Effective date: 27 April 2018
These Product Terms of Use for users in Europe (“EEA”) Users (“Terms”) and any other terms referred to herein, such as our Terms of Service, Limited Warranty (United Kingdom, France), User Manual and Safety Guidelines, and Terms of Sale, are a legal agreement between you and Essential Products, Inc. and our subsidiaries and affiliates, VATNo. (“EP,” “we” or “us”) and they apply to your use of any EP-branded device (the “Product”). 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 our return policy.
Additionally, some residents of certain Member States may have additional terms and provisions that apply in addition to the remainder of these Terms (“Additional Provisions”). In the event of any conflict between the remainder of these Terms and the Additional Provisions, the Additional Provisions will supersede and prevail.
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.
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 of the Product. 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 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. For information about how to view data consumption and reduce the amount of cellular data you consume, please consult the User Manual and Safety Guidelines for your Product.
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.
We may collect, use, and share personal data in accordance with 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.
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 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.
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.
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, non-exclusive, non-sublicensable licence 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 licence granted herein applies to all Product Software, unless such Product Software is accompanied by a separate license, in which case the terms of that licence 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 licence 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 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.
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 licence with the Update, in which case the terms of that licence 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.
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.
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. You grant us a non-exclusive worldwide license to disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide for the promotion and improvement of our services or Products, without compensation to you. 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.
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.
You may have the ability to accept digital certificates issued by EP or others through the Product Software. 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.
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. Notwithstanding the foregoing, if you are a consumer residing in the EEA, please note that the above exclusions of warranties do not affect your statutory rights as further detailed in our Limited Warranty and below.
If you are a consumer who resides in the United Kingdom, you have legal rights as a consumer in respect of any Product Software that is not fit for purpose and of satisfactory quality. Nothing in these Terms, including the paragraph above, will affect such statutory consumer rights. Please consult your local Citizens Advice Bureau or Trading Standards Office for more information about your rights as a consumer under UK law.
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 authorised 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.
You are responsible to 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”) for any and 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) that the EP Parties suffer 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.
This section is applicable to the Product Software. The Product hardware is covered by EP’s Limited Warranty and Terms of Sale.
The limitations of liability set forth in this section are subject to contrary mandatory provisions of applicable law and will not limit or exclude liability for personal injury or property damage directly and proximately caused by the Product Software you purchase or receive from us or for our fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct.
EP is responsible for loss or damage you suffer that is a foreseeable result of its breach of these Terms or its negligence, but EP is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of EP’s breach or if it was contemplated by you and EP at the time these Terms between you and EP became binding. Notwithstanding the paragraph above, in no event will the aggregate liability of the EP Parties arising out of or relating to the Product Software or these Terms exceed one hundred Euro (€100.00).
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).
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.
EP may change, suspend, remove, or discontinue certain features or services associated with the Product, or any part of them, in our sole discretion. If we make changes to the Product, 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.
EP also reserves the right to change or modify these Terms 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.
These Terms and the licence 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 licence granted hereunder will terminate, and you must stop all use of the Product Software.
The laws of the State of California, without reference to its choice of laws principles, will govern these Terms. However, you will benefit from any mandatory provisions of the law of the member state in which you are a resident. Nothing in these Terms affects your rights as a European consumer to rely on mandatory provisions of the member state in which you are a resident.
With the exception of disputes in small claims court or in arbitration, the parties consent to 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. You are also allowed to bring legal proceedings in respect of these Terms in the courts of the European Union member state in which you are resident.
The European Commission also provides consumers with an online dispute settlement platform accessible at the following address: http://ec.europa.eu/consumers/odr/.
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.
You may email us or contact us at: Essential Products, Inc. 380 Portage Avenue Palo Alto, CA 94306 1-888-444-2222