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D. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND
CLASS ARBITRATIONS:
1. Disputes. The terms of this Section D shall apply to all Disputes between you and
Epson. The term "Dispute" is meant to have the broadest meaning permissible
under law or in equity and includes any dispute, claim, controversy, or action
between you and Epson arising out of or relating to this Agreement (including
its formation, performance, or breach), the Software, Epson Hardware, the
parties' relationship with each other, and/or any other transaction involving you
and Epson, whether in contract, or with respect to warranty, misrepresentation,
fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or
equitable basis. However, a "Dispute" does not include 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 D, that a court, not an arbitrator,
may decide if a claim or cause of action is for an IP Claim.
2. Initial Dispute Resolution. Before submitting a claim for arbitration in accordance
with this Section D, 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
in accordance with Section D(6). Notice to Epson must be addressed to: Epson
America, Inc., ATTN: Legal Department, 3131 Katella Ave., Los Alamitos, CA 90720.
Any 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. Any
notice sent 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 address above. You
and Epson agree to act in good faith to resolve the Dispute before commencing
arbitration in accordance with this Section D(2).
3. Binding Arbitration. If we do not reach an agreed upon solution within a period
of sixty (60) days from the time informal dispute resolution is pursued pursuant
to Section D(2) above, then either party may initiate 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 RIGHT TO
DISCOVERY AND GROUNDS FOR APPEAL ARE MORE LIMITED THAN IN COURT.
Pursuant to this Agreement, binding arbitration shall be administered by JAMS,
a nationally recognized arbitration provider, pursuant to the JAMS Streamlined
Arbitration Rules and Procedures or its applicable code of procedures then in
effect for consumer related disputes, but excluding any rules that permit class
arbitration (for more detail on procedure, see Section D(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 D, (b) this Agreement
memorializes a transaction in interstate commerce, and (c) this Section D shall
survive termination of this Agreement.
4. Exception—Small Claims Court. Notwithstanding the parties' agreement to
resolve disputes through arbitration, you or we 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.
5. WAIVER OF CLASS ACTION AND CLASS ARBITRATION. YOU AND EPSON AGREE
THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN
INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION OR CLASS ARBITRATION.
If any court or arbitrator determines that the class action waiver set forth in this
paragraph is void or unenforceable for any reason or that an arbitration can
proceed on a class basis, then the arbitration provision set forth herein shall be
deemed null and void in its entirety and the parties shall be deemed to have not
agreed to arbitrate disputes.
6. Arbitration Procedure. If you or Epson commences arbitration, the arbitration shall
be governed by the JAMS Streamlined Arbitration Rules and Procedures or the
applicable rules of JAMS that are in effect when the arbitration is filed, excluding
any rules that permit arbitration on a class-wide 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, which shall be selected in accordance with the JAMS Streamlined
Arbitration Rules and Procedures, 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 D(1) above. The arbitrator shall be empowered to grant
whatever relief would be available in a court under law or in equity. 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. Each party will have
the right to use legal counsel in connection with arbitration at its own expense.
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 or, if you and we both agree, to conduct it online, in lieu of appearing
live. Arbitration hearings not conducted by telephone or online 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 (3) 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 (1) copy of the Demand for Arbitration to the other party (at
the same address as the notice of a dispute, above in Section D(2)), 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.
7. 30 Day Opt-out Right. You may elect to opt-out (exclude yourself) from the final,
binding, individual arbitration procedure and waiver of class proceedings set
forth in Section D of this Agreement by sending a written letter to the Epson
address listed above in Section D(2) within thirty (30) days of your assent to this
Agreement 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 proceedings specified in this Section D. In the event that you
opt-out consistent with the procedure set forth above, all other terms set forth
in the Agreement shall continue to apply, including the requirement to provide
notice prior to litigation. If you opt-out of these arbitration provisions, Epson
will also not be bound by them.
8. Amendments to Section D. 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 D (or resolve
disputes as provided for in Section D(7), if you timely elected to opt-out when you
first assented to this Agreement).
9. Severability. If any provision in this Section D 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
actions as provided in Section D(5). This means that if Section D(5) is found to be
unenforceable, the entire Section D (but only Section D) shall be null and void.
E. DISCLAIMER OF WARRANTIES:
THE WARRANTY AND REMEDY PROVIDED ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER EXPRESSED OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. SOME LAWS DO NOT ALLOW THE EXCLUSION
OF IMPLIED WARRANTIES. IF THESE LAWS APPLY, THEN ALL EXPRESS AND IMPLIED
WARRANTIES ARE LIMITED TO THE WARRANTY PERIOD IDENTIFIED ABOVE. UNLESS
STATED HEREIN, ANY STATEMENTS OR REPRESENTATION MADE BY ANY OTHER
PERSON OR FIRM ARE VOID. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW
LONG IMPLIED WARRANTIES LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO
YOU.
F. EXCLUSION OF DAMAGES; EPSON'S MAXIMUM LIABILITY:
IN NO EVENT SHALL EPSON OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, COST OF
SUBSTITUTE EQUIPMENT, DOWNTIME, CLAIMS OF THIRD PARTIES, OR INJURY TO
PROPERTY, RESULTING FROM THE USE OR INABILITY TO USE THE EPSON PRODUCT,
WHETHER RESULTING FROM BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY.
IN NO EVENT SHALL EPSON OR ITS AFFILIATES BE LIABLE FOR DAMAGES OF ANY
KIND IN EXCESS OF THE ORIGINAL RETAIL PURCHASE PRICE OF THE PRODUCT.
SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
G. Other Provisions:
1. Other Rights You May Have: This Limited Warranty gives you specific legal rights,
and you may also have other rights which vary from jurisdiction to jurisdiction.
Some jurisdictions do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitations or exclusions may not apply to
you.
2. Governing Law: Except for claims subject to arbitration pursuant to Section D,
you and Epson agree that the law of the state or country where you reside shall
govern.
3. Jurisdiction: Except for claims subject to arbitration pursuant to Section D, in the
event of a dispute you and Epson both consent to the jurisdiction of the courts
in your state of residence or, if you do not reside in a state, then of the courts in
Orange County, California.
To find the Epson Authorized Reseller nearest you, please visit www.epson.com in the
U.S. or www.epson.ca in Canada.
To find the Epson Customer Care Center nearest you, please visit
www.epson.com/servicecenterlocator in the U.S. or www.epson.ca/servicecenterlocator
in Canada.
To contact the Epson Connection
SM
, please call (800) 637-7661 or (562) 276-4394 in the
U.S. and (905) 709-3839 in Canada.
EPSON is a registered trademark and EPSON Exceed Your Vision is a registered logomark of Seiko Epson
Corporation.
PrivateLine is a registered trademark and Epson Connection is a service mark of Epson America, Inc.
Android TV, Chromecast, Google, Google Home, and YouTube are trademarks of Google LLC.
Windows is a registered trademark of Microsoft Corporation in the United States and/or other countries.
Mac is a trademark of Apple Inc., registered in the U.S. and other countries.
General Notice: Other product names used herein are for identification purposes only and may be trademarks of
their respective owners. Epson disclaims any and all rights in those marks.
This information is subject to change without notice.
© 2021 Epson America, Inc., 1/21
Printed in XXXXXX
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