EPSON CLOUD SOLUTION PORT TERMS OF USE FOR SERVICE
(INCLUDING AN AGREEMENT TO BINDING ARBITRATION AND A CLASS ACTION WAIVER

Effective Date: June 2021

1. INTRODUCTION AND OVERVIEW

Seiko Epson Corporation (including its subsidiaries and affiliated companies) (“EPSON”) provides to (“you”) the Epson Cloud Solution PORT Service (“ECSP”). As used in these Terms of Use, “EPSON Service” or “the Service” means ECSP, including all related features and functionalities thereof, the associated ECSP website portal, software and any related applications, as well as all EPSON and third-party content associated with the EPSON Service.

These Terms of Use govern access to your use of the EPSON Service, including any data accompanying or generated by the EPSON Service, and constitute a binding legal agreement between you and EPSON. Please review the EPSON ECSP Privacy Statement located here to understand how EPSON collects, processes, uses and stores certain information relative to the EPSON Service and related software, which may include your personal information.

NOTICE REGARDING DISPUTE RESOLUTION: These Terms of Use contain provisions that govern how claims you and we may have against each other are resolved (see Section 10 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 9. Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

YOU ACKNOWLEDGE AND AGREE THAT, BY REGISTERING AN EPSON ECSP ACCOUNT, ACCESSING OR USING THE EPSON SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY CONTENT FROM, OR ON, OR THROUGH THE EPSON SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE EPSON SERVICE. If you accept or agree to these Terms of Use on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such company or other legal entity to these Terms of Use and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

2. REGISTRATION

Registration. To use the EPSON Service you must have Internet access to sign up and register your account. Download and installation of the Data Collection Agent (“DCA”) software from EPSON to a PC (the DCA does not run on a Mac) that is connected to the same network as your EPSON printer device, or activation of ECSP from devices with embedded ECSP capability via the Embedded Status Agent (“ES Agent”), is required for use of the EPSON Service, which shall be subject to the Data Collection Agent End User License Agreement prompted during the software installation of the DCA. Some parts of the EPSON Service may not be available on all EPSON printer devices.

Use of Epson Global ID. Epson Global ID shall be obtained in order to use the Service. You will obtain your Epson Global ID when you register as a member according to the procedures set forth in the Terms of this Agreement. If You have already obtained an Epson Global ID, You can use the Service with Your registered Epson Global ID and password.

Compliance with Individual Use Conditions. When using the Service, in addition to the Terms of this Agreement, You shall comply with the conditions of use and cautions regarding individual functions (hereinafter referred to as "Individual Use Conditions") which comprise the Service listed on the Website. If there is a conflict between the Terms of this Agreement and the Individual Use Conditions, the Individual Use Conditions shall prevail and control.

EPSON Changes to the Service and Registration. EPSON reserves the right to change the EPSON Service and registration for the EPSON Service or any components thereof. EPSON will provide current registrants with reasonable notice of any change in the registration.

3. REGISTRATION AND OBTAINING EPSON GLOBAL ID

In order to obtain an Epson Global ID, You must complete registration of the Service in accordance with each section of this Section 3.

In order to obtain an Epson Global ID, You are required to provide true and accurate information (including personal information, such as passwords and email addresses, for Epson to contact, provide guidance or notification, hereinafter collectively referred to as "Registration Information") during the registration process.

Epson will determine acceptance or rejection towards Your registration according to Epson’s criteria, and if Your registration is accepted, Epson will notify You upon completion of registration. Such registration shall be deemed to be completed upon notification by Epson under this section. At such time, Epson will issue You Epson Global ID and notify You accordingly.

You can use Your Epson Global ID as a common ID for services specified on websites operated by Epson or Seiko Epson Group (hereinafter referred to as "Epson Global ID Compatible Services").

Epson shall not be held liable for any damage incurred due to providing false or incorrect Registration Information.

Epson may use the Registration Information for the Purpose of providing and improving Epson Global ID Compatible Services and communicating about Epson products and services.

4. USE OF THE EPSON SERVICE

License of Use. The Service and associated sites and content are owned by EPSON and protected by copyright, trademarks, database and other intellectual property rights. EPSON grants you a limited, non-exclusive, non-transferable right and license to access the EPSON Service for your internal business purposes relative to EPSON products so long as you have an active registered account with the Service. Except for the foregoing, no right, title or interest shall be transferred to you. You may use the EPSON Service only within the country in which you have established your account and only in geographic locations where EPSON offers its service.

Use in Compliance with Laws. You agree to ensure that use of the EPSON Service, including all features and functionalities associated therewith, will at all times be in accordance with all applicable laws, rules and regulations, including without limitation any U.S. export laws and regulations that may be applicable to you. By accessing and using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country on any such U.S. export prohibition list.

Prohibited Use and Acts. Except as expressly authorized in these Terms of Use, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use content and information contained on or obtained from or through the EPSON Service. You also agree not to: (i) circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in the EPSON Service; (ii) use any robot, spider, scraper or other automated means to access the EPSON Service; (iii) decompile, reverse engineer or disassemble any software or other products or processes accessible through the EPSON Service; (iv) insert any code or product or manipulate the content of the EPSON Service in any way; or (v) use any data mining, data gathering or extraction method in connection with the EPSON Service. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the EPSON Service, including any software viruses or any other computer code, files or programs. EPSON may terminate or restrict your use of the EPSON Service if you violate these Terms of Use or are engaged in illegal or fraudulent use of the EPSON Service.

Account Responsibility and Control. You have access and control over the Epson Global ID, and thereby You are responsible for any activity that occurs through the Epson Global ID. To maintain control over the account and prevent anyone from accessing the account, you should maintain control over your devices and systems that are used to access the Service as well as the Epson Global ID and not reveal such password to anyone. You are responsible for updating and maintaining the Registration Information. EPSON can terminate your Epson Global ID or place your Epson Global ID on hold in order to protect you, EPSON or its partners from identity theft or other fraudulent or prohibited activity.

Data Collection Agent/Embedded Status Agent. Download and installation of the Data Collection Agent software from EPSON, or an activation of an ES Agent, is required for use of the EPSON Service. The Data Collection Agent shall be subject to the Data Collection Agent Terms of Use and the EPSON standard End User License Agreement prompted during the software installation of the Data Collection Agent. If you are providing services to a third party using the EPSON Service, you agree to ensure that such third party accepts the End User License Agreement prompted by the Data Collection Agent software and/or the ES Agent. If EPSON becomes aware of any violation of these Terms of Use or the Data Collection Agent End User License Agreement, EPSON will promptly suspend access to the EPSON Service.

Security and Privacy. You are responsible for determining that the EPSON Service, and its related security is appropriate for your intended use and meets all of your requirements and legal obligations. You will only upload or allow to be uploaded data that you have affirmative consent to: (i) share with EPSON for its use in accordance with the EPSON ECSP Privacy Policy; and (ii) as applicable, handle according to your privacy policy. You will remain fully responsible for the consequences of your use of such data subject to your own privacy policy. If you are providing services to a third party using the EPSON Service and even if you have obtained affirmative consent from such third party, you agree that your use of such third party’s information obtained in connection with the provision of your services via the EPSON Service or otherwise may be subject to applicable laws, rules and regulations and you are solely responsible for knowing and strictly complying with the foregoing with respect to such third party’s information.

In the event you sell or otherwise transfer to a third party the EPSON printer you registered for the Service ("Printer") you represent and warrant that you will dispose the Printer in accordance with the instructions set forth in the Printer’s user’s guide, including but not limited to initialization of the Printer. In no event shall Epson be responsible or liable for your failure to properly dispose the Printer.

5. TERMINATION, CANCELLATION AND SUSPENSION

For Cause Termination or Suspension of Service. EPSON may, at its option, immediately suspend or terminate your use of the EPSON Service and/or Your Epson Global ID if: (i) you are in breach of the Agreement (or any other agreement you may have with EPSON) and, to the extent curable, fail to cure such breach within the time specified in the notice EPSON provides or within a reasonable period of time, as determined by EPSON in its sole discretion; (ii) EPSON determines that your use of the EPSON Service poses a security risk; or (iii) EPSON suspects fraud or abuse. Once your account or Global Epson ID is terminated, you will no longer have access to your account or any data Epson may have stored on its servers.

Cancellation. You may cancel your account or Global Epson ID, or withdraw from the Service at any time through your Global Epson ID account. If you are a customer, your account may also be deleted by the dealer who created your account. Once your account or Global Epson ID is canceled, you will no longer have access to your account or any data Epson may have stored on its servers.

EPSON Termination of the Service. In addition to immediate suspension or termination of Service as provided above in this same section, EPSON reserves the right to suspend or terminate for any reason your access to the EPSON Service by providing you with ninety (90) days’ notice of such termination. Once termination of your account or Global Epson ID is effective (90 days from notice of termination from Epson), you will no longer have access to your account or any data Epson may have stored on its servers.

Effect of Termination, Cancellation or Suspension. Upon termination, cancellation or suspension of the Service for any reason, you must immediately stop using the Service and any related software and data associated therewith, and your license to access and/or use the Service shall end or be suspended, as applicable. EPSON will not be liable to you or any third party for termination of access to the Service or the aforementioned data.

6. WARRANTY DISCLAIMERS; LIMITATIONS ON LIABILITY

THE EPSON SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE EPSON SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EPSON DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE EPSON SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT THE EPSON SERVICE OR EPSON DATA ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR DO NOT INFRINGE THE RIGHTS OF ANY PERSON.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EPSON OR ITS AFFILIATES OR ANY OF EPSON’S OR ITS AFFILIATES RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS (THE “EPSON PARTIES”) BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE EPSON SERVICE, (B) THESE TERMS OR (C) YOUR USE OF, OR INABILITY TO ACCESS OR USE, THE EPSON SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE EPSON SERVICE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR EPSON HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, 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.

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 EPSON SERVICE.

7. INDEMNITY

Indemnity by You. You agree to defend, indemnify and hold harmless EPSON, its affiliates, and its and their respective directors, officers, employees, agents, licensors from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your submissions; (iii) your use of the Service or your use of the Service on behalf of a third party; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) any misrepresentation made by you; (vii) your acts or omissions or (viii) any third party’s access and/or use of the EPSON Service or EPSON Data with your user names, password and any other sign on credentials/access controls related to the foregoing. EPSON reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with EPSON’s defense of any claim. You will not in any event settle any claim without the prior written consent of EPSON.

8. DATA RIGHTS

Epson Data. Except as provided in the next paragraph, EPSON is the sole and exclusive owner of all data concerning the EPSON Service and related products and services, including without limitation the results of any use of the EPSON Service and any data provided to you resulting from and/or relating to the EPSON Service (“EPSON Data”).

Your Data; Personal Information. EPSON will not own or be responsible for your data, which may consist of passwords, security questions and answers, login details and any data that is reasonably capable of being identified to a particular individual person (“Your Data”). If you are a dealer providing services to a third party, you will be the processor of the foregoing data as it relates to your customers and the provision of your services to them that may utilize the EPSON Service, and EPSON expects that you will maintain a privacy policy that communicates to your customers your practices with respect to the collection and processing of their personal information. You shall not collect nor share with EPSON any personal information without EPSON’s prior written approval, which to the extent obtained by EPSON, EPSON intends to delete as soon as it is aware of obtaining such personal information and no longer needed for any business or legal reason. Where required by applicable laws or regulations pertaining to security, confidentiality or privacy, you shall cause your customers and personnel to consent to the collection and sharing of any personal information prior to your sharing this information with EPSON.

Non-Personal Information; EPSON ECSP Privacy Policy. You acknowledge and agree that EPSON may hold data anywhere in the world. EPSON may collect certain non-personal information from you or your customers regarding the use of products and systems, their performance and the services provided by you for those products and systems. This data may be used by EPSON for any business purposes, which may include to provide and improve the quality of products, features and services, as well as offer you or your customers other products, services and features of potential interest in, all in accordance with the EPSON ECSP Privacy Statement located here.

9. PROTECTING INFORMATION

Confidential Information. You acknowledge that EPSON may disclose Confidential Information to you. “Confidential Information” means any confidential or trade secret information, including but not limited to EPSON Data, customer lists, customer personal information, product plans, technology, systems, business processes and any other financial, sales, marketing or business information that is not (i) disclosed in public materials or otherwise in the public domain through no action or disclosure by you; (ii) lawfully obtained from a third party by you without any obligation of confidentiality; (iii) lawfully known to you prior to disclosure by EPSON; or (iv) independently developed by you. You shall treat EPSON’s Confidential Information with at least a reasonable degree of care. You shall only use EPSON’s Confidential Information for the purposes consistent with these terms and shall not disclose EPSON’s Confidential Information to any person, except as EPSON may agree in advance and in writing in its own discretion. At EPSON’s request, you shall return to EPSON or destroy all of EPSON’s Confidential Information in your possession or control.

Security. You are solely responsible for ensuring that Your Data (including that of your customers, if applicable), such as account numbers, passwords, security questions and answers, login details and any other security or access information used by you to access the Service are kept safe and confidential. You must prevent unauthorized access to and use of any such data used with or stored in or by the Service. You are responsible for electronic communications sent to EPSON or to any third party containing such data and for all uses of the Service in association with such data, whether or not authorized by you. EPSON has the right to rely on user names, password and other signor credentials, access controls for the Service or any software provided or approved by EPSON to authenticate access to, and use of, the Service.

Security Breach. You shall maintain policies and procedures for responding to any reasonably suspected or actual acquisition or use of, or access to, Confidential Information by unauthorized persons (“Security Breach”). In the event of a Security Breach, you shall immediately conduct a reasonable investigation of the reasons for and circumstances surrounding such Security Breach, use best efforts and take all necessary actions to prevent, contain, and mitigate the impact of, such Security Breach, provide notice to EPSON within twelve (12) hours after you discover a Security Breach, collect and preserve all evidence concerning the discovery, cause, vulnerability, remedial actions and impact related to such Security Breach, which shall meet reasonable expectations of forensic admissibility, and, if requested by EPSON, provide notice to individuals or entities whose information was or may have been affected in a manner and format as required by law. EPSON reserves the right to deny you access to the Service, in whole or in part, if EPSON believes that any Security Breach has occurred and you have failed to adequately respond.

Feedback. You may submit comments, information, ideas, concepts, reviews, feedback, techniques or any other material contained in any communication you may send to EPSON. By submitting any idea, you agree that: (i) EPSON expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any submission; (ii) your submission will be non-confidential; and (ii) EPSON is free to use and disclose the idea on an unrestricted, worldwide basis in perpetuity without notifying or compensating you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the EPSON Service. You release EPSON from all liability and obligations that may arise from EPSON’s receipt, review, use or disclosure of any portion of any idea.

10. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

A. Disputes. The terms of this Section 10 shall apply to all Disputes between you and Epson. The term “Dispute” is meant to have the broadest meaning permissible under law and includes any dispute, claim, controversy or action between you and Epson arising out of or relating to this agreement, the Software, Epson hardware, or other transaction involving you and Epson, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. “DISPUTE” DOES NOT INCLUDE IP CLAIMS, or more specifically, a claim or cause of action for (a) trademark infringement or dilution, (b) patent infringement, (c) copyright infringement or misuse, or (d) trade secret misappropriation (an “IP Claim”). You and Epson also agree, notwithstanding Section 10(F), that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.

B. Binding Arbitration. You and Epson agree that all Disputes shall be resolved by binding arbitration according to this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this Agreement, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, pursuant to its code of procedures then in effect for consumer related disputes, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see Section 9(F) 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 9, (b) this Agreement memorializes a transaction in interstate commerce, and (c) this Section 9 shall survive termination of this Agreement.

C. Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, you and Epson agree to try, for sixty (60) days, to resolve any Dispute informally. If Epson and you do not reach an agreement to resolve the Dispute within the sixty (60) days, you or Epson may commence an arbitration. Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal Department, 3131 Katella Ave., Los Alamitos, CA 90806 (the “Epson Address”). The Dispute Notice to you will be sent to the most recent address Epson has in its records for you. For this reason, it is important to notify us if your address changes by emailing us at EAILegal@ea.epson.com or writing us at the Epson Address above. Notice of the Dispute shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). Following receipt of the Dispute Notice, Epson and you agree to act in good faith to resolve the Dispute before commencing arbitration.

D. 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.

E. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EPSON AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.

F. Arbitration Procedure. If you or Epson commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, (a) 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 9(A) above, And (b) a small claims court may determine if a claim is an individual action within the court’s jurisdiction, pursuant to Section 9(D) above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction.

You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Orange County, California, at your option.

1. Initiation of Arbitration Proceeding. If either you or Epson decides to arbitrate a Dispute, both parties agree to the following procedure:
• 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”).
• 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.
• 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.
2. 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.
3. Arbitration Fees. Epson shall pay, or (if applicable) reimburse you for, all JAMS filings and arbitrator fees for any arbitration commenced (by you or Epson) pursuant to provisions of this Agreement.
4. Award in Your Favor. For Disputes in which you or Epson seeks $75,000 or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you in an amount greater than Epson’s last written offer, if any, to settle the Dispute, Epson will: (i) pay you $1,000 or the amount of the award, whichever is greater; (ii) pay you twice the amount of your reasonable attorney’s fees, if any; and (iii) reimburse you for any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing the Dispute in arbitration. Except as agreed upon by you and Epson in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by Epson pursuant to this Section 4.
5. Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under this Agreement. Your right to attorney’s fees and expenses under Section 9(F)(4) 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.

G. Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the Epson Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of Epson Hardware, products and services) that specifies (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 9. 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.

H. Amendments to Section 10. 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 9 (or resolve disputes as provided for in Section 10, if you timely elected to opt-out when you first assented to this Agreement).

I. Severability. If any provision in this Section 9 is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 10(E). This means that if Section 10(E) is found to be unenforceable, the entire Section 10 (but only Section) shall be null and void.

11. FOR NEW JERSEY RESIDENTS. NOTWITHSTANDING ANY TERMS SET FORTH IN THIS AGREEMENT, IF ANY OF THE PROVISIONS SET FORTH IN SECTIONS 5 OR 11 ARE HELD UNENFORCEABLE, VOID OR INAPPLICABLE UNDER NEW JERSEY LAW, THEN ANY SUCH PROVISION SHALL NOT APPLY TO YOU BUT THE REST OF THE AGREEMENT SHALL REMAIN BINDING ON YOU AND EPSON. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT IS INTENDED TO, NOR SHALL IT BE DEEMED OR CONSTRUED TO, LIMIT ANY RIGHTS AVAILABLE TO YOU UNDER THE TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT.

12. JURISDICTION AND TIME LIMIT TO ASSERT CLAIMS.

A. Unless otherwise specified, the materials in the site are presented solely for the purpose of promoting products and providing support to customers in the United States. This Software is controlled and operated by Epson from its offices within the State of California, United States of America. Epson makes no representation that Software is appropriate or available for use in other locations. Those who choose to download or use the Software from other locations do so on their own initiative and are responsible for compliance with local laws, including without limitations U.S. export laws and regulations. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country on any such U.S. export prohibition list.

B. Except for Section 10, which is governed by the Federal Arbitration Act, in the event of a Dispute in which the provisions in Section 10 are inapplicable, severed from the remainder of this Agreement, or if you opt-out pursuant of the agreement to arbitrate disputes as provided for in Section 10(G), you and Epson both consent to the jurisdiction of your state of residence in the United States or California if you are not a U.S. resident. Any such Dispute must be filed no later than one year after the date the Software is first acquired (or, in the case of arbitration, must be asserted pursuant to Section 9(C) no later than one year after the date the Software is first acquired). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

In the event that any of the provisions herein are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that these terms shall otherwise remain in full force and effect.

13. MISCELLANEOUS

A. Changes to Terms of Use. EPSON may, from time to time, change these Terms of Use. Such revisions shall be effective immediately; provided however, for existing service subscribers, such revisions will not take effect until 30 days after notice of the change has been provided.

B. Survival. The provisions of these Terms of Use, which by their natural implication are intended to survive termination, so shall survive.

C. Notices. Formal Notices issued hereunder shall be provided in writing to the receiving party’s corporate address of record. Notices to EPSON shall be provided to the attention of the Legal Department.

D. Third Party Beneficiaries; Assignment. Except for affiliates of EPSON, no persons will be third party beneficiaries to these Terms of Use. You may not assign or transfer any of your rights and obligation under these Terms of Use, in whole or in part, by operation of law or otherwise, without the prior written approval of EPSON. You will enter into any documents required by EPSON to effectuate an assignment or transfer by EPSON of its rights and obligations under these Terms of Use to any affiliated company or to any entity that acquires or otherwise succeeds to all or substantially all of our business or assets related to the EPSON Service.

E. Severability. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect.

F. Communication Preferences. EPSON will send you information relating to your account (e.g. changes in password, confirmation messages, notices) in electronic form only, for example via emails to your email address provided during registration. You agree that any notices, agreements, disclosures or other communications that EPSON sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

G. Complete Agreement; No Waiver. This Agreement reflects our complete agreement regarding the EPSON Service and supersedes any prior agreements, representations, warranties, assurances or discussion related to the EPSON Service. This Agreement shall in no way cancel, modify or alter any other agreement in place between the parties hereto regarding matters outside the scope of the EPSON Service. Except as expressly set forth in this Agreement, as amended, (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 this Agreement, as amended, will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.