147
B.
In all other cases, including if you are a resident of the United States (and its possessions and territories) or
Canada, you agree that this EULA shall be governed by the laws of the State of California without regard to
any conflict of laws principles that may provide the
application
of the law of another jurisdiction; and:
1.
You and Roku agree to be bound by the procedures set forth below to resolve any and all claims
between you and Roku arising out of or relating to any aspect of this EULA, whether based in contract,
tort, statute, fraud, misrepresentation or any other legal theory, including but not limited to, claims
between you and Roku related to the Television and the Software. Each such claim is referred to
individually as “
Claim
” and collectively as “
Claims
”.
2.
You and Roku agree that, except for THE claims identified in paragraph 4 of this section below, any and all CLAIMS
BETWEEN YOU AND ROKU shall be finally settled by binding arbitration
. The arbitration shall take place in
Santa Clara County, California and shall be administered by the American Arbitration Association
(“AAA”) pursuant to the AAA’s then-current rules, including (if applicable) the AAA’s Supplementary
Procedures for Consumer-Related Disputes. Please be aware there is no judge or jury in arbitration.
Arbitration procedures are simpler and more limited than the rules applicable in court, and review of the
arbitrator’s decision by a court is limited.
YOU AND ROKU FURTHER AGREE THAT EACH OF YOU MAY
BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. The arbitrator may
not consolidate or join more than one person’s claim and may not preside over any consolidated, representative or
class proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only on an
individual basis and may not award any form of consolidated, representative or class-wide relief.
Notwithstanding
any provision in these terms to the contrary, if the class-action waiver in this provision is deemed invalid
or unenforceable, or if an arbitration is allowed to proceed on a class basis, then neither you nor Roku
are entitled to arbitrate the Claims. This arbitration provision is subject to the Federal Arbitration Act.
The arbitrator’s award shall be binding on you and Roku, and may be entered in any court of competent
jurisdiction.
3.
Information on AAA and how arbitration is initiated can be found at
www.adr.org
or by calling 800-778-
7879. For Claims between You and Roku of $75,000 or less, you will be responsible for the initial
arbitration filing fee, up to the amount of the initial filing fee if you were to initiate a lawsuit against Roku
based on such Claims in court. If the arbitrator finds such Claims to be non-frivolous, Roku will pay any
difference in such filing fees plus the arbitrator fees. For Claims between You and Roku in excess of
$75,000, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to
the costs of litigation, Roku will pay as much of your actual filing fees and the arbitrator fees for the
arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as
compared to the cost of litigation.
4.
This agreement to arbitrate does not apply to any Claim (a) in which a party is attempting to protect its
intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but
not including its privacy or publicity rights), or (b) that may be brought in small-claims court.
5.
If the agreement to arbitrate in this provision is found to be invalid, unenforceable or inapplicable to a
given Claim between You and Roku, then any and all proceedings to resolve such Claim must be
brought exclusively in a federal court of competent jurisdiction in the Northern District of California or in
a state court in Santa Clara County, California. You hereby irrevocably consent to the exclusive
jurisdiction and venue of such courts.
6.
30-Day Right to Opt Out:
You have the right to opt out of this agreement to arbitrate by sending a written
notice of your decision to opt out to the following address: Legal Department, Roku, Inc., 150
Winchester Circle, Los Gatos, CA 95032, USA; provided that, such notice must be postmarked on or
before the 30th day after the first to occur of the following events if you do not already have a Roku
Account: (a) the date of purchase of Your Television, or (b) the date you create your Roku Account. If
you have an existing Roku Account, all devices you choose to link to your Roku Account, and all services
provided by Roku which are accessed using these devices, will be subject to this agreement to arbitrate.
Your notice should include your full name, your current postal address, telephone number and email
address, the product name and serial number for Your Television, and a copy of the original proof of
purchase for your Television. If you timely send a notice in compliance with this paragraph 6, the
agreement to arbitrate will not apply to either you or Roku. If you do not timely send this notice, then
you agree to be bound by this agreement to arbitrate.
7.
Notwithstanding any provision in this Agreement to the contrary, you agree that, if Roku seeks to delete
or materially modify the agreement to arbitrate described herein, any such deletion or modification will
not apply to any individual Claim of which you have notified Roku prior to such modification.
Miscellaneous
Roku may transfer its rights and obligations under this EULA to another organization. You may only transfer your
rights or your obligations under this EULA to another person if Roku agrees in writing. This EULA is between you and
Roku. No other person shall have any rights to enforce these terms. Each of the paragraphs of this EULA operates
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