NO WARRANTY FROM ROKU; Limitation of LIABILITY
YOUR warranty with respect to the Television is provided by THE
TELEVISION’S MANUFACTURER, and not by Roku. ROKU OFFERS
NO WARRANTY TO YOU UNDER THIS EULA. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING DISCLAIMER, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) THE SEPARATELY LICENSED CODE AND THE SOFTWARE
ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT
WARRANTY OF ANY KIND. ROKU DISCLAIMS ALL OTHER
WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED
WARRANTY OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. ROKU DOES NOT GUARANTEE,
REPRESENT, OR WARRANT THAT THE TELEVISION, THE
SEPARATELY LICENSED CODE AND THE SOFTWARE WILL
BE: (I) SECURE, VIRUS-FREE OR ERROR-FREE, OR (II) FREE
FROM ATTACK OR SECURITY INTRUSION.
(B) IN NO EVENT SHALL ROKU, ITS DIRECTORS, OFFICERS OR
EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR
PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES OF ANY KIND ARISING OUT OF ANY TELEVISION,
THE SEPARATELY LICENSED CODE, THE SOFTWARE, OR
YOUR USE THEREOF; AND
(C) YOU AGREE THAT (I) THE TOTAL CUMULATIVE LIABILITY OF
ROKU, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER
THIS EULA, INCLUDING LIABIILTY RELATING TO ALL
TELEVISIONS LINKED TO YOUR ROKU ACCOUNT, AND THE
SEPARATELY LICENSED CODE AND THE SOFTWARE IN
SUCH TELEVISIONS, AND YOUR USE THEREOF, SHALL NOT
EXCEED THE AMOUNT SET FORTH IN THE ROKU ACCOUNT
TERMS AND CONDITIONS YOU AGREED TO FOR YOUR ROKU
ACCOUNT, AND (II) ROKU, ITS DIRECTORS, OFFICERS AND
EMPLOYEES SHALL NOT BE LIABLE TO YOU UNDER THIS
EULA FOR ANY DIRECT DAMAGES ARISING OUT OF, OR IN
CONNECTION WITH THE TELEVISION. THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF THE REMEDY
PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND
EVEN IF ROKU, ITS DIRECTORS, OFFICERS OR EMPLOYEES
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF CERTAIN
WARRANTIES OR LIMITATOINS OF LIABILITY FOR CERTAIN TYPES
OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS IN THIS
SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF
USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS
THAT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER RIGHTS
THAT VARY FROM JURISDICTION TO JURISDICTION.
Export Controls
You agree not to download any Content or Software, nor otherwise
export or re-export any Television or the Software into (or to a
national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria
or any other country as to which the United States or your country
has embargoed goods, or to anyone on the U.S. Treasury
Department's List of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders or on similar
restricted lists published by your government from time to time.
By using any Television or the Software, you are representing and
warranting that you are not located in, under the control of, or a
national or resident of any such country or on any such list.
Choice of Law; Dispute Resolution
A.
If you are a consumer and a resident in any country in the
European Economic Area where the sale of the Television is
expressly authorized by its manufacturer, this EULA does not
apply to you.
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 (American Arbitration Association) 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
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