Terms of Service

Effective date: April 27, 2018

These Terms of Service (“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 contact us at legal@essential.com.

These Terms are a binding contract between you and Essential Products, Inc. and our subsidiaries (“EP,” “we,” or “us”). You must agree to and accept all of these Terms, or you do not have the right to access or use the Services; your using the Services means that you agree to all of 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, such as by updating the “Effective Date” date above and/or posting a notice on the Services. If you do not agree with the new version of these 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.

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.

Eligibility; Use Restrictions

You hereby affirm that you are over the age of thirteen (13), as the Services are not intended for anyone under 13. If you are under 13 years of age, then you may not use the Services. In addition, if you are between the ages of 13 and 18 (or between the ages of 13 and the age of legal majority under applicable law), you may only use the Services 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 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:

• 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, predatory, defamatory, obscene, or otherwise objectionable, including using or attempting to use another user’s account without authorization from that user and EP;

• Violates the security of any computer network, or cracks any passwords or security encryption codes;

• Interferes with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

• Develops or uses any third-party applications that interact with the Services without our prior written consent, including any scripts designed to scrape or extract data from the Services;

• Copies or stores any significant portion of the Content (as defined below);

• 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 Services; or

• Bypasses or ignores instructions contained in our robots.txt file, accessible at www.essential.com/robots.txt, that controls automated access to portions of the Services.

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.

Registration; Account Communication

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; Feedback; Prohibited User Conduct and Content

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, 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 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:

• 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 Services, 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 Services

Our Services may contain links or connections to third party websites, mobile applications or other online services (“Third Party Services”). When you access 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 has a relationship with the entity offering such Third-Party Services. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each Third-Party Service that you access or use.

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 Service or by any third party that you interact with through our Services. In addition, EP will not and cannot monitor, verify, censor, or edit the content of any Third-Party 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 Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on the Services 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 United States

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 Services 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 SERVICES 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 SERVICES 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. 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 affiliates, agents, partners, licensors, suppliers and assigns, 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, (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 exceed one hundred dollars ($100.00). The limitations of liability set forth in this section will not limit or exclude liability for our fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct.

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, 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 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.

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 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 federal or state courts, sitting 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 county 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 these Terms or the Services, 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 Dispute Resolution and Arbitration 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 be resolved only 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 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 Governing 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 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, 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, 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 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 conduct only 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 you first accepted these Terms and used the Services. 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 and (b) the date on which you first accepted these Terms and used the Services. 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 you first accepted these Terms and used the Services. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure.

Severability and Survival. If any portion of this Dispute Resolution and 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 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 Dispute Resolution and Arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect, and the remainder of this Dispute Resolution and Arbitration 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.

Governing Law. he 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 sitting in Santa Clara County, California for any claims arising out of a Dispute relating to these Terms.

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

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.