PLEASE READ THIS TERMS OF USE CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION. NOTE THAT YOUR USE OF AND ACCESS TO OUR SITE (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 SITE IN ANY MANNER.

Essential | Terms of Use

Effective date: 5/29/17

Welcome to essential.com. Please read on to learn the rules and restrictions that govern your use of our website and online products and services (the “Site”). If you have any questions, comments, or concerns regarding these terms or the Site, please contact us at legal@essential.com.

These Terms of Use (the “Terms”) are a binding contract between you and Essential Products, Inc. and our subsidiaries and other affiliates (“EP,” “we,” or “us”). You must agree to and accept all of the Terms, or you don’t have the right to use the Site; your using the Site means that you agree to all of these Terms. If you are accessing or using the Site 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, such as by updating the “Effective Date” date above and/or posting a notice on the Site.. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Site. Your continued use of the Site will confirm your acceptance of the revised 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.

Privacy

Please refer to our Privacy Policy at http://www.essential.com/privacy for information about how we collect, use and disclose information about you.

Use Restrictions

You hereby affirm that you are over the age of thirteen (13), as the Site is not intended for anyone under 13. If you are under 13 years of age, then you may not use the Site. In addition, if you are between the ages of 13 and 18 (or between 13 and the age of legal majority under applicable law), you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms.

You represent and warrant that you have the full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party and that you have not been previously suspended or removed from the Site. You represent, warrant, and agree that you will not use the Site or interact with the Site, or encourage or assist any other party to use or interact with the Site, in a manner that:

  • Infringes or violates the intellectual property rights or any other rights of anyone else (including EP);
  • Violates any law or regulation, including any applicable export control laws, or encourages or promotes any activity that violates these Terms;
  • Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  • Violates the security of any computer network, or cracks any passwords or security encryption codes;
  • Interferes with the proper working of the Site (including by placing an unreasonable load on the Site’ infrastructure);
  • Develop or use any third-party applications that interact with the Site without our prior written consent, including any scripts designed to scrape or extract data from the Site;
  • Copies or stores any significant portion of the Content; or
  • Decompiles, reverse engineers, or otherwise attempts to obtain the source code or bypasses or circumvents measures employed to prevent or limit access to any part of the Site.

We reserve the right, in our discretion and at any time, to remove any Content from the Site, suspend or discontinue any part of the Site, introduce new features or impose limits on certain features, or restrict access to parts or all of the Site.

Content Ownership; Limited License; Feedback; Prohibited User Conduct and Content

Content Ownership; Limited License. The Site and materials displayed or performed or available on or through the Site, including, but not limited to, text, graphics, data, articles, photos, 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 Site and the Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Site 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 Site 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 Site or the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use the Site or the Content other than for their intended purposes. Any use of the Site 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 Site or any of our products or services (“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 Site 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 Essential.

You grant EP a perpetual, irrevocable, nonexclusive, 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 Site, 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 not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. 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.

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using the Site. You will not:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to use another user’s account without authorization from that user and EP;
  • Use the Site in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site or that could damage, disable, overburden or impair the functioning of the Site in any manner;
  • Reverse engineer any aspect of the Site or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Site;
  • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Site that you are not authorized to access;
  • Develop or use any third-party applications that interact with the Site without our prior written consent, including any scripts designed to scrape or extract data from the Site;
  • Bypass or ignore instructions contained in our robots.txt file, accessible at www.essential.com/robots.txt, that controls automated access to portions of the Site; or
  • Use the Site for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying the Site, or that may expose EP or others to any harm or liability of any type.

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.

Third Party Sites

The Site may contain links or connections to third party websites or services that are not owned or controlled by EP. When you access third party websites or use third party services, you accept that there are risks in doing so, and that EP is not responsible for such risks, regardless of whether or not EP or its affiliates has a relationship with the entity offering such site(s) or service(s). We encourage you to be aware when you leave the Site and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

EP has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Site. In addition, EP will not and cannot monitor, verify, censor or edit the content of any third party site or service. You acknowledge and agree that your interactions with such third parties are solely between you and such third parties, and that EP is not responsible or liable in any manner for such interactions.

Copyright Complaints

We have a policy of limiting access to the Site and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on the Site infringes any copyright that you own or control, you may notify EP’s Designated Agent as follows:

Designated Agent: DMCA Complaints

Address: Essential Products, Inc., 380 Portage Avenue, Palo Alto, CA 94306

Telephone Number: 650-300-0000

E-Mail Address: copyright@essential.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on the Site is infringing, you may be liable to EP for certain costs and damages.

Disclaimer; Limitation of Liability; Indemnity; Dispute Resolution; Governing Law

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, NON-INFRINGEMENT, OR THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. 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) SHALL EP, OR OUR AFFILIATES, SUBSIDIARIES, AGENTS, PARTNERS LICENSORS, SUPPLIERS, AND ASSIGNS, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES (INDIVIDUALLY AND COLLECTIVELY, THE “EP PARTIES”)BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY MATTER BEYOND OUR REASONABLE CONTROL. EP’S MAXIMUM AGGREGATE LIABILITY TO YOU WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

To the fullest extent permitted by applicable law, you release EP and the other Essential Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

Indemnity. You agree to indemnify, defend (at EP’s request) and hold 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 Site or Content, (c) your Feedback or your violation, misappropriation, or infringement of any right of another; or (d) your violation of any applicable laws or regulations.

Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Except for small claims disputes in which you or EP seek to bring an individual action in small claims court located in the county of your address or disputes in which you or EP seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and EP waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or the Site resolved in court. Instead, all disputes arising out of or relating to these Terms or the Site will be resolved through confidential binding arbitration held in Santa Clara County, California or via telephone conference in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

YOU AND EP AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE IS PERSONAL TO YOU AND EP AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.

You and EP agree that these Terms affect interstate commerce and that the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and EP agree that for any arbitration you initiate, you will pay the filing fee and EP will pay the remaining JAMS fees and costs. For any arbitration initiated by EP, EP will pay all JAMS fees and costs. You and EP agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND EP WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this section by notifying us at Essential Products, Inc., Attention: Legal Department, 380 Portage Avenue, Palo Alto, CA 94306. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the Governing Law provision below.

Governing Law. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The parties agree to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Santa Clara County, California, or the Northern District of California.

Miscellaneous; California Users

Miscellaneous. 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 Site. We are not responsible for any loss or harm related to your inability to access or use the Site.

California Users. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by telephone at (800) 952-5210.

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