note that if you delete your Epson Global ID, Epson may not be able to re-instate your account for any product or service associated with your Epson Global ID and your data may be permanently deleted.
- 1-4.Safeguarding Epson Global ID and Password. You are responsible for maintaining the confidentiality of your Epson Global ID and password. Please keep your Epson Global ID and password secure and do not allow anyone else to use your Epson Global ID and password to access your account. Epson cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any fraudulent use or misuse of information you provide to the Service. You agree to notify the Epson Privacy Coordinator at firstname.lastname@example.org if you believe there has been unauthorized use or access to your account information. You represent that the information you provide about yourself when creating your Epson Global ID is accurate and complete and that you will update information in your account as necessary. Epson is not responsible for any loss that results from the unauthorized use of your Epson Global ID and password, whether or not such access is with or without your knowledge.
- 1-5.Authorized Registration. You represent that you are registering on the Service in order to use the Service for your personal use and its intended purpose. If you are registering or using the Service as an agent or on behalf of a company or other organization, you represent that you have authority to bind that company or organization to these Terms.
- 1-6.Termination of User Account. Epson reserves the right, in its sole discretion, to suspend or terminate your Epson Global ID or account, delete your user information and user content, and restrict your use of some or all of the Service for any or no reason, without notice and without liability to you or anyone else. Epson also reserves the right to block users from certain IP addresses or Device numbers and prevent access to the Service. You understand that user data and information that you have shared outside of the Service on third-party services is your responsibility to manage and may continue to appear even after your account is terminated and that Epson has no obligation to delete such content from third-party services. In addition, Epson may terminate accounts which are inactive for a continuous six month period or longer without further notice to the account holder. Data in inactive accounts will be deleted from the server and such data cannot be restored. It is not possible to reactive a deleted account, however you may start a new account by creating a new Epson Global ID and password.
2 Intellectual Property and Limited License.
- 2-1.Materials. All of the (i) contents, including text, images, product descriptions, illustrations, design, software files and audio and video materials and any and all copyrightable materials contained on the Service; (ii) trademarks, logos trade names, trade dress, service marks, and trade identities of various parties, including those of Epson, on the Service; and (ii) other forms of intellectual property on the Service (collectively, the "Materials") are provided by Epson subject to your compliance with these Terms. All right, title, and interest in and to the Service and the Materials are the property of Epson and its licensors or certain other third parties, and are protected by copyright, patent, trademark and/or other intellectual property laws.
- 2-2.Limited License. Epson hereby grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, play the Materials on your Device. You may not distribute, modify, reproduce or use any Materials, in whole or in part, without the prior written consent of Epson, except as stated herein, provided you keep intact all copyright and other proprietary notices. You also agree to abide by any applicable Software License Agreements.
- 2-3.Restrictions. You agree to comply with all local, state, federal, national, foreign, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Materials. You further agree that you will not: (i) use the Service or Materials for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Materials that is unlawful, harmful, offensive, obscene, violent, threatening, harassing, abusive, or otherwise objectionable to Epson; (iii) harvest any information from the Service; (iv) reverse engineer or modify the Service; (v) interfere with the proper operation of or any security measure used by the Service; (vi) infringe any intellectual property or other right of any third party; (vii) use the Materials in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
- 2-4.Trademark Information. M-Tracer, PULSENSE, and RUNSENSE are trademarks and EPSON, the EPSON logo, and the EPSON Exceed Your Vision logo are registered trademarks of Epson, registered in Japan, the U.S. and other countries (the "Trademarks"). Nothing contained on the Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks displayed on the Service without the written consent of Epson or such party that may own the Trademarks. The absence of a product or service name or logo attribution anywhere in the text of the Service does not constitute a waiver of any trademark or other intellectual property rights concerning that product or service name or logo. All other products and brand names are trademarks and/or registered trademarks of their respective companies. Epson disclaims any interest in those marks.
- 2-5.Software License. In the event you download any software for products associated with the Service, such as M-Tracer products, PULSENSE products, or RUNSENSE products, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") is licensed to you by Epson. Use of the Software is subject to the license terms in the Software License Agreement that accompanies the Software. Epson does not transfer title to the Software to you. You may own the medium on which the Software is recorded, but Epson retains full and complete title to the Software, and all intellectual property rights therein. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
- 2-6.Reservation of All Rights. All rights not expressly granted to you are reserved by Epson and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Materials or the Service for any purpose is prohibited.
3 Copyright Infringement and DMCA Policy.
Epson respects the intellectual property rights of others, and expects those who use the Service to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement in the U.S.A., please notify Epson of your claim of infringement by sending the following written information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512(c)(2), named below:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We will respond to notices of claimed copyright infringement in accordance with the DMCA. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers. Our designated Copyright Agent to receive DMCA Notices is:
Epson America, Inc.
3840 Kilroy Airport Way
Long Beach CA 90806
4 Feedback and Information; Electronic Communications.
If you have any questions, please send an e-mail to us at WearablesFeedback@ea.epson.com. Any feedback you provide at the Service, by email or otherwise, including data, questions, comments, suggestions or the like shall be deemed to be non-confidential and non-proprietary. Epson shall be free to use such information for any purpose on an unrestricted basis. Subject to following the user settings you select for use of the Service, you grant to Epson a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, with the right to sublicense, reproduce, distribute, transmit, publicly display, digitally modify, create derivative works of, and otherwise use and commercially exploit any feedback, suggestions, comments or other information you submit to the Service or via email in any media now existing or hereafter developed, including on websites and in audio and printed media formats and for purposes of product and service enhancements of the Service. You agree that your submissions will not: (i) promote any political or commercial purpose; (ii) defame, abuse, harass, stalk, or threaten others; (iii) use racially or ethnically offensive language; (iv) discuss or incite illegal activity; or (v) infringe any intellectual property or other right of any third party.
You consent to allow Epson to communicate with you electronically about the Service. You also agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
5 Third-Party Services.
- 5-1.The Service is not a guaranteed part of any third-party service. Any mention of third party products, companies, applications and services on the Service is for informational purposes only and constitutes neither an endorsement nor a recommendation. Epson makes no representations regarding the quality, safety or suitability of any products by third-party companies. All third-party products must be ordered directly from the vendor and all licenses and warranties, if any, are made between you and the vendor. Links to third-party services including applications are provided solely as a convenience to you. Epson has no control over the contents of any other service or application and makes no representation whatsoever regarding the content of any other service or application. When you use these links or third party applications, you will leave the Service. Epson does not endorse or have any responsibility for the content, information, products on the service or for materials and information contained in any third-party service or application.
6 Service Features.
- 6-1.Mobile Services and Updates. The Service may use features only available on certain Devices. Your carrier’s normal data rates and charges apply when you communicate to and from the Service and such charges are your responsibility. Use of the Service requires Internet access and software that may require periodic updates for your Device. Software may be updated automatically and installed by Epson products without prior notice to you, and Epson reserves the right to determine the timing and content of Software updates. You also agree to allow Epson to send such software updates to you and you agree to update your Device and any products you use with the Service.
- 6-2.E-mail Messages. You can opt out of receiving promotional e-mails from us by following the instructions as provided in e-mails to click on the unsubscribe link or by sending an e-mail to us here with the word UNSUBSCRIBE in the subject field of the e-mail. This will not affect subsequent subscriptions and if your opt out is limited to certain types of e-mails the opt out will be so limited. We reserve the right to send you e-mails relating to your account or use of our Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt out from receiving our promotional e-mail.
- 6-3.Location-Based Features. If you have location-based features on your wireless Device, you acknowledge that your Device location will be tracked and shared consistent with the Privacy Statement. You can terminate location tracking by us by adjusting the permissions in your mobile device or uninstalling our mobile app. Location-based features are used at your own risk and location data may not be accurate.
7 DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
- 7-1.Disputes. The terms of this Section 7.1 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 the Service, Software, Epson branded product or hardware, these Terms, 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) trade secret misappropriation, (b) patent infringement, (c) copyright infringement or misuse, or (d) trademark infringement or dilution (an "IP Claim"). You and Epson also agree, notwithstanding Section 7.6 below, that a court, not the arbitrator, may decide if a claim or cause of action is for an IP Claim.
- 7-2.Binding Arbitration. You and Epson agree that all Disputes shall be resolved by binding arbitration according to these Terms. 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 these Terms, 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 (for more detail on procedure, see Section 7.6 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 7, (b) these Terms memorialize a transaction in interstate commerce, and (c) this Section 7 shall survive termination of these Terms.
- 7-3.Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, you and Epson each agree to try to resolve any Dispute informally for sixty (60) days. If Epson and you do not reach an agreement to resolve the Dispute within the sixty (60) days after receipt of the Dispute Notice (defined below), you or Epson may commence the arbitration proceeding. Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal Department, 3840 Kilroy Airport Way, Long Beach, CA 90806 (the "Espon Address"). The Dispute Notice to you will be sent by certified mail to the most recent address Epson has in its records for you. Notice of the Dispute shall include a written statement with 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.
- 7-4.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.
- 7-5.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 REPRESEATNTATIVE 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.
- 7-6.Arbitration Procedure. If you or Epson commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time 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 these Terms. If there is a conflict between the JAMS Rules and the rules set forth in these Terms, the rules set forth here shall govern. 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 these Terms. 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 these Terms, including any claim that all or any part of these Terms 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 7.1 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 sitting in proper jurisdiction 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 could 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 filing, administration, and arbitrator fees for any arbitration commenced (by you or Epson) pursuant to provisions of these Terms.
- (d)Award in Your Favor. For Disputes in which you or Epson seeks $75,000 (USD) 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 (USD) 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 7.6(d).
- (e)Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under these Terms. Your right to attorney’s fees and expenses under Section 7.6(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.
- 7-7.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 these Terms by sending a written letter to the Epson Address within thirty (30) days of your assent to these Terms (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 7. 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.
- 7-8.Amendments to Section 7. Notwithstanding any provision in these Terms 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 these Terms, 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 7 (or resolve disputes as provided for in Section 7.7., if you timely elected to opt-out when you first assented to this Agreement).
- 7-9.Severability. If any provision in this Section 7 is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 7.5; if Section 7.5 is found to be unenforceable, the entire Section 7 (but only Section 7) shall be null and void.
8 Disclaimer of Representations and Warranties.
THE SERVICE AND ITS MATERIALS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EPSON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Epson does not warrant the accuracy and completeness of the Materials or services provided at the Service. Epson also does not warrant that any functions of the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service or the server that makes it available is free from viruses or other harmful components. Some jurisdictions may not allow the exclusion of an implied warranty so some of the above exclusions may not apply to you in all circumstances.
9 Limitation of Liability.
IN NO EVENT WILL EPSON ASSUME ANY RESPONSIBILITY FOR ANY DAMAGES THAT RESULT FROM YOUR ACCESS TO, USE OF, OR INABILITY TO USE, THE SERVICE, OR FROM YOUR DOWNLOADING OF ANY MATERIALS OR SOFTWARE FROM THE SERVICE, EVEN IF EPSON OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR USE OF THE SERVICE IS AT YOUR RISK. EPSON SHALL NOT BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, ARISING OUT OR YOUR ACCESS TO, OR USE OF, THE SERVICE. Some jurisdictions may not allow a limitation or exclusion on damages, so the above may not apply in all circumstances. In no event shall Epson’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including but not limited to negligence) or otherwise) exceed the greater of (i) the amount paid by you for the Service in the twelve (12) month period preceding the event giving rise to your claim; or (ii) fifty United States dollars ($50.00).
10 Waiver of Injunctive or Other Equitable Relief.
YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE SERVICE OR ANY MATERIALS OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY EPSON OR A LICENSOR OF EPSON.
11 User Indemnification of Epson.
On Epson’s request, you agree to defend, indemnity, and hold Epson and its partners, licensors, officers, directors, employees, and agent harmless from any and all losses, liabilities, damages and costs, including reasonable legal and accounting fees, arising from any claims, actions, or demands related to or alleged to relate to your use of the Service and your violation of these Terms. Epson reserves the right to control its own defense of any third-party claim that is subject to this indemnity and the parties agree to cooperate with each other in the conduct of such defense. You will not in any event settle any claim without the prior written consent of Epson.
12 Update to Terms.
Epson may from time to time revise these Terms by updating this posting. Please visit this page periodically to review the current Terms because they are binding on you. We may also update the Terms by placing a special notice on the Service or by email to you. Your continued use of the Service will mean you accept any changes.
13 Governing Law and General Provisions.
- 13-1.Except for Section 7, these Terms, and any Additional Terms, shall be governed and construed under the laws in the State of California without regard to its conflicts of law rules. In the event of a Dispute in which the provisions in Section 7 are inapplicable, severed from the remainder of these Terms by a court of competent jurisdiction, or you opt-out pursuant to the provisions of Section 7, you and Epson both consent to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles, California. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever banned. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- 13-2.Entire Agreement. These Terms are the entire agreement between the parties related to the Service and supersedes any purchase order, communication, advertisement, or representation concerning the Service. Subject to Section 7.8 and 7.9, if any provision herein, or in the Additional Terms, 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. These Terms may only be modified in writing signed by an authorized representative of Epson. Without prejudice to any other rights Epson has, your license rights under Section 2 above and your warranty rights under Section 8 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.
- 13-3.Consent or Approval. No Epson consent or approval may be deemed to have been granted by Epson without being in writing and signed by an officer of Epson.
- 13-4.Drafting Interpretation. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
- 13-5.Assignment. Epson may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, assigns and legal representatives. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Epson.
- 13-6.No Waiver. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Epson in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- 13-7.Jurisdictional Issues. The Service is controlled and operated by Epson from its offices in Nagano Prefecture, Japan. Epson makes no representation that Materials on the Service are appropriate or available for use in locations other than where the products associated with the Service are first sold. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, including without limitations export laws and regulations. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any country on any export prohibition list.
14 Business Transfer or Cessation of Service.
Epson reserves the right to change, suspend or terminate the Service, or any feature or component thereof, and discontinue support of the associated products at any time and without notice. In such an event, Epson is not liable to you or any third party for any change, suspension or termination of the Service or any feature or component. Epson also reserves the right to disclose and/or transfer all information collected, whether through the Service or otherwise, to third parties in the event of a proposed or actual purchase, sale (including a liquidation, realization, foreclosure or repossession), lease, merger, amalgamation or any other type of acquisition, disposal, transfer, conveyance or financing of all or any portion of Epson’s business, including your account information and data, consistent with the Privacy Statement.
15 Investigations; Cooperation with Law Enforcement.
Epson reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Epson may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
16 California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
17 Terms Applicable for Apple iOS.
If you are using the Service through an Apple Device, the following terms apply:
- (i)To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Epson and, that Apple, Inc. ("Apple") is not a party to these Terms other than as third-party beneficiary as contemplated below.
- (ii)The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
- (iii)You acknowledge that Epson, and not Apple, is responsible for providing the Service and Materials thereof.
- (iv)You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
- (v)To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
- (vi)Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Epson, Epson, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (a) product liability claims; (b) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- (vii)Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- (viii)You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- (ix)When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.