NZXT TERMS OF SERVICE
Effective Date May 24rd, 2018
Welcome to NZXT. These Terms of Service (“Terms”) are a legal agreement between NZXT Inc. and its related companies (the (“NZXT”, “Company”, “we” “our”, “us”) and you.
The Terms govern your access to and use of the websites, www.nzxt.com, https://nzxt.com/software/app, and all software (including installers and drivers downloaded in connection therewith), mobile applications and services provided by NZXT (collectively “Services”).
Purchases of hardware products from our Store are subject to separate terms, including our limited warranty at https://www.nzxt.com/legal/nzxt-warranty (“Warranty”) and return policy at https://www.nzxt.com/legal/nzxt-returns-and-exchange (“Returns”).
PLEASE READ THE TERMS CAREFULLY BEFORE INSTALLING ANY OF OUR SOFTWARE OR USING ANY OF OUR SERVICES. BY ACCESSING ANY OF OUR SERVICES YOU AGREE TO ALL OUR TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS, DO NOT ACCESS OR USE ANY OF OUR SERVICES.
You must be 13 years of age or older to access or use any of our Services. We can change these Terms at any time. If a change is material, we will notify you before it takes effect (“Effective Date”). Read Section 7 below for details.
IMPORTANT NOTICE: UNLESS YOU CHOOSE TO OPT OUT AS PROVIDED FOR IN SECTION 13, THESE TERMS INCLUDE AN AGREEMENT TO BINDING ARBITRATION OF CERTAIN DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. READ SECTION 13 BELOW CAREFULLY.
1.1.1 Table of Contents
I. Eligibility, Supervision, & Services "AS IS"
II. License and Rights to use the Services
III. User Accounts, Fees and Features
IV. Conditions of Use
V. Content Licenses and Ownership
VI. Third-Party Services
IX. Term and Termination
X. Risks & Disclaimer of Warranty
XI. Fees, Costs, Taxes, Equipment, Software
XIII. Dispute Resolution
XIV. Miscellaneous Provisions
1. Eligibility, Supervision, and Services "As Is"
1.1. Eligibility & Authorization. The Services are authorized for adults only and teenagers 13 and older under supervision of a parent or guardian as follows. If you are aged between the age 13 and 18 (or the age of majority where you live), you and your parent or guardian must review and accept these Terms together. Parents and guardians are responsible for the acts of children under 18 years of age when using the Services.
1.2. Services Offered "AS IS" Without Warranties or Representations. We strive to provide great Services, but there are certain things that we can't guarantee. For this reason, you acknowledge that all our Services, including our CAM software and service for gamers to monitor hardware performance (See Section 3 below) are available on an AS IS basis without representations or warranties of any kind. Please read Section 10 below to understand all these disclaimers and your agreement to use all the Services at your own risk.
2. Licenses and Rights to Use the Services
2.1. Grant. The Services, including but not limited to all software contained therein, are licensed to you, not sold. (For hardware purchases from our Store, please read Section 4.2 below and refer to our separate terms, including our limited warranty at nzxt.com/page/warranty (“Warranty”) and return policy at nzxt.com/returns-and-exchanges (“Returns”). With respect to all Services, NZXT grants you a personal, limited, non-transferable, non-sublicensable, revocable and nonexclusive license to use and access the Services, including any software, for personal, non-commercial use and subject to your compliance with the Terms. You may not sublicense, rent, lease, transfer or otherwise distribute the Services or any sub portion thereof.
2.2. Limitations. Your right to use the Services is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Services or any component thereof. You are prohibited from making any copies of the Services or any component thereof available on a network where it could be used or downloaded by multiple users.
2.3. Reservations. We reserve all right, title and interest in the Services. The Company or its licensors own or reserve all rights, including all right, title and interest in the Services and associated intellectual property rights, including without limitation, the Services look and feel. This license confers no title or ownership in the Services, including the software, and should not be construed as a sale of any rights therein. Some parts of the Services are licensed under third party licenses. You may not adapt any portion of our Services or software code or visual design elements (including logos and trademarks) without our express written permission, unless otherwise provided by law.
2.4. Updates, Changes, and Support. We may change, terminate or restrict access to any aspect of the Services, at any time, without notice. Company shall have no obligation to provide any updates or upgrades to any Services, including any software. The Company reserves the right to refuse any user access to the Services without notice for any reason, including but not limited to a violation of the Terms. If you violate these Terms, the Company reserves the right to issue you a warning regarding the violation or immediately terminate or suspend any or all Accounts you have created using the Services. You agree that the Company need not provide you notice before terminating or suspending your Account(s), but it may do so.
2.5. Confidentiality. You acknowledge that the Services, including but not limited to any software contained therein, contain valuable trade secrets and proprietary information owned by NZXT. You agree not to disclose such trade secrets and to take reasonable measures to safeguard the confidentiality of our trade secrets.
2.6. Injunction. Because NZXT would be irreparably damaged if this section were not specifically enforced, you agree that we shall be entitled to appropriate equitable measures, without bond, other security or proof of damages, with respect to breaches hereof, in addition to such other remedies as we may otherwise have under applicable law.
3. User Accounts, Payment Features, and Other Charges
3.1. Registration. To access and use certain features of the Services, you will be required to register for an account. By creating an account, you agree to: (i) provide accurate, current and complete account information; (ii) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your account; (iii) promptly provide notice at email@example.com if you discover or otherwise suspect any security breaches related to the Services; and; (iv) abide by applicable user conduct rules, including username rules we post on our Services.
3.2. Payment Features and Charges. We may accept various forms of payment, including credit and debit cards, and payments made through PayPal. Additional terms with your payment provider may apply. Prices are subject to change without notice. We reserve the right to refuse or cancel orders at any time and in our sole discretion. YOU ARE SOLELY RESPONSIBLE FOR ANY FEES, COSTS, TAXES, EQUIPMENT, AND SOFTWARE THAT YOU MAY INCUR IN CONNECTION WITH YOUR ACCOUNT OR USE OF THE SERVICES. Read carefully Section 11 below for additional details.
4. Conditions of Use and Commerce
4.1. Conditions of Use. These conditions of use are not meant to be exhaustive, and we reserve the right to determine in our sole discretion what conduct we consider to be an improper use of the Services and a violation of these Terms. Without limiting the generality of the foregoing, when you access or use the Services, you agree that you will not:
- Violate any applicable law or regulation;
- Access or tamper with non-public areas of the Services, our computer systems, or the systems of our technical providers;
- Access or search the Services by any means other than the currently available published interfaces (e.g., APIs) that we provide;
- Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send deceptive or false, source-identifying information;
- Use any robot, spider, crawler, scraper or other automated device, means, or process not provided or authorized to access the Services, copy material, or extract data. (Crawling the Services is allowed if done in accordance with the provisions of our robots.txt file.);
- Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services or third parties;
- Interfere with or disrupt another user’s access to or use of the Services;
- Contribute user-generated content or “UGC”, as described in Section 5.1 below and including screen names and personas;, or organize or participate in any activity that is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invades another's privacy, or is otherwise objectionable in our sole discretion;
- Publish, post, upload or distribute UGC without appropriate permission or legal authorization;
- Post a message for any purpose other than personal communication. Prohibited messages include advertising, spam, chain letters, pyramid schemes and other types of solicitation or commercial activities;
- Impersonate another person or falsely imply that you are our employee or representative of the Company or our partner;
- Improperly use support or complaint buttons or make false reports to our staff;
- Attempt to obtain, or phish for, a password, account information, or other private information from anyone else on the Services;
- Modify any file or any other part of the Services without prior, express authorization from Company;
- Use exploits, cheats, undocumented features, design errors or problems in the Services.
- Attempt to use the Services on or through any service that is not controlled or authorized by Company;
- Sell, buy, trade, or otherwise transfer your authorized Account, any personal access to the Services, or any Content associated with the Services, unless expressly authorized by Company;
- Use the Services in a country in which Company is prohibited from offering under applicable export control laws; and/or
- Promote, encourage or take part in any prohibited activity, described above.
4.2. Commerce. The Services, including our website store at store.nzxt.com (the "Store"), contains an online e-commerce store for hardware sales. NZXT also may use third-party service providers to operate the Store and/or process payments. In such cases, the third-party service provider service terms and privacy policies govern your use of the Store and online purchases. NZXT strives to make the descriptions of its products and services as accurate as possible, but NZXT does not warrant that any such descriptions are complete, accurate, up-to-date, or error-free. If you purchase an NZXT product and you believe it is not as described on the Sites, your sole remedy is to return the product in accordance with NZXT’s return policy, which is incorporated as part of these Terms and is found at nzxt.com/returns-and-exchanges. Products purchased on the Store carry NZXT’s standard limited warranty, found at nzxt.com/page/warranty.
5. Content & Copyright Complaints
5.2. Limited Screening of UGC. Company reserves the right to delete UGC but does not assume any responsibility or liability for UGC. This also means the Company does not pre-screen all UGC and does not endorse or approve any UGC available on the Services. We may also use UGC to promote our Services, including its products and content.
5.3. User Content Responsibilities. You are also responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. By posting content to the Services, you are representing that you have the right to do so. We can remove any content you post for any reason.
5.5. Copyright Complaints & DMCA. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we remove material after receiving a valid DMCA compliant takedown notice. Under our DMCA Policy, we will terminate, in appropriate circumstances and in our sole discretion, accounts of users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that anything on or available through the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
firstname.lastname@example.org or NZXT Inc., Attention: Legal, 13164 E. Temple Ave., City of Industry, CA 91746. Please see the legal requirements of a proper notification under DMCA, 17 U.S.C. §512(c)(3), available at here and at the following address http://www.copyright.gov/title17/92chap5.html#512.
If you knowingly misrepresent in your notification that the material or activity is infringing or violating any existing trademarks, copyrights, patents, or other legal rights, you will be liable for any damages, including costs and attorney fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
6. **Third-Parties **
Elements or components of the Services may be delivered via servers and technology not owned or controlled by Company. Company does not control those services and is not responsible for your use of the Services on or through them. These third party services may subject you to additional or different terms and restrictions. Our Services contain links to websites and services provided by independent companies. Those sites may collect data or solicit personal information from you. Company does not control those sites and is not responsible for their content or for their collection, use or disclosure of personal information.
7. Changes to these Terms
Company reserves the right to make change to these Terms at any time. If a change is material, we will notify you before the changes take effect (“Effective Date”) by sending you an email notification (at the address you’ve provided), posting a notice on or through the Services, and/or providing a new Effective Date above. By using the Services on or after the Effective Date, you agree to the new Terms. If you don’t accept the new Terms, you should delete your account before they take effect; otherwise, your use of the Services will be subject to the new Terms.
In accordance with provisions in the Terms requiring that Company give notice to you, Company will do so by means of a general notice on this page of our website or email to your email address on record in your account (if you have created an account) at Company’ discretion. If you are required under the Terms to give notice to Company, you can do so by means of email to: email@example.com or by first-class mail, postage prepaid, or overnight courier to NZXT Inc., Attention Legal, 13164 E. Temple Ave., City of Industry, CA 91746
9. Term and Termination
This Agreement is effective until terminated by you or Company in accordance with the notice provisions below. Company may terminate your access and use of the Services or your authorized account if Company determines that you have violated the Terms or that there has been otherwise unlawful, improper or fraudulent use of the Services associated. When practical, Company will notify you of the termination. Upon termination, your license under the Terms also shall terminate.
10. Risks & Disclaimer of Warranty
10.1. RISK & SPECIAL NOTICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE, IS AT YOUR SOLE RISK. COMPANY DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING YOU AGREE THAT YOU USE OR ACCESS ALL SOFTWARE AT YOUR OWN RISK AND WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR USER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM USE OF ANY SOFTWARE PROVIDED BY NZXT.
10.2. NO WARRANTY. NZXT PROVIDES THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE, ON AN AS IS AND AS AVAILABLE BASIS. THIS MEANS YOU USE ALL SOFTWARE AND SERVICES AT YOUR OWN RISK AND DISCRETION AND THE SOFTWARE AND SERVICES DON’T COME WITH ANY WARRANTY - NEITHER EXPRESS, NOR IMPLIED WARRANTIES OF ANY KIND, INCLUDING NO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY TITLE OR NON-INFRINGEMENT. ANY SUPPORT OR ASSISTANCE WITH RESPECT TO THE SERVICES OR SOFTWARE IS ALSO PROVIDED AS IS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
10.3. LIMITATION OF LIABILITY. WE WON’T BE LIABLE TO YOU FOR ANY DAMAGES THAT ARISE FROM YOUR USING THE SERVICES. THIS LIMITATION INCLUDES IF THE SERVICES ARE HACKED OR UNAVAILABLE AND IT INCLUDES ALL TYPES OF DAMAGES (INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY). THE LIMITATION ALSO INCLUDES ALL KINDS OF LEGAL CLAIMS, SUCH AS BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR ANY OTHER LOSS. SOME JURISDICTIONS MAY NOT ALLOW A LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES OR DISCLAIMERS. TO THE EXTENT THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, COMPANY’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT AND SOLE OBLIGATION WITH RESPECT TO DAMAGES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00).
10.4. NO RELIANCE AND DISCLAIMER MATERIALITY. NOTHING STATED BY ANY NZXT AGENT, AFFILIATE, SUPPLIER OR IN ANY OTHER DOCUMENTATION OR MATERIAL FOR ANY SOFTWARE OR SERVICES SHALL GRANT ANY WARRANTY PROTECTION BEYOND THE SCOPE OF THIS PARAGRAPH. You agree that all sections, clauses and elements contained in the Terms that limit liability and disclaim warranties are material and essential terms of the Terms and that NZXT would not grant you the rights granted in these Terms without your agreement to so limit liability and disclaim warranties.
11. Fees, Costs, Taxes, Equipment, Software
11.1 Fees and Costs. Your mobile network may charge your provider for data services or any other third party charges as may arise while using the Services and you accept responsibility for such charges. If you are not the bill payer, we will assume that you have received permission from the bill payer.
11.2 Taxes. If your purchase or use of the Services is subject to any type of use or sales tax, duty or other governmental tax or fee (“Taxes”), then we may charge you for those Taxes. Applicable Taxes may be presented at checkout. You are responsible for any Taxes due with respect to your use of the Services.
11.3 Equipment, Software and Updates. YOU ARE SOLELY RESPONSIBLE FOR ANY FEES, COSTS, TAXES, EQUIPMENT, AND SOFTWARE THAT YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE SERVICES. Certain equipment and software is required to access and use the Services. You must also provide at your own expense the equipment, software, Internet connections or devices and/or service plans to access and use the Services. In addition, we may need to automatically update some of the software you obtain through the Services or provide you with new software to keep the Services functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Services, you agree to such automatic updating.
You agree to defend, indemnify and hold harmless Company, and any of its directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys’ fees), arising from your breach of the Terms.
13. Dispute Resolution
13.1. Arbitration. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, Company may seek (and obtain) injunctive or other equitable relief in any court of competent jurisdiction. Without limiting or waiving any right or remedy to which Company or its assigns may be entitled under these Terms or applicable law, in the event of any actual or threatened breach of the Terms by you or on your behalf, Company would be irreparably damaged if these Terms were not specially enforced and, as such, you agree that Company shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of the Services. To the full extent permitted by law: (a) no arbitration shall be joined with any other; (b) there is no right or authority for any claim related to these Terms or the Services to be arbitrated on a class action basis or to utilize class action procedures; and (c) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
13.2. JURY WAIVER. THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
13.3. Right to Opt Out. You may opt out of this agreement to arbitrate. If you do so, neither you nor the Company can require the other to participate in an arbitration proceeding. You may opt out by emailing us at firstname.lastname@example.org or sending us written notification at NZXT Inc., Attention: Legal, 13164 E. Temple Ave., City of Industry, CA 91746. You must notify us by emailing or posting within 30 days of the date that you first became subject to this arbitration provision, and must your notification must include your name and residence address, the email address you use for your account (if you have one), and a clear statement that you want to opt out of this arbitration agreement. Your decision to opt out of arbitration will have no adverse effect on your relationship with us. Unless you choose to opt out, this dispute resolution provision in Section 13 shall survive termination of the Terms.
14. Miscellaneous Provisions
14.1. Entire Agreement. The Terms are the entire understanding and agreement between you and Company with respect to the Services, and supersedes any prior written or oral agreements between the parties.
14.2. Assignment. You may not assign these Terms or any of the rights granted hereunder without the prior written consent of Company, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
14.3. No Waiver. Any failure to exercise any right provided in the Terms shall not be a waiver of prior or subsequent rights.
14.4. Severability. If a court of competent jurisdiction finds any provision of these Terms invalid, you agree that the court should try to give effect to the parties’ intentions as reflected in the provision and that other provisions of the Terms will remain in full effect.
14.5. Governing Law. California law governs these Terms, without reference to its conflict of laws principles. You agree that any suit arising from the Services must take place in a court located in Los Angeles County California.
15. Contact. If you have any questions about these Terms, please direct all correspondence to email@example.com or NZXT Inc., Attention: Legal, 13164 E. Temple Ave., City of Industry, CA 91746.