Essential | Product Terms of Use

Last Updated: 8/10/17

These Product Terms of Use (“Terms”) and any other terms referred to herein, such as our Terms of Service, Limited Warranty, User Manual and Safety Guidelines, and Return Policy, are a legal agreement between you and Essential Products, Inc. and our subsidiaries (“EP,” “we” or “us”) and they apply to your use of any EP-branded device (the “Product”). These Terms include a mandatory arbitration provision and class action waiver in Section 21 below, which requires you to resolve Disputes with EP on an individual basis and through final binding arbitration. By accessing and using a Product, you agree to these Terms. If you do not agree, you may not use the Product, and you may return it in accordance with the applicable return policy.

1. Eligibility; Permitted Use

Our Products are not intended for use by anyone under the age of 13. By accepting these Terms, you hereby affirm that you are 13 or older. 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 use the Product only 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 that in doing so you will not violate any other agreement to which you are a party. You further agree to use the Product in compliance with all applicable laws.

Before using your Product, please carefully read any instructions that come with the Product, including instructions that may be available online.

2. Connectivity and Availability

An Internet connection, a wireless service plan, or a data plan from a third-party service provider may be required in order to use certain features. In such cases, your Internet connection, wireless service, or data plan is subject to the fees, restrictions, terms, and limitations imposed by your service provider. Please check with your service provider to ensure that the Product is compatible with your plan.

Some features or services of our Products may vary (by device or geography, for example), be offered for a limited time, or require additional purchases and/or separate subscriptions. In addition, if the Product requires wireless data services and is located in an area where it cannot access such services, you may not be able to use some or all of the features or services of the Product. We are not responsible for the unavailability of wireless data services or any corresponding loss of Product features or services.

Use of the Product may involve the transmission of data, which could result in charges to you, depending on the terms of your data plan with your third-party service provider. You acknowledge that you are responsible for any such charges.

3. Terms of Service

When you use a Product to access or use any websites, mobile applications or other online products or services provided by EP, such access and use is subject to all applicable terms and conditions, including our Terms of Service.

4. Consent to Data Practices; Privacy Policy

You agree that EP may collect, use and share information about you, including but not limited to information about your Product and your use of the Product Software (as defined below). This includes information such as IP address, device settings and preferences, hardware model, operating system version, network carrier and network technology information, device serial number, Wi-Fi network password, account tokens, user ID, installed applications, device location, and third-party products and services you connect to the device. If you enable certain Product features, such as the Essential usage and diagnostics feature and location-based services, we may collect certain information to provide their respective functions, such as precise location information, battery performance and app battery usage, device usage, error logs, power status, system diagnostic logs, and reasons for reboots and network errors in connection with our Usage and Diagnostics feature. We may also collect audio and video information from Products that are equipped with a microphone or camera if you enable or use specific features of those Products. For more information, please see our Privacy Policy.

You are responsible for the information you provide to others, including third parties that provide products or services that interact with our Products. The information you provide to these third parties will be subject to the privacy policies or other terms they may provide to you.

5. Data Management

You are solely responsible for managing the data stored on your Product, including but not limited to passwords and other sensitive information. For example, if you decide to return your Product, you are responsible for erasing all of the data stored on the Product. You may have the ability to back up certain data stored on your Product to the cloud, including your account settings. You are responsible for the storage and management of data stored on your Product, and we are not responsible for the loss or disclosure of such data.

6. Location Services

The Product may have features that allow EP and third parties to collect, access, and use location and related information from your Product. If you are using location services for navigation purposes, you are responsible for driving safely, observing all traffic rules and complying with other applicable laws in the relevant jurisdiction, and using your own judgment while driving and selecting routes. Location data is provided for basic navigational and planning purposes only and is not intended to be relied upon in situations where precise location information is needed or where incomplete or inaccurate data can lead to death, personal injury, or property or environmental damage.

7. Software License

The software that is embedded in a Product and owned by EP or our licensors (“Product Software”) is licensed, not sold, to you. Product Software includes, but is not limited to, bootloader code, embedded software and third-party software, documentation, interfaces, content, fonts, and any other data that came with your Product, including any Updates (as defined below). Product Software does not include downloaded or sideloaded content, such as content provided by application developers. Subject to the terms and conditions contained in these Terms, EP grants to you a limited, nonexclusive, non-sublicensable license to install, use, access, display, and run one copy of the Product Software on a single Product that you own or control, solely for personal, non-commercial purposes. The license granted herein applies to all Product Software, unless such Product Software is accompanied by a separate license, in which case the terms of that license will govern.

Parts of the Android Open Source Project and other code used by the Product Software may be governed by open source licenses. These open source license provisions may override some of the terms of this agreement. The applicable open source licenses are available to you on our website or on the legal information section of the Settings menu of your Product.

The Product Software and all worldwide copyrights, trademarks, trade secrets, and other intellectual property rights therein are the exclusive property of EP and our licensors. We and our licensors reserve all rights in and to the Product Software not expressly granted to you by these Terms.

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose, or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in these Terms, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) distribute or make the Product Software available over a network where it could be used by multiple devices at the same time, (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in the Product Software, or (f) modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Product Software (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open source components that may be included with the Product Software).

You may not transfer these Terms or the rights to the Product Software granted herein to any third party unless it is in connection with the sale of a Product in which the Product Software is embedded. In such event, the transfer must include all of the Product Software (including all component parts, the media and printed materials, any Updates (as defined below), and these Terms) and you may not retain any copies of the Product Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Product Software must agree to these Terms.

These Terms do not grant you any rights to use EP’s proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third party software applications, for use with EP Products. Some of those rights may be available under separate licenses from EP.

8. Updates

EP may develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Product Software and related services (collectively, “Updates”). You acknowledge that you may be required to install Updates to use the Product and the Product Software, and you agree to promptly install any Updates that EP provides. These Terms will govern any Updates provided by EP that replace or supplement the original Product Software, unless we provide a separate license with the Update, in which case the terms of that license will govern.

Given the importance of receiving Updates for security or safety in a timely manner, to resolve critical problems and to defend against new threats and vulnerabilities, some Updates may be automatically downloaded and installed on your Product. You hereby consent to receive automatic Updates without receiving any additional notice or providing additional consent.

Note that for certain Products, Updates may only be offered by your network carrier. In that case, Updates will be governed by your contractual relationship with your network carrier.

9. Defective Products; Support

If a Product is or becomes defective through no fault of your own, you may be entitled to a refund, replacement, or repair. Please see our Limited Warranty for details. If you need support for your Product, please visit our support page.

10. Feedback

If you provide us (in a direct email or otherwise) with any feedback, suggestions, ideas, improvements, enhancements, and/or feature requests relating to the Product, Product Software, or Product features or services (collectively, “Feedback”), then you agree that such Feedback is gratuitous, unsolicited, non-confidential, and without restriction. We will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without acknowledgment or compensation to you and without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by receiving your Feedback, we do not waive any rights to use similar or related ideas previously known to us, developed by our employees, or obtained from sources other than you.

11. Third-Party Services

Our Products may allow you to access, interact with or operate third-party products, websites, mobile applications, or other online services (collectively, “Third-Party Services”). When you access, interact with, or use Third-Party Services, you accept that there are risks in doing so and that EP is not responsible or liable for such risks, regardless of whether or not EP has a relationship with the entity offering such Third-Party Services. Certain Third-Party Services accessible via the Product may display, include, or make available content, data, information, applications, or materials or provide links to certain websites, which may or may not be considered offensive, indecent, or objectionable, and may or may not include harassing, threatening, defamatory, offensive, infringing, or illegal messages or information.

EP has no control over and is not responsible for the content, completeness, accuracy, timeliness, copyright compliance, legality, privacy policies, or any other aspect of these Third-Party Services. EP does not warrant or endorse, and we do not assume and will not have any liability or responsibility to you or any other person for, any Third-Party Services or the content or materials contained therein. You acknowledge and agree that your interactions with such third parties are solely between you and such third parties.

12. Digital Certificates

You may have the ability to accept digital certificates issued by EP or others through the Product Software. To the maximum extent permitted by law, EP makes no warranties or representations, express or implied, as to merchantability or fitness for any particular purpose, accuracy, security, or non-infringement of third party rights with respect to digital certificates. You are solely responsible for determining trustworthiness of a digital certificate, whether issued by EP or a third party. Your use of digital certificates is at your own risk.

13. Disclaimer of Warranties

This section is applicable to the Product Software; the Product hardware is covered by EP’s Limited Warranty. To the maximum extent permitted by applicable law, the Product Software is provided “as is” and “as available,” with all faults and without warranty of any kind, and EP and our licensors hereby disclaim all warranties and conditions with respect to the Product Software, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment, and non-infringement of third-party rights. EP does not warrant against interference with your enjoyment of the Product Software, that the functions contained in, or services performed or provided by, the Product Software will meet your requirements, that the operation of the Product Software will be uninterrupted or error-free, that any Product features or services will continue to be made available, that defects in the Product Software will be corrected, or that the Product Software will be compatible or work with any third-party software, applications or services.

You acknowledge that the Product Software is not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data, or information provided by the Product Software could lead to death, personal injury, or severe physical or environmental damage, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support or weapons systems.

Using your Product in some circumstances can distract you and may cause a dangerous situation (for example, avoid typing a text message while driving a car or using headphones while riding a bicycle). By using your Product, you agree that you are responsible for observing rules that prohibit or restrict the use of mobile phones or headphones (for example, the requirement to use hands-free options for making calls when driving) and operating your Product in a safe and responsible manner.

No oral or written information or advice given by EP or an EP authorized representative shall create a warranty. Should the Product Software prove defective, you assume the entire cost of all necessary servicing, repair, or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusions and limitations may not apply to you.

14. Indemnification

To the fullest extent allowed by applicable law, you agree to indemnify, defend (at EP’s request), and hold harmless EP and our affiliates, agents, partners, licensors, suppliers, and assigns, and our and their directors, officers, employees, consultants and other representatives (together with EP, the “EP Parties”), from and against all third-party claims, liabilities, damages, losses, and expenses, (including without limitation, actual, indirect, incidental, consequential, and special damages, such as damages for expenses or business interruption, property damage, attorneys’ fees, and loss of use, data, revenue, income, profits, or value of assets or securities) arising from or related to (a) your use of the Product, Product Software, or Third-Party Services or (b) these Terms or any other applicable terms, policies, warnings, or instructions provided by us or a third party in relation to the Product, Product Software, or Third-Party Services.

15. Limitation of Liability

This section is applicable to the Product Software; the Product hardware is covered by EP’s Limited Warranty and Terms of Sale. 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 the EP Parties be liable to you or to any other person for any damages, costs, or liabilities arising from or related to your use of the Product Software, Third-Party Services, or these Terms or any other applicable terms, policies, warnings, or instructions provided by us or a third party in relation to the Product Software or Third-Party Services, including without limitation any indirect, incidental, consequential, or special damages, (including, but not limited to, damages for expenses or business interruption, property damage, attorneys’ fees, or loss of use, data, revenue, income, profits, or value of assets or securities),, even if an EP Party has been advised of the possibility of such damages, costs, or liabilities. To the fullest extent allowed by applicable law, in no event will the aggregate liability of the EP Parties to you for all damages exceed the amount of two hundred and fifty dollars ($250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. The limitations of liability set forth in this Section 15 will not limit or exclude liability for our fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct. Some jurisdictions do not allow the exclusion or limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.

16. Export Control

The Product Software and related technology are subject to U.S. export control and sanctions laws, including the U.S. Export Administration Regulations administered by the U.S. Bureau of Industry and Security and sanctions administered the U.S. Office of Foreign Assets Control (“OFAC”) and may be subject to export or sanctions laws and regulations in other countries. You agree to comply with all such laws and regulations and acknowledge that you have the responsibility to obtain any licenses or other approvals, if applicable, to export, re-export, or otherwise transmit the Product Software or related technology. The Product Software and related technology may not be downloaded, shipped, or otherwise exported or re-exported (a) into, or to a national or resident of, any country subject to U.S. sanctions (currently Cuba, Iran, North Korea, Sudan, Syria, and the region of Crimea); (b) to any person or entity on OFAC’s list of Specially Designated Nationals, or other U.S. export control lists; or (c) for any purpose prohibited by U.S. export control laws (e.g., nuclear, biological, or chemical weapons or missile technology).

17. Government End Users

The Product Software and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.

18. Changes to Product Features or Services or these Terms

EP may change, suspend, remove, or discontinue certain features or services associated with the Product, or any part of them, at any time without notice. EP also reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Product or our websites or mobile applications, or updating the “Last Updated” date at the beginning of these Terms. We encourage you to review these Terms frequently to ensure that you understand the terms and conditions that apply when you access and use our Products. Your continued use of a Product after the effective date of the revised version of these Terms constitutes your acceptance of the revised version of these Terms.

19. Termination

These Terms and the license granted hereunder are effective on the date you first use the Product and shall continue for as long as you own the Product, unless these Terms are terminated under this Section 19 or modified in accordance with Section 18. EP may terminate these Terms at any time if you fail to comply with any terms or conditions contained herein. You may terminate these Terms effective immediately by writing to us at legal@essential.com, or Essential Products, Inc., Attn: Legal Department, 380 Portage Avenue, Palo Alto, CA 94306, United States, with the following information: (a) your name and address; (b) the date on which the Product was first used; (c) the Product model name or model number and Product version; and (d) the IMEI, MEID, or serial number. Upon termination of these Terms, the license granted hereunder will terminate, and you must stop all use of the Product Software.

20. Governing Law; Jurisdiction

The United States Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“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 consent 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.

21. Dispute Resolution and Arbitration

Please read this Section 21 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 this agreement.

Some jurisdictions may limit or prohibit arbitration agreements or class action waivers. If you are a resident of such a jurisdiction, the arbitration agreement and class action waivers below are not applicable to you. Instead, the provisions requiring that Disputes (as defined below) be heard in small claims court will apply to any claims that you may have against EP. If your Dispute exceeds the monetary or other limits on jurisdiction of your local small claims court, any Dispute will be heard in the federal or state courts in Santa Clara County, California.

Binding Arbitration; Disputes; Small Claims. You and EP agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration, (which is either (a) the referral of a Dispute with an amount in controversy of less than $10,000.00 to one impartial person for a final and binding arbitration, or (b) the referral of a Dispute with an amount in controversy of $10,000.00 or more to 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 these Terms 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 Product or Product Software, 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 Section 21 will be governed by, construed, and enforced, both substantively and procedurally, by the FAA, to the maximum extent permitted by applicable law, consistent with the Governing Law provisions above.

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 legal@essential.com or by certified mail addressed to: General Counsel, Essential Products, Inc., 380 Portage Ave, Palo Alto, CA 94306, United States. 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 Section 21, 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 your hometown area. In the case of a Dispute with an amount in controversy of less than $10,000.00, the JAMS Streamlined Arbitration Rules & Procedures will apply. In the case of a Dispute with an amount in controversy of $10,000.00 or more, the JAMS Comprehensive Arbitration Rules & Procedures will apply, and each party will pick one arbitrator, with those two arbitrators picking the third arbitrator who will be the chief arbitrator. In the event 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 administrator, 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 either the JAMS Streamlined Arbitration Rules & Procedures or the JAMS Comprehensive Arbitration Rules & Procedures, as indicated above (collectively, the “JAMS Rules”) then in effect, and you agree that 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 herein govern the arbitration. You and EP agree that any Dispute must be commenced or filed within one year after such claim arises; 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 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, unless you live in California, in which case EP will pay its own fees and costs. 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.

Opt Out. You may opt out of this dispute resolution procedure by providing notice to EP no later than thirty (30) calendar days from the date of your first use of the Product. To opt out, you must send notice by e-mail to legal@essential.com, with the subject line: “Arbitration Opt Out,” and include in the e-mail (a) your name and address; (b) the date on which the Product was first used; (c) the Product model name or model number and Product version; and (d) the IMEI, MEID, or serial number, as applicable, if you have it (the IMEI, MEID, or serial number can be found (i) on the Product box; (ii) on the Product information screen, which can be found under Settings; or (iii) on the Product or in the SIM tray if applicable). Alternatively, you may opt out by mailing an opt-out request with the same information to General Counsel, Essential Products, Inc., 380 Portage Ave, Palo Alto, CA 94306, United States, postmarked no later than thirty (30) days from the date of your first use. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure. Opting out of this dispute resolution procedure will not affect the coverage of the Limited Warranty in any way, and you will continue to enjoy the benefits of the Limited Warranty.

Severability and Survival. If any portion of this Section 21 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 Section 21 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 21; 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 Section 21 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect, and the remainder of this Section 21 will be enforceable.

22. Severability

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.

23. California Users

Under California Civil Code Section 1789.3, California consumers 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.

Asset 97
en