Insignia NS-40DR420NA16 User Manual page 89

NO WARRANTY FROM ROKU; Limitation of
LIABILITY
YOUR warranty with respect to the Television is provided by THE
TELEVISION'S MANUFACTURER, and not by Roku. ROKU OFFERS NO
WARRANTY TO YOU UNDER THIS EULA.WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING DISCLAIMER, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW:
(A) THE SEPARATELY LICENSED CODE AND THE SOFTWARE ARE
PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY
OF ANY KIND. ROKU DISCLAIMS ALL OTHER WARRANTIES AND
CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. ROKU DOES
NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE
TELEVISION, THE SEPARATELY LICENSED CODE AND THE
SOFTWARE WILL BE: (I) SECURE, VIRUS-FREE OR ERROR-FREE,
OR (II) FREE FROM ATTACK OR SECURITY INTRUSION.
(B) IN NO EVENT SHALL ROKU, ITS DIRECTORS, OFFICERS OR
EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR
PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES OF ANY KIND ARISING OUT OF ANY TELEVISION, THE
SEPARATELY LICENSED CODE, THE SOFTWARE, OR YOUR USE
THEREOF; AND
(C) YOU AGREE THAT (I) THE TOTAL CUMULATIVE LIABILITY OF
ROKU, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THIS
EULA, INCLUDING LIABIILTY RELATING TO ALL TELEVISIONS
LINKED TO YOUR ROKU ACCOUNT, AND THE SEPARATELY
LICENSED CODE AND THE SOFTWARE IN SUCH TELEVISIONS,
AND YOUR USE THEREOF, SHALL NOT EXCEED THE AMOUNT
SET FORTH IN THE ROKU ACCOUNT TERMS AND CONDITIONS
YOU AGREED TO FOR YOUR ROKU ACCOUNT, AND (II) ROKU, ITS
DIRECTORS, OFFICERS AND EMPLOYEES SHALL NOT BE LIABLE
TO YOU UNDER THIS EULA FOR ANY DIRECT DAMAGES ARISING
OUT OF, OR IN CONNECTION WITH THE TELEVISION. THE
FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY
PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF
ROKU, ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
Some jurisdictions do not allow exclusions OF CERTAIN warranties
OR LIMITATOINS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, so
SOME OF the ABOVE LIMITATIONS IN THIS SECTION MAY NOT apply
to You. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY
NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU, AND You
may also have other rights that vary from jurisdiction to
jurisdiction.
Export Controls
You agree not to download any Content or Software, nor otherwise
export or re-export any Television or the Software into (or to a
national or resident of ) Cuba, Iraq, Libya, North Korea, Iran, Syria or
any other country as to which the United States or your country has
embargoed goods, or to anyone on the U.S. Treasury Department's
List of Specially Designated Nationals or the U.S. Commerce
Department's Table of Denial Orders or on similar restricted lists
published by your government from time to time. By using any
Television or the Software, you are representing and warranting
that you are not located in, under the control of, or a national or
resident of any such country or on any such list.
Choice of Law; Dispute Resolution
A. If you are a consumer and a resident in any country in the
European Economic Area where the sale of the Television is
expressly authorized by its manufacturer, this EULA does not
apply to you.
B. In all other cases, including if you are a resident of the United
States (and its possessions and territories) or Canada, you agree
that this EULA shall be governed by the laws of the State of
California without regard to any conflict of laws principles that
may provide the application of the law of another jurisdiction;
and:
1. You and Roku agree to be bound by the procedures set
forth below to resolve any and all claims between you and
Roku arising out of or relating to any aspect of this EULA,
whether based in contract, tort, statute, fraud,
misrepresentation or any other legal theory, including but
not limited to, claims between you and Roku related to the
Television and the Software. Each such claim is referred to
individually as "Claim" and collectively as "Claims".
84 www.insigniaproducts.com
40"/48" 1080p, 60Hz, LED Insignia Roku TV
2. YOU AND ROKU AGREE THAT, EXCEPT FOR THE CLAIMS
IDENTIFIED IN PARAGRAPH 4 OF THIS SECTION BELOW,
ANY AND ALL CLAIMS BETWEEN YOU AND ROKU
SHALL BE FINALLY SETTLED BY BINDING ARBITRATION.
The arbitration shall take place in Santa Clara County,
California and shall be administered by the American
Arbitration Association ("AAA") pursuant to the AAA's
then-current rules, including (if applicable) the AAA's
Supplementary Procedures for Consumer-Related
Disputes. Please be aware there is no judge or jury in
arbitration. Arbitration procedures are simpler and more
limited than the rules applicable in court, and review of the
arbitrator's decision by a court is limited. YOU AND ROKU
FURTHER AGREE THAT EACH OF YOU MAY BRING
CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL
BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN
ANY PURPORTED CLASS OR REPRESENTATIVE ACTION
OR PROCEEDING. THE ARBITRATOR MAY NOT
CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S
CLAIM AND MAY NOT PRESIDE OVER ANY
CONSOLIDATED, REPRESENTATIVE OR CLASS
PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD
RELIEF (INCLUDING MONETARY, INJUNCTIVE OR
DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS
AND MAY NOT AWARD ANY FORM OF CONSOLIDATED,
REPRESENTATIVE OR CLASS-WIDE RELIEF.
Notwithstanding any provision in these terms to the
contrary, if the class-action waiver in this provision is
deemed invalid or unenforceable, or if an arbitration is
allowed to proceed on a class basis, then neither you nor
Roku are entitled to arbitrate the Claims. This arbitration
provision is subject to the Federal Arbitration Act. The
arbitrator's award shall be binding on you and Roku, and
may be entered in any court of competent jurisdiction.
3. Information on AAA and how arbitration is initiated can be
found at www.adr.org or by calling 800-778-7879. For
Claims between You and Roku of $75,000 or less, you will
be responsible for the initial arbitration filing fee, up to the
amount of the initial filing fee if you were to initiate a
lawsuit against Roku based on such Claims in court. If the
arbitrator finds such Claims to be non-frivolous, Roku will
pay any difference in such filing fees? plus the arbitrator
fees. For Claims between You and Roku in excess of
$75,000, if you are able to demonstrate that the costs of
arbitration will be prohibitive as compared to the costs of
litigation, Roku will pay as much of your actual filing fees
and the arbitrator fees for the arbitration as the arbitrator
deems necessary to prevent the arbitration from being
cost-prohibitive as compared to the cost of litigation.
4. This agreement to arbitrate does not apply to any Claim (a)
in which a party is attempting to protect its intellectual
property rights (such as its patent, copyright, trademark,
trade secret, or moral rights, but not including its privacy
or publicity rights), or (b) that may be brought in
small-claims court.
5. If the agreement to arbitrate in this provision is found to be
invalid, unenforceable or inapplicable to a given Claim
between You and Roku, then any and all proceedings to
resolve such Claim must be brought exclusively in a federal
court of competent jurisdiction in the Northern District of
California or in a state court in Santa Clara County,
California. You hereby irrevocably consent to the exclusive
jurisdiction and venue of such courts.
6. 30-Day Right to Opt Out: You have the right to opt out of
this agreement to arbitrate by sending a written notice of
your decision to opt out to the following address: Legal
Department, Roku, Inc., 12980 Saratoga Avenue, Saratoga,
California 95070, USA; provided that, such notice must be
postmarked on or before the 30th day after the first to
occur of the following events if you do not already have a
Roku Account: (a) the date of purchase of Your Television,
or (b) the date you create your Roku Account. If you have
an existing Roku Account, all devices you choose to link to
your Roku Account, and all services provided by Roku