1 Please read out COPYING.EPSON and Privacy Statement
2 (http://download.ebz.epson.net/ps/linux/).
4 EPSON END USER SOFTWARE LICENSE AGREEMENT
6 NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING
7 THIS PRODUCT. IF YOU ARE LOCATED IN THE UNITED STATES, SECTIONS 19-23 OF THIS
8 DOCUMENT APPLY TO YOU. SECTION 22 CONTAINS A BINDING ARBITRATION PROVISION THAT
9 LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT BEFORE A JUDGE OR JURY, AND WAIVES
10 YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS FOR CERTAIN
11 DISPUTES. AN “OPT-OUT” IS AVAILABLE UNDER SECTION 22.7 FOR THOSE WHO WISH TO BE
12 EXCLUDED FROM THE ARBITRATION AND CLASS WAIVER.
14 This is a legal agreement (“Agreement”) between you (an individual or entity,
15 referred to hereinafter as “you”) and Seiko Epson Corporation (including its
16 affiliates, “Epson”) for the enclosed software programs, including any related
17 documentation, firmware, or updates (collectively referred to hereinafter as the
18 “Software”). The Software is provided by Epson and its suppliers for use only
19 with the corresponding Epson brand computer peripheral product (the “Epson
20 Hardware”). BEFORE INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU NEED
21 TO REVIEW AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THE
22 EPSON PRIVACY POLICY stated in Section 17. If you agree, click on the Agree
23 (“ACCEPT”, “OK” or any similar representation of agreement) button below. If
24 you do not agree with the terms and conditions of this Agreement, click on the
25 Disagree (“EXIT”, “Cancel” or any similar representation of disagreement) button
26 and return the Software, along with the packaging and related materials, to
27 Epson or the place of purchase for a full refund.
29 1. Grant of License. Epson grants you a limited, nonexclusive license to (i)
30 download, install and use the Software for your personal and internal business
31 use on hard disks or other computer storage devices, or in the case of a
32 software application (also referred to as “Software”), on the smartphone,
33 tablet, or other mobile device (collectively, “Device”), provided that the
34 Software is used (i) only in a single location (e.g., a home or office or place
35 of business), or in the case of a mobile device, on a Device owned or otherwise
36 controlled by you, and (ii) only in connection with Epson Hardware owned by you.
37 You may allow other users of the Epson Hardware connected to your network to
38 use the Software, provided that you shall ensure that such users use the
39 Software only in accordance with this Agreement. You agree to be responsible
40 for and indemnify Epson for liabilities incurred as a consequence of use by such
41 users. You may make backup copies of the Software, as necessary, provided the
42 backup is only used to support your use of the Epson Hardware.
44 2. Upgrades and Updates. If you acquire an upgrade, updated version, modified
45 version, or additions to or for the Software from Epson, the upgrade, updated
46 version, modified version, or addition, shall be included in the defined term
47 Software and governed by this Agreement. You acknowledge that Epson has no
48 obligation to provide you with any Updates (as defined below in this Section 2)
49 to the Software. Epson may, however, from time to time, issue updated versions
50 of the Software and the Software may automatically connect to Epson or
51 third-party servers via the Internet to check for available updates to the
52 Software, such as bug fixes, patches, upgrades, additional or enhanced
53 functions, plug-ins and new versions (collectively, “Updates”) and may either
54 (a) automatically electronically update the version of the Software that you are
55 using on your personal device or (b) give you the option of manually downloading
56 applicable Updates. If you installed the EPSON Software Updater and do not wish
57 to allow Epson to check for available updates to the Software, you may disable
58 this feature by uninstalling EPSON Software Updater. By installing the Software
59 and not disabling any automated check for Updates, if applicable, you hereby
60 agree and consent to automatically request and receive Updates from Epson or
61 third-party servers, and that the terms and conditions of this Agreement shall
62 apply to all of these Updates.
64 3. Other Rights and Limitations. You agree not to modify, adapt or translate
65 the Software and further agree not to attempt to reverse engineer, decompile,
66 disassemble or otherwise attempt to discover the source code of the Software.
67 You may not rent, lease, distribute, lend the Software to third parties or
68 incorporate the Software into a revenue generating product or service. You may,
69 however, transfer all of your rights to use the Software to another person or
70 legal entity, provided that the recipient also agrees to the terms of this
71 Agreement and you transfer the Software, including all copies, updates and prior
72 versions, and the Epson Hardware, to such person or entity. The Software is
73 licensed as a single unit, and its component programs may not be separated for
74 some other use. Further, you agree not to place the Software onto or into a
75 shared environment accessible via a public network such as the Internet or
76 otherwise accessible by others outside the single location referred to in
79 4. Ownership. Title, ownership rights, and intellectual property rights in and
80 to the Software shall remain with Epson or its licensors and suppliers. The
81 Software is protected by United States Copyright Law, copyright laws of Japan
82 and international copyright treaties, as well as other intellectual property
83 laws and treaties. There is no transfer to you of any title to or ownership of
84 the Software and this License shall not be construed as a sale of any rights in
85 the Software. You agree not to remove or alter any copyright, trademark,
86 registered mark and other proprietary notices on any copies of the Software.
87 Epson and/or its licensors and suppliers reserve all rights not granted. The
88 Software may also contain images, illustrations, designs and photos
89 (“Materials”), and the copyright of such material belongs to Epson and/or its
90 licensors and suppliers, protected by national and/or international intellectual
91 property laws, conventions and treaties. For clarity, (1) the Materials shall
92 be used for non-commercial purposes only, (2) the Materials shall be edited,
93 adjusted and copied only in the manner designated by the Software, and (3) you
94 may use the Materials only for lawful personal use, home use or as otherwise
97 5. Open Source and Other Third-Party Components. Notwithstanding the foregoing
98 license grant, you acknowledge that certain components of the Software may be
99 covered by third-party licenses, including so-called “open source” software
100 licenses, which means any software licenses approved as open source licenses by
101 the Open Source Initiative or any substantially similar licenses, including
102 without limitation any license that, as a condition of distribution of the
103 software licensed under such license, requires that the distributor make the
104 software available in source code format (such third-party components,
105 “Third-Party Components”). A list of Third-Party Components, and associated
106 license terms (as required), for particular versions of the Software is
107 indicated at the end of this Agreement, relevant user manual/CD, or the license
108 information displayed on your Device/in Software. To the extent required by the
109 licenses covering Third-Party Components, the terms of such licenses will apply
110 in lieu of the terms of this Agreement. To the extent the terms of the licenses
111 applicable to Third-Party Components prohibit any of the restrictions in this
112 Agreement with respect to such Third-Party Components, such restrictions will
113 not apply to such Third-Party Component.
115 6. Multiple Versions of Software. You may receive or obtain the Software in
116 more than one version (e.g. for different operating environments; two or more
117 language translation versions; downloaded from an Epson server or on a CD-ROM),
118 however, regardless of the type or number of copies you receive, you still may
119 use only the media or version appropriate for the license granted in Section 1
122 7. Disclaimer of Warranty and Remedy. If you obtained the Software by media
123 from Epson or a dealer, Epson warrants that the media on which the Software is
124 recorded will be free from defects in workmanship and materials under normal use
125 for a period of 90 days from the date of delivery to you. If the media is
126 returned to Epson or the dealer from which the media was obtained within 90 days
127 of the date of delivery to you, and if Epson determines the media to be
128 defective and provided the media was not subject to misuse, abuse,
129 misapplication or use in defective equipment, Epson will replace the media, upon
130 your return to Epson of the Software, including all copies of any portions
131 thereof. You acknowledge and agree that the use of the Software is at your sole
132 risk. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND.
133 EPSON AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU
134 MAY OBTAIN BY USING THE SOFTWARE. Epson does not warrant that the operation of
135 the Software will be uninterrupted, error free, free from viruses or other
136 harmful components or vulnerabilities, or that the functions of the Software
137 will meet your needs or requirements. Epson’s sole and exclusive liability and
138 your exclusive remedy for breach of warranty shall be limited to either, at
139 Epson’s option, the replacement of the media for the Software or to refund your
140 money upon returning the Software and Epson Hardware. Any replacement Software
141 will be warranted for the remainder of the original warranty period or thirty
142 (30) days, whichever is longer. If the above remedy fails for any reason,
143 Epson’s entire liability for a breach of warranty shall be limited to a refund
144 of the price paid for the Epson Hardware. Epson is not liable for performance
145 delays or for nonperformance due to causes beyond its reasonable control. This
146 Limited Warranty is void if failure of the Software resulted from accident,
147 abuse, or misapplication. THE STATED LIMITED WARRANTIES AND REMEDY ARE
148 EXCLUSIVE AND IN LIEU OF ALL OTHERS. EPSON DISCLAIMS ALL OTHER WARRANTIES,
149 EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF
150 NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SOME
151 STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF
152 IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY NOT APPLY TO
155 8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
156 IN NO EVENT WILL EPSON OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER,
157 WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER
158 ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF
159 WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES
160 FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
161 INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO
162 USE THE SOFTWARE, OR ARISING OUT OF THIS AGREEMENT, EVEN IF EPSON OR ITS
163 REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES
164 DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TRANSACTIONS, AND
165 IN SUCH STATES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
167 9. U.S. Government Acquisition of the Software. This Section applies to all
168 acquisitions of the Software by or for the U.S. Government (“Government”), or by
169 any prime contractor or subcontractor (at any tier) under any contract, grant,
170 cooperative agreement, “other transaction” (“OT”), or other activity with the
171 Government. By accepting delivery of the Software, the Government, any prime
172 contractor, and any subcontractor agree that the Software qualifies as
173 “commercial” computer software within the meaning of FAR Part 12, paragraph (b)
174 of FAR Subpart 27.405, or DFARS Subpart 227.7202, as applicable, and that no
175 other regulation, or FAR or DFARS data rights clause, applies to the delivery of
176 this Software to the Government. Accordingly, the terms and conditions of this
177 Agreement govern the Government’s (and the prime contractor and subcontractor’s)
178 use and disclosure of the Software, and supersede any conflicting terms and
179 conditions of the contract, grant, cooperative agreement, OT, or other activity
180 pursuant to which the Software is delivered to the Government. If this Software
181 fails to meet the Government’s needs, if this Agreement is inconsistent in any
182 respect with Federal law, or if the above cited FAR and DFARS provisions do not
183 govern, the Government agrees to return the Software, unused, to Epson.
185 10. Export Restriction. You agree that the Software will not be shipped,
186 transferred or exported into any country or used in any manner prohibited by the
187 United States Export Administration Act or any other export laws, restrictions
190 11. Entire Agreement. This Agreement is the entire agreement between the
191 parties related to the Software and supersedes any purchase order,
192 communication, advertisement, or representation concerning the Software.
194 12. Binding Agreement; Assignees. This Agreement shall be binding upon, and
195 inure to the benefit of, the parties hereto and their respective successors,
196 assigns and legal representatives.
198 13. Severability; Modifications. If any provision herein is found void or
199 unenforceable by a court of competent jurisdiction (subject to Section 22.8 and
200 22.9 if you are a located in the U.S.), it will not affect the validity of the
201 balance of the Agreement, which shall remain valid and enforceable according to
202 its terms. This Agreement may only be modified in writing signed by an
203 authorized representative of Epson.
205 14. Indemnification. You agree that you will indemnify and hold harmless, and
206 upon Epson’s request, defend Epson and its directors, officers, shareholders,
207 employees and agents from and against any and all losses, liabilities, damages,
208 costs, expenses (including reasonable attorneys’ fees), actions, suits, and
209 claims arising from (i) any breach of any of your obligations in this Agreement
210 or (ii) any use of the Software or the Epson Hardware. If Epson asks you to
211 defend any such action, suit or claim, Epson will have the right, at its own
212 expense, to participate in the defense thereof with counsel of its choice. You
213 will not settle any third-party claims for which Epson is entitled to
214 indemnification without the prior written approval of Epson.
216 15. Termination. Without prejudice to any other rights Epson has, your license
217 rights under Section 1 above and your warranty rights under Section 7 above,
218 shall automatically terminate upon failure by you to comply with this Agreement.
219 Upon termination of such rights, you agree that the Software, and all copies
220 thereof, will be immediately destroyed.
222 16. Capacity and Authority to Contract. You represent that you are of the legal
223 age of majority in your state or jurisdiction of residence and have all
224 necessary authority to enter into this Agreement, including, if applicable, due
225 authorization by your employer to enter into this Agreement.
227 17. Privacy, Information Processing. The Software may have the ability to
228 connect over the Internet to transmit data to and from your Device. For
229 example, if you install the Software, the Software may cause your Device to send
230 information about your Epson Hardware such as model and serial number, country
231 identifier, language code, operating system information, and Epson Hardware
232 usage information to an Epson Internet site which may return promotional or
233 service information to your Device for display. Any processing of information
234 provided through the Software, shall be according to applicable data protection
235 laws and the Epson Privacy Policy located at
236 https://global.epson.com/privacy/area_select_confirm_eula.html. To the extent
237 permitted by applicable laws, by agreeing to the terms of this Agreement and by
238 installing the Software, you consent to the processing and storage of your
239 information in and/or outside your country of residence. If there is a specific
240 privacy policy incorporated into the Software and/or displayed when you use the
241 Software (for example, in the case of certain software application software),
242 such specific privacy policy shall prevail over the Epson Privacy Policy stated
245 18. Third Party Websites. You may, through hypertext or other computer links
246 from the Software, gain access to websites and use certain services that are not
247 under the control of or operated by Epson, but rather are controlled by third
248 parties. You acknowledge and agree that Epson is not responsible for such third
249 party sites or services, including their accuracy, completeness, timeliness,
250 validity, copyright compliance, legality, decency, quality, or any other aspect
251 thereof. These third party websites/services are subject to different terms and
252 conditions and when you access and use third party websites/services, you will
253 be legally bound by the terms and conditions of those websites/services. If
254 there is a conflict between this Agreement and terms and conditions of third
255 party websites/services, the third party websites’/services’ terms and
256 conditions will govern with respect to your access and use of those
257 websites/services. Although Epson may provide a link to a third party
258 website/service from the Software, such a link is not an authorization,
259 endorsement, sponsorship or affiliation by Epson with respect to such
260 website/services, its content, its owners or its providers. Epson provides such
261 links for your reference and convenience only. Accordingly, Epson makes no
262 representations whatsoever concerning such websites/services and does not
263 provide any support related to such third party sites or services. Epson has
264 not tested any information, products or software found on such websites/services
265 and therefore cannot make any representations whatsoever with respect thereto.
266 You agree that Epson is not responsible for the content or operation of such
267 websites/services, and it is up to you to take precautions to ensure that
268 whatever you select is free of items such as viruses, worms, Trojan horses and
269 other items of a destructive nature. You are solely responsible for determining
270 the extent to which you may use any content at any other websites/services to
271 which you link from this Software.
273 (IF YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 19 - 23 APPLY
276 19. Ink Purchases. For certain Epson printer products sold in North America,
277 the Software may also display an option to buy ink from Epson. If you click on
278 the buy button, the Software will cause your Device to display Epson Hardware
279 cartridge types and ink levels and provide other information about your
280 cartridges, such as the colors, available cartridge sizes, and prices for
281 replacement ink cartridges, which you may purchase online from Epson.
283 20. Downloadable Updates. You may also be able to download from an Epson
284 Internet site updates or upgrades to the Software if such updates or upgrades
285 are made available. If you agree to install the Software, any transmissions to
286 or from the Internet, and data collection and use, will be in accordance with
287 Epson’s then-current Privacy Policy, and by installing the Software you agree
288 that such then-current Privacy Policy shall govern such activities.
290 21. Epson Accounts and Promotional Messages. In addition, if you install the
291 Software and register your Epson Hardware with Epson, and/or you create an
292 account at the Epson Store, and provided your consent to such use, you agree
293 that Epson may merge the data collected in connection with installation of the
294 Software, registration of your Epson Hardware and/or creation of your Epson
295 Store account, consisting of personal information and non-personally
296 identifiable information, and use such merged data to send you Epson promotional
297 or service information. If you do not wish to send information about your Epson
298 Hardware or receive promotional or service information, you will be able to
299 disable these features on a Windows system through the Monitoring Preferences
300 section in the driver. On a Mac operating system, you can disable these
301 features by uninstalling the Epson Customer Research Participation and Low Ink
304 22. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND
307 22.1 Disputes. The terms of this Section 22 shall apply to all Disputes
308 between you and Epson. The term “Dispute” is meant to have the broadest meaning
309 permissible under law and includes any dispute, claim, controversy or action
310 between you and Epson arising out of or relating to this Agreement, the
311 Software, Epson Hardware, or other transaction involving you and Epson, whether
312 in contract, warranty, misrepresentation, fraud, tort, intentional tort,
313 statute, regulation, ordinance, or any other legal or equitable basis.
314 “DISPUTE” DOES NOT INCLUDE IP CLAIMS, or more specifically, a claim or cause of
315 action for (a) trademark infringement or dilution, (b) patent infringement, (c)
316 copyright infringement or misuse, or (d) trade secret misappropriation (an “IP
317 Claim”). You and Epson also agree, notwithstanding Section 22.6, that a court,
318 not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
320 22.2 Binding Arbitration. You and Epson agree that all Disputes shall be
321 resolved by binding arbitration according to this Agreement. ARBITRATION MEANS
322 THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR
323 GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this Agreement, binding arbitration
324 shall be administered by JAMS, a nationally recognized arbitration authority,
325 pursuant to its code of procedures then in effect for consumer related disputes,
326 but excluding any rules that permit joinder or class actions in arbitration (for
327 more detail on procedure, see Section 22.6 below). You and Epson understand and
328 agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the
329 interpretation and enforcement of this Section 22, (b) this Agreement
330 memorializes a transaction in interstate commerce, and (c) this Section 22 shall
331 survive termination of this Agreement.
333 22.3 Pre-Arbitration Steps and Notice. Before submitting a claim for
334 arbitration, you and Epson agree to try, for sixty (60) days, to resolve any
335 Dispute informally. If Epson and you do not reach an agreement to resolve the
336 Dispute within the sixty (60) days, you or Epson may commence an arbitration.
337 Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal
338 Department, 3840 Kilroy Airport Way, Long Beach, CA 90806 (the “Epson Address”).
339 The Dispute Notice to you will be sent to the most recent address Epson has in
340 its records for you. For this reason, it is important to notify us if your
341 address changes by emailing us at EAILegal@ea.epson.com or writing us at the
342 Epson Address above. Notice of the Dispute shall include the sender’s name,
343 address and contact information, the facts giving rise to the Dispute, and the
344 relief requested (the “Dispute Notice”). Following receipt of the Dispute
345 Notice, Epson and you agree to act in good faith to resolve the Dispute before
346 commencing arbitration.
348 22.4 Small Claims Court. Notwithstanding the foregoing, you may bring an
349 individual action in the small claims court of your state or municipality if the
350 action is within that court’s jurisdiction and is pending only in that court.
352 22.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EPSON AGREE
353 THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL
354 CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE
355 PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR
356 CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE
357 ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A
358 REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION
359 PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR
360 CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL
361 AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
363 22.6 Arbitration Procedure. If you or Epson commences arbitration, the
364 arbitration shall be governed by the rules of JAMS that are in effect when the
365 arbitration is filed, excluding any rules that permit arbitration on a class or
366 representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or
367 by calling 1-800-352-5267, and under the rules set forth in this Agreement. All
368 Disputes shall be resolved by a single neutral arbitrator, and both parties
369 shall have a reasonable opportunity to participate in the selection of the
370 arbitrator. The arbitrator is bound by the terms of this Agreement. The
371 arbitrator, and not any federal, state or local court or agency, shall have
372 exclusive authority to resolve all disputes arising out of or relating to the
373 interpretation, applicability, enforceability or formation of this Agreement,
374 including any claim that all or any part of this Agreement is void or voidable.
375 Notwithstanding this broad delegation of authority to the arbitrator, a court
376 may determine the limited question of whether a claim or cause of action is for
377 an IP Claim, which is excluded from the definition of “Disputes” in Section 22.1
378 above. The arbitrator shall be empowered to grant whatever relief would be
379 available in a court under law or in equity. The arbitrator may award you the
380 same damages as a court could, and may award declaratory or injunctive relief
381 only in favor of the individual party seeking relief and only to the extent
382 necessary to provide relief warranted by that party’s individual claim. In some
383 instances, the costs of arbitration can exceed the costs of litigation and the
384 right to discovery may be more limited in arbitration than in court. The
385 arbitrator’s award is binding and may be entered as a judgment in any court of
386 competent jurisdiction.
388 You may choose to engage in arbitration hearings by telephone. Arbitration
389 hearings not conducted by telephone shall take place in a location reasonably
390 accessible from your primary residence, or in Orange County, California, at your
393 a) Initiation of Arbitration Proceeding. If either you or Epson decides to
394 arbitrate a Dispute, both parties agree to the following procedure:
396 (i) Write a Demand for Arbitration. The demand must include a description of
397 the Dispute and the amount of damages sought to be recovered. You can find a
398 copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for
401 (ii) Send three copies of the Demand for Arbitration, plus the appropriate
402 filing fee, to: JAMS, 500 North State College Blvd., Suite 600 Orange, CA 92868,
405 (iii) Send one copy of the Demand for Arbitration to the other party (same
406 address as the Dispute Notice), or as otherwise agreed by the parties.
408 b) Hearing Format. During the arbitration, the amount of any settlement offer
409 made shall not be disclosed to the arbitrator until after the arbitrator
410 determines the amount, if any, to which you or Epson is entitled. The discovery
411 or exchange of non-privileged information relevant to the Dispute may be allowed
412 during the arbitration.
414 c) Arbitration Fees. Epson shall pay, or (if applicable) reimburse you for,
415 all JAMS filings and arbitrator fees for any arbitration commenced (by you or
416 Epson) pursuant to provisions of this Agreement.
418 d) Award in Your Favor. For Disputes in which you or Epson seeks $75,000 or
419 less in damages exclusive of attorney’s fees and costs, if the arbitrator’s
420 decision results in an award to you in an amount greater than Epson’s last
421 written offer, if any, to settle the Dispute, Epson will: (i) pay you $1,000 or
422 the amount of the award, whichever is greater; (ii) pay you twice the amount of
423 your reasonable attorney’s fees, if any; and (iii) reimburse you for any
424 expenses (including expert witness fees and costs) that your attorney reasonably
425 accrues for investigating, preparing, and pursuing the Dispute in arbitration.
426 Except as agreed upon by you and Epson in writing, the arbitrator shall
427 determine the amount of fees, costs, and expenses to be paid by Epson pursuant
428 to this Section 22.6d).
430 e) Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for
431 any arbitration commenced involving a Dispute under this Agreement. Your right
432 to attorney’s fees and expenses under Section 22.6(d) above does not limit your
433 rights to attorney’s fees and expenses under applicable law; notwithstanding the
434 foregoing, the arbitrator may not award duplicative awards of attorney’s fees
437 22.7 Opt-out. You may elect to opt-out (exclude yourself) from the final,
438 binding, individual arbitration procedure and waiver of class and representative
439 proceedings specified in this Agreement by sending a written letter to the Epson
440 Address within thirty (30) days of your assent to this Agreement (including
441 without limitation the purchase, download, installation of the Software or other
442 applicable use of Epson Hardware, products and services) that specifies (i) your
443 name, (ii) your mailing address, and (iii) your request to be excluded from the
444 final, binding individual arbitration procedure and waiver of class and
445 representative proceedings specified in this Section 22. In the event that you
446 opt-out consistent with the procedure set forth above, all other terms shall
447 continue to apply, including the requirement to provide notice prior to
450 22.8 Amendments to Section 22. Notwithstanding any provision in this
451 Agreement to the contrary, you and Epson agree that if Epson makes any future
452 amendments to the dispute resolution procedure and class action waiver
453 provisions (other than a change to Epson’s address) in this Agreement, Epson
454 will obtain your affirmative assent to the applicable amendment. If you do not
455 affirmatively assent to the applicable amendment, you are agreeing that you will
456 arbitrate any Dispute between the parties in accordance with the language of
457 this Section 22 (or resolve disputes as provided for in Section 22.7, if you
458 timely elected to opt-out when you first assented to this Agreement).
460 22.9 Severability. If any provision in this Section 22 is found to be
461 unenforceable, that provision shall be severed with the remainder of this
462 Agreement remaining in full force and effect. The foregoing shall not apply to
463 the prohibition against class or representative actions as provided in Section
464 22.5. This means that if Section 22.5 is found to be unenforceable, the entire
465 Section 22 (but only Section 22) shall be null and void.
467 23. For New Jersey Residents. NOTWITHSTANDING ANY TERMS SET FORTH IN THIS
468 AGREEMENT, IF ANY OF THE PROVISIONS SET FORTH IN SECTIONS 7 OR 8 ARE HELD
469 UNENFORCEABLE, VOID OR INAPPLICABLE UNDER NEW JERSEY LAW, THEN ANY SUCH
470 PROVISION SHALL NOT APPLY TO YOU BUT THE REST OF THE AGREEMENT SHALL REMAIN
471 BINDING ON YOU AND EPSON. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT,
472 NOTHING IN THIS AGREEMENT IS INTENDED TO, NOR SHALL IT BE DEEMED OR CONSTRUED
473 TO, LIMIT ANY RIGHTS AVAILABLE TO YOU UNDER THE TRUTH-IN-CONSUMER CONTRACT,
474 WARRANTY AND NOTICE ACT.
projects / gentoo.git / blob