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
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
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