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Epson Moverio Assist Terms of Service

 

1. Introduction and Overview

1.1. Epson America, Inc. (“Epson”) provides a subscription service that allows a user with one or more Epson Moverio smart glasses devices (“Moverio Devices”) to access Epson’s Moverio Assist service. As used in these Terms of Service, “Epson service,” “our service” or “the service” means the Moverio Assist subscription service provided by Epson for remote assistance, inspection or training by subscribers in connection with Moverio Devices, including all features and functionalities of the Moverio Assist service, the associated Epson website and applications, as well as all Epson and third-party content associated with our service.

1.2. These Terms of Service govern access to and use of our service and constitute a binding legal agreement between you, and any company on whose behalf you are registering for and/or using the service on the one hand, and Epson on the other hand. Personally identifying information is subject to our Privacy Policy available at: www.epson.com/moverioassistprivacypolicy. Please review our Privacy Policy to understand how we collect, process, use and store information, which may include your personal information. The Moverio Assist service is: (a) intended only for use by subscribers located in the United States; and (b) strictly prohibited for use by or in relation to individuals located in GDPR applicable countries, Switzerland, embargoed/sanctioned countries (“Restricted Use Countries”).

1.3. YOU ACKNOWLEDGE AND AGREE THAT, BY REGISTERING AN EPSON MOVERIO ASSIST 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 SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE EPSON SERVICE. If you accept or agree to these Terms of Service 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 Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

1.4. YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 5 TO RESOLVE ANY DISPUTES WITH EPSON.

2. Subscription, Billing and Cancellation

2.1. Subscription and Automatic Renewal. Your Epson service subscription will continue month-to-month and automatically renew until terminated or cancelled. To use the Epson service you must have Internet access and one or more Moverio Devices and provide us with one or more Payment Methods. “Payment Method” means a current, valid credit card, as may be updated from time to time. You must cancel your subscription before it renews each month in order to avoid billing of the next month’s subscription fees to your Payment Method (see “Cancellation” below). By submitting your Payment Method, you automatically authorize Epson, or its designated affiliate or payment processor, to charge all service subscription fees and sales taxes incurred through your account, including automatic renewing monthly fees, to any such Payment Method.

2.2. Billing Cycle. The subscription fee for the Epson service and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged on a monthly basis to your Payment Method on the calendar day corresponding to the commencement of the paying portion of your subscription until your subscription is cancelled. Subscription fees are fully earned upon payment. In some cases your payment date may change, for example if your Payment Method has not successfully settled, or if your paid subscription began on a day not contained in a given month. Visit our website and click on the “Billing Details” link on the “Payments” page to see your next payment date. We may authorize your Payment Method in anticipation of subscription or service-related charges through various methods, including authorizing it for a nominal charge and then reversing that charge once approved.

2.3. Payment Methods. To use the Epson service you must provide one or more Payment Methods. You can update your Payment Methods by going to the “Company Info” page. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s). You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment of your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your subscription, we will suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. All payments shall be made in U.S. dollars. You agree to be responsible for all taxes associated with your use of the service, along with any transaction fees and currency conversions added by your financial institution and intermediaries.

2.4. Service Plans. The service will be offered through per-minute service plans as further described in the “Subscription Plan” page available at: epson.com/support/assistplans. For each Moverio Device, you will be responsible for selecting the service plan that is appropriate for your usage. To purchase a subscription plan for your Moverio Device after it has been added to your account, please click on “Buy Subscription” on your “Glasses” page. To see and make changes to your selected service plan for each Moverio Device, go to the “Glasses” page on the Moverio Assist website and click on the “Activation Code” for each Moverio Device you wish to view or make subscription plan changes for. Changes to your selected service plan will take effect the subsequent billing cycle. Each Moverio Device will require a distinct minute plan for access to the service in connection with such Moverio Device. Minute plans cannot be shared or mixed between different Moverio Devices. Fractions of a minute used for any given billing period are rounded up to the next whole minute. Unused plan minutes, if any, from a monthly billing period will expire at the end of that monthly billing cycle and will not rollover to the next month.

2.5. Cancellation. You may request cancellation of your service subscription for a Moverio Device at any time but such cancellation will not be effective until the end of your then-current monthly billing period for such Moverio Device. After requesting cancellation, you will continue to have access to the Epson service through the end of your then-current monthly billing period for the applicable Moverio Device. To cancel your service subscription, go to the “Glasses” page on the Moverio Assist website and click on the “Activation Code” for each Moverio Device you wish to cancel, then on the “Glasses Details” page, click on “Cancel Subscription for this Device”. You must repeat these steps for all Moverio Devices to cancel your entire service subscription. To see the date when your subscription will end for any applicable Moverio Device, click on your “Glasses” page. After 90 days of account inactivity (e.g., no active subscription plan), we may notify you that you have 30 days to re-activate your subscription in order to keep your account active.

2.6. Changes to the Price and Subscription Plans. We reserve the right to change our service subscription and billing plans or adjust pricing for our service or any components thereof. We will provide current subscribers with reasonable notice of any change in service pricing. Any price changes or changes to service plans will be effective immediately or on the date specified in the notice except for existing subscribers, such changes will not take effect until 30 days after notice of the change has been provided. Your continued use of the service after such price change comes into effect constitutes your agreement to pay the modified service subscription price amount.

2.7. Epson Termination of Service. If Epson determines in its sole discretion that you have violated these Terms of Service, including without limitation the geographic restrictions state in Section 1.2 above, Epson reserves the right to terminate your subscription immediately. In the event a customer changes its address to a Restricted Use Country, Epson reserves the right to immediately suspend the subscription and terminate after thirty (30) days if the address change is either confirmed or not reverted by customer as a result of error. In addition to the forgoing, Epson reserves the right to terminate your subscription to the Epson service by providing you with at least six months’ notice of such termination, which notice will be effective at the end of the monthly billing cycle during which it is provided.

2.8. No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation by you, as provided in 3.4 above, you will continue to have access to the Epson service through the end of your current billing period. Violation of these Terms of Service may result in immediate termination of access to the service for the remainder of a current billing period.

2.9. Promotional Codes and Pre-paid Licenses. Promotional codes, as authorized by Epson in its sole discretion, may be given out as free trial minutes and may be used only once per account. Prepaid license keys may be purchased from authorized Epson resale partners and will expire based upon first reaching time limits (e.g., number of months after activation) or use limits (e.g., minutes used). Use of promotional codes or prepaid license keys require an active remote assist account tied to an active credit card and at least one pair of applicable Moverio glasses. No cancellations or refunds apply, and minutes apply only to one pair of glasses and may not be shared amongst other pairs of glasses.

3. Use of the Epson Service

3.1. You must be 18 years of age, or the age of majority in your state, province or territory to subscribe to and use the Epson service.

3.2. The service and associated sites and content are owned by Epson and protected by copyright, trademarks, database and other intellectual property rights. During your Epson service subscription, we grant you a limited, non-exclusive, non-transferable right to access the Epson service for your internal business purposes. 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 we offer our service.

3.3. You agree to use the Epson service, including all features and functionalities associated therewith, 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.

3.4. Except as expressly authorized in these Terms of Service, 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 circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in the Epson service; use any robot, spider, scraper or other automated means to access the Epson service; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Epson service; insert any code or product or manipulate the content of the Epson service in any way; or 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. We may terminate or restrict your use of our service if you violate these Terms of Service or are engaged in illegal or fraudulent use of the Epson service.

3.5. The subscriber who created the company account for the service and whose Payment Method is charged has access and control over the Epson service account and the Moverio Devices that are used to access our service and is responsible for any activity that occurs through such account and Moverio Devices. To maintain control over the account and prevent anyone from accessing the account, you should maintain control over the Moverio Devices that are used to access the service as well as the Epson account password and not reveal such password to anyone. You are responsible for updating and maintaining the accuracy of the information you provide to us relating to your account. We can terminate your account or place your account on hold in order to protect you, Epson or our partners from identity theft or other fraudulent or prohibited activity. Epson is not obligated to credit or discount a subscription for any such termination or holds placed on your account.

4. Disclaimers of Warranties and Limitations on Liability

4.1. 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 DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE EPSON SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EPSON SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF THE SERVICE, APPLICATIONS, MOVERIO DEVICES, AND EPSON SOFTWARE.

4.2. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL EPSON, OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY DAMAGES THAT RESULT FROM YOUR ACCESS TO, USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING WITHOUT LIMITATION FOR ANY PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND.

4.3. 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 SERVICE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

5. Disputes, Binding Individual Arbitration, Waiver Of Class Actions And Class Arbitrations

5.1 Disputes. The terms of this Section 5 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 these Terms of Service, the Epson service, 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 5.6, that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.

5.2 Binding Arbitration. You and Epson agree that all Disputes shall be resolved by binding arbitration according to these Terms of Service. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. 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 5.6 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 5, (b) these Terms of Service memorialize a transaction in interstate commerce, and (c) this Section 5 shall survive termination of the Terms of Service and/or your use of the service.

5.3 Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, you and Epson agree to try, for 60 days, to resolve any Dispute informally. If Epson and you do not reach an agreement to resolve the Dispute within the 60 days, you or Epson may commence an arbitration. Notice to Epson must be addressed to: Epson America, Inc., ATTN: Legal Department, 3840 Kilroy Airport Way, Long Beach, CA 90806 (the “Epson Address”). The Dispute Notice to you will be sent to the email address Epson has in its records for your account. 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.

5.4 Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.

5.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EPSON AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A 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.

5.6 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 these Terms of Service. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms of Service. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including any claim that all or any part of these Terms of Service 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 5.1 above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court 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.

          a) Initiation of Arbitration Proceeding. If either you or Epson decides to arbitrate a Dispute, both parties agree to the following procedure:

                  1. 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”).

                  2. Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, 500 North State College Blvd. 14th floor, Orange, CA 92868, U.S.A.

                  3. Send one copy of the Demand for Arbitration to the other party (same address as the Dispute Notice), or as otherwise agreed by the parties.

         b) Hearing Format. During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Epson is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.

         c) Arbitration Fees. Epson shall pay, or (if applicable) reimburse you for, all JAMS filings and arbitrator fees for any arbitration commenced (by you or Epson) pursuant to provisions of these Terms of Service.

         d) d) 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 5.6(d).

         e) e) Attorney’s Fees. Epson will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under these Terms of Service. Your right to attorney’s fees and expenses under Section 5.6(d) above does not limit your rights to attorney’s fees and expenses under applicable law; notwithstanding the foregoing, the arbitrator may not award duplicative awards of attorney’s fees and expenses.

 5.7 Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in these Terms of Service by sending a written letter to the Epson Address within 30 days of your assent to these Terms of Service (including without limitation the purchase, download, installation, or use of the Epson service) that specifies (i) your name and if applicable, your Epson service account information, (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 5. 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.

5.8 Amendments to Section 5. Notwithstanding any provision in these Terms of Service to the contrary, you and Epson agree that if Epson makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Epson’s address) in these Terms of Service, 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 5 (or resolve disputes as provided for in Section 5.7, if you timely elected to opt-out when you first assented to these Terms of Service).

6. Miscellaneous

6.1. Changes to Terms of Service. Epson may, from time to time, change these Terms of Service. 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.

6.2. Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the state of California, U.S.A. without regard to the conflict of laws provisions. These terms will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your state of residence.

6.3. Feedback. Epson is free to use any comments, information, ideas, concepts, reviews, feedback, techniques or any other material contained in any communication you may send to us worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Epson service.

6.4. Severability. If any provision or provisions of these Terms of Service 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. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 5.5. This means that if Section 5.5 is found to be unenforceable, the entire Section 5 (but only Section 5) shall be null and void.

6.5. Assignment. Epson may assign our agreement with you 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.

6.6. Communication Preferences. We will send you information relating to your account (e.g. payment authorizations, invoices, changes in password or Payment Method, 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 we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

August 22, 2019

 

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