Please read these Terms of Service carefully, including the arbitration and class action waiver provisions. Note that your use of and access to our Services (as defined below) are subject to the following terms. If you do not agree to all of the following terms you may not use or access the Services in any manner.
Effective date: April 27, 2018
These Terms of Service for consumers in Japan (“Terms”) govern your access to and use of our websites, mobile applications, and online products and services (the “Services”). If you have any questions, comments, or concerns regarding these Terms or the Services, please email us.
These Terms are a binding contract between you and Essential Products, Inc. and our subsidiaries and affiliates (“EP,” “we,” or “us”). By accessing or using the Services, you agree to these Terms. If you are accessing or using the Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. We may make changes to these Terms from time to time. If we make changes to these Terms, we will notify you, by updating the “Effective Date” date above and/or posting a notice on the Services. If you do not agree with the revised Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. Your continued use of the Services will confirm your acceptance of the revised version of these Terms.
In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products, or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product or service.
You hereby affirm that you are over the age of sixteen (16), as the Services are not intended for anyone under 16. If you are under 16 years of age, then you may not use the Services. In addition, if you are between the ages of 16 and 20, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms, and you represent and warrant that you have obtained consent to agree with this Terms of Service from your parent or legal guardian.
You represent and warrant that you have the full power and authority to enter into these Terms and that in doing so you will not violate any other agreement to which you are a party and that you have not been previously suspended or removed from the Services.
You represent, warrant, and agree that you will not use the Services or interact with the Services by uploading content or otherwise, or encourage or assist any other party to use or otherwise interact with the Services, in a manner that:
We reserve the right, in our discretion and at any time, to remove any Content from the Services, suspend or discontinue any part of the Services, introduce new features or impose limits on certain features, or restrict access to parts or all of the Services.
To access and use certain areas or features of the Services, you may need to register for an EP account. By creating an account, you agree to (a) provide accurate, current, and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Services on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.
By creating an EP account, you also consent to receive electronic communications from EP (e.g., via email or by posting notices to the Services). These communications may include notices about your account (e.g., payment authorizations, password changes, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
Content Ownership; Limited License. The Services and materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, videos, images, illustrations, and so forth (all of the foregoing, the “Content”) are owned by or licensed to EP and are protected by copyright and/or other intellectual property laws. Except as explicitly stated in these Terms, EP reserves all rights in and to the Services and the Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Services and Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell, or commercially use the Services or the Content; (b) copy, reproduce, distribute, publicly perform, or publicly display the Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Services or the Content; (d) use any data mining, robots, or similar data gathering or extraction methods; and (e) use the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
Feedback. If you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services or any of our Products (“Feedback”), then you agree that your disclosure is gratuitous, unsolicited, non-confidential and without restriction. We are free to use Feedback without any acknowledgement or compensation to you. We will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Prohibited User Conduct and Content. The Services may allow you and other users to create, post, store, and share content, including messages, text, photos, videos, software, and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and EP.
You grant EP a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, fully paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username, or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you.
When you post or otherwise share User Content on or through the Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to the public. You may also only post or otherwise share User Content that is non-confidential and that you have all necessary rights to disclose.
You may not create, post, store, or share any User Content that:
In addition, although we have no obligation to screen, edit, or monitor User Content, we may delete or remove User Content at any time and for any reason.
If you believe that anything on the Services infringes any copyright that you own or control, you may notify EP as follows:
Essential Products, Inc., 380 Portage Avenue, Palo Alto, CA 94306 email@example.com 650-300-0000
The notification shall contain (a) the date of the notice, (b) your identification details; (c) a link to the infringing content (where possible), and (d) the reasons why the content should be removed.
Warranty Disclaimer. THE SITE AND CONTENT ARE PROVIDED BY EP (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. The limitations of liability set forth in this section are subject to contrary mandatory provisions of applicable law and will not limit or exclude liability for personal injury or property damage directly and proximately caused by the Services or for EP’s fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct.
To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) will EP and our agents, partners, licensors, and suppliers, and our and their directors, officers, employees, consultants and other representatives (together with EP, the “EP Parties”) be liable to you or to any other person for any damages, costs, or liabilities arising from these Terms or the Services, including without limitation any indirect, incidental, consequential, or special damages or damages for loss of data, even if an EP Party has been advised of the possibility of such damages. To the fullest extent allowed by applicable law, in no event will the aggregate liability of the EP Parties will not exceed twenty five thousand Yen (¥25,000.00).
Indemnity. You agree to indemnify, defend (at EP’s request), and hold the EP Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or related to any third-party claims relating to: (a) your alleged or actual violation of these Terms, (b) your use of the Services or Content, (c) your Feedback or User Content, (d) your violation, misappropriation, or infringement of any right of another, or (e) your violation of any applicable laws or regulations.
Binding Arbitration and Class Action Waiver
Please read the following section carefully because it requires you to submit to binding arbitration(and jury trial waiver) of any and all Disputes (other than specified intellectual property claims and small claims) with EP and limits the manner in which you can seek relief from EP. No class or representative actions or arbitrations are allowed under these Terms.
Binding Arbitration; Disputes; Small Claims. You and EP agree to waive any right to a jury trial and accept the use of binding arbitration before a three member panel (which is the referral of a Dispute (as defined below) to, in this case, three impartial persons for a final and binding determination); provided, however, that you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court only in your local jurisdiction of residence or Santa Clara County, California. “Dispute” as used in this arbitration section means any dispute, cause of action, claim, or controversy arising out of or in any way related to the sale, condition, use, or performance of the Services, these Terms, or the subject matter of these Terms, including but not limited to personal injury disputes and disputes that involve third parties (such as developers of content), except any dispute, cause of action, claim, or controversy relating to your or EP’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). This section does not prevent the parties from seeking public injunctive relief in a court of competent jurisdiction.
No Class Arbitrations, Class Actions, or Representative Actions. You and EP agree that any Dispute is personal to you and EP, and that any Dispute will only be resolved by an individual arbitration and will not be brought, whether inside or outside of arbitration, as a class or representative action, or on behalf of any other person or persons.
Federal Arbitration Act. You and EP agree that these Terms affect interstate commerce and that the enforceability of this arbitration section will be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), to the maximum extent permitted by applicable law, consistent with the Choice of Law provisions below.
Confidentiality. The arbitrators, EP, and you will maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against EP, you agree to first contact EP and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to EP by email at firstname.lastname@example.org or by certified mail addressed to General Counsel, Essential Products, Inc., 380 Portage Ave, Palo Alto, CA 94306, U.S.A. The Notice must (a) include your name, residence address, email address, and mobile telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and EP cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may, as appropriate in accordance with this arbitration section, submit the Dispute to binding arbitration administered by JAMS or, where applicable, in court. You will have the right to an in-person hearing in Tokyo, Japan. Each party will pick one arbitrator, and those two arbitrators will pick the third arbitrator who will be the chief arbitrator. In the event that JAMS declines or is unable to administer the arbitration, you and EP agree to have the arbitration administered by the American Arbitration Association (“AAA”), or another mutually agreed-upon administration, in accordance with the AAA Consumer Arbitration Rules. If, after making a reasonable effort, you and EP are not able to agree upon an arbitration forum, JAMS will appoint an arbitration forum or arbitrators. The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”) then in effect, and you agree such rules are subject to changes that JAMS may make from time to time. The JAMS Rules and other information about JAMS and arbitration are available at https://www.jamsadr.com, or by calling 1-800-352-5267. By agreeing to these Terms, you either (1) acknowledge that you have read and understand the JAMS Rules or (2) waive reading the JAMS Rules. You and EP agree that the terms set forth in these Terms govern the arbitration. You and EP agree that any Dispute must be commenced or filed within one year after such claim arose; otherwise, the Dispute is permanently barred.
As limited by the FAA, these Terms, and the applicable JAMS Rules, the arbitrators will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute, including the power to determine the question of arbitrability; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrators may only conduct an individual arbitration, may not consolidate more than one person’s claims, and may not preside over any form of representative or class proceeding or any proceeding on behalf of or involving more than one person.
Fees and Award. If you initiate a Dispute, you will be required to pay a $250 USD filing fee, which is approximately equivalent to current court filing fees. All costs associated with the arbitration will be paid by EP. The party that does not prevail in the Dispute will be required to pay the other party’s fees and costs, including attorneys’ fees. An arbitrator's award will consist of a written statement stating the disposition of each claim and will provide a concise written statement of the findings and conclusions on which the award is based.
Severability and Survival. If any portion of this arbitration section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this arbitration section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect, and the remainder of this arbitration section will be enforceable.
If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
Choice of Law and Jurisdiction. The FAA applies to the agreement to arbitrate to the maximum extent allowable. Except as preempted by FAA, the laws of the State of California, without reference to its choice of law principles, will govern these Terms. With the exception of Disputes in small claims court or in arbitration, the parties agree to exclusive jurisdiction and venue in the state or federal courts located in Santa Clara County, California for any claims arising out of a Dispute relating to these Terms. Notwithstanding the Section titled “Binding Arbitration and Class Action Waiver”, if you are a consumer in Japan, you have the right to resolve disputes before the Tokyo District Court in Japan. Nothing in this Limited Warranty affects your rights as a consumer in Japan to rely on mandatory provisions of Japanese law.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without EP’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. Failure to exercise a right does not constitute a waiver. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms will otherwise remain in full force and effect and enforceable. There are no third-party beneficiaries intended under these Terms. These Terms are the only agreement between the parties with respect to the subject matter herein; provided, however, that these Terms do not supersede any other agreements we may have with you with respect to different subject matter. Except for changes to the Terms by us (as described herein), no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. We reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services. We are not responsible for any loss or harm related to your inability to access or use the Services.