Essential | Terms of Sale

Last Updated: 10/21/2017

These Terms of Sale apply when you purchase services, devices and/or accessories (collectively, the “Products”) from Essential Products, Inc. (“EP,” “we” or “us”). By placing an order, you agree to these Terms of Sale and any other terms and conditions referenced below. Please read these Terms of Sale carefully, including the mandatory arbitration provision and class action waiver in the Dispute Resolution and Arbitration section below, which requires you to resolve Disputes (as defined below) with us on an individual basis and through final binding arbitration. If you do not agree to these Terms, do not place an order. These Terms of Sale do not alter in any way the terms or conditions of any other agreement you may have with us.

Authority to Purchase Products You must be at least 18 years of age (or the age of legal majority where you reside) to purchase a Product from us. By making a purchase, you represent and warrant that you have the right, authority, and capacity to enter into this agreement with us. If you are purchasing a Product on behalf of another person or entity, you further represent and warrant that you are authorized to accept these Terms of Sale on that person’s or entity’s behalf and that the person or entity agrees to be responsible to us if you violate the terms and conditions herein.

Product-Specific Terms and Usage When you use our Products, your use is subject to the applicable terms and conditions for those Products, including our Product Terms of Use and Limited Warranty.

Instructions for the use of your Product can be found on our website. Please carefully read these instructions before using your Product. You agree to comply with any software license agreements or end-user license agreements applicable to your use of software on the Product. EP may issue software updates that you will need to install for the applications or services on your Product. Installation and use of the software updates may require your consent to additional license agreements or terms.

Privacy Please see our Privacy Policy for information about how we collect, use and disclose information about you.

Orders and Payment When you place an order for a Product through our online store, you authorize us (or our payment processor) to charge the credit card, debit card, or other payment method you have chosen for the total amount of your order, including any applicable taxes and other charges. If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order.

After we receive your order, we will send you an email confirming your order information. This email confirmation does not mean that we have accepted your order, nor is it an offer to sell. If we cancel an order after you have been billed, we will refund the billed amount. All Products offered for sale are subject to availability, and we reserve the right to impose quantity limits on any order and to reject all or part of any order.

Pricing and Taxes All prices are shown in U.S. dollars and do not include applicable taxes and other charges, unless we state otherwise. The purchase price of a Product may fluctuate with exchange rates if you are paying for your order with an international credit card. For international payments, foreign conversion charges and fees may be charged by your bank or credit card issuer. Please contact your bank or credit card issuer if you desire more information about these charges.

We may change prices for Products at any time, but changes in pricing will not affect any order for Products you have already placed. If we reduce the price of a Product within fifteen (15) calendar days from the date you purchased the Product, you may request a refund or credit of the difference between the price you were charged and the current selling price. You must contact us about your request within fifteen (15) days of the price change. This price protection is not available for limited-time price reductions, and we reserve the right to determine what constitutes a limited-time price reduction in our sole discretion.

You are responsible for any sales, use, value-added, or other governmental taxes, fees, or duties due with respect to your purchase and use of the Products. For international orders, you may be charged duties, other taxes, and customs brokerage fees for the importation of the Product to its destination. When we have a duty to collect applicable taxes, we will present an estimate of such taxes to be collected at checkout. The actual taxes charged and collected may differ from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. Please note that we do not collect taxes on Products shipped to jurisdictions in which we do not have a substantial nexus.

Shipping & Delivery You agree to pay any shipping and handling charges shown to you at the time you make a purchase. We reserve the right to increase, decrease, add, or eliminate these charges from time to time. Please review the Shipping page to learn more about how and when you will receive the Products you purchase from us. The actual delivery of your order may be affected by events beyond our control. We are not liable for deliveries past our projected delivery date, but we will work with you in an effort to ensure a satisfactory delivery. Unless we state otherwise, risk of loss or damage to a Product passes to you upon delivery of the Product to your specified delivery location.

Returns and Refunds We accept returns for physical Products purchased directly from us if (a) they are returned in a like-new condition within fifteen (15) days of the date you received the Product and (b) the security features that help protect the Product against loss or theft are not activated. We will exchange the Product or refund your original payment method, less any applicable restocking fee. For more information, please visit the Returns & Refunds page.

If you purchase a Product from a third-party seller, your purchase will be governed by the terms and policies of that third party. We do not accept returns or issue refunds for such Products.

Third-Party Services and Accessories You acknowledge that unless we specifically provide otherwise, our Products do not come with a cellular data, wireless service, or Internet connectivity plan. You are solely responsible for obtaining access to the phone network or Internet through a provider whose service is compatible with our Product. Check with your wireless carrier for compatibility and mobile data plan availability. You are also responsible for your wireless service agreement and for fees associated with your wireless account. EP is not a wireless carrier, and returning your Product to us will not cancel or reset your wireless service account. Contact your wireless service provider for more information.

You further understand that our Products may only be compatible with certain hardware accessories manufactured by third parties. We make no warranty with respect to such third-party accessories or their compatibility with our Products.

Some Products use the Android™ operating system. In order to make use of any enhanced functionality of your Product, you may have to sign in to your Google account or open a Google account if you do not yet have one.

No Resale We offer and sell Products to end users only, and we reserve the right to refuse or cancel an order if we suspect or determine that you are purchasing Products for resale.

Import and Export Products are subject to import and export laws and regulations in the United States and elsewhere. Products must be purchased, sold, exported, re-exported, transferred, and used in compliance with these laws and regulations. These laws include restrictions on destinations, users, and end use.

Services with Recurring Fees We may offer subscription plans with recurring fees for our services (“Subscription Services”). For more information about these plans, please visit http://support.essential.com/.

When you purchase any of our Subscription Services, you authorize EP to charge you a monthly or annual subscription service fee depending on the billing cycle you choose (in addition to any applicable taxes). We automatically bill the payment method you provide. The first day of your billing cycle is tied to the date you activate your Subscription Services. In the event you later decide to purchase additional Subscription Services, your payment for the additional services will be prorated to the renewal date of your initial Subscription Service. The amount billed may change based on promotional offers, changes to your Subscription Services plan, or changes in applicable taxes. You authorize us to charge your payment method for any changes.

Cancellations and refunds are governed by our refund policy. For more information, please visit the Returns & Refunds page.

We may offer free trials of our Subscription Services for limited durations. If we offer a free trial, additional specific information may be provided at registration.

Limited Warranty The Limited Warranty for Products provided by EP is available on our Warranty Page. Please read the Limited Warranty before purchasing or using any Product.

Indemnification You agree to indemnify, defend (at EP’s request), and hold harmless EP and our affiliates, subsidiaries, 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) the purchase and sale of the Products or (b) these Terms of Sale or any other applicable terms, policies, warnings or instructions provided by us or a third party in relation to the Products.

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) will the EP Parties be liable to you or to any other person for any damages, costs, or liabilities arising from or related to the purchase and sale of any Product or these Terms of Sale or any other applicable terms, policies, warnings, or instructions provided by us or a third party in relation to the Products, 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. To the fullest extent allowed by applicable law, in no event will the aggregate liability of the EP Parties arising out of or relating to the purchase and sale of a Product exceed the amount you paid EP for such Product. The limitations of liability set forth in this section will not limit or exclude liability for personal injury or property damage directly and proximately caused by the Products you purchase from us or for our fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct.

Governing Law and Jurisdiction The United States Federal Arbitration Act, 9 U.S.C. § 1 et seq. (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 laws principles, will govern these Terms of Sale. 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.

Dispute Resolution and Arbitration 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.

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 the 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 in 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, these Terms of Sale, or the subject matter of these Terms of Sale, 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 of Sale affect interstate commerce and that the enforceability of this section 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 and Jurisdiction section 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 Dispute Resolution and 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 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 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 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 of Sale, 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 of Sale 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 of Sale, 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 of Sale (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 purchase of your 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 purchased; (c) the Product model name or model number; 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 purchase. 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 arbitration section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms of Sale; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the 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 section will be enforceable.

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.

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