NETGEAR Service Terms and Conditions
Please read these NETGEAR Service Terms and Conditions (“Terms and Conditions”) carefully. Your use of the Services (as defined below) indicates that You have read, accepted and agreed to these Terms and Conditions and constitutes Your consent to this Agreement.
These Terms and Conditions are between you (“You” or “User”) and NETGEAR, Inc. concerning your use of (including any access to) services provided by NETGEAR, Inc., its subsidiaries and affiliates (collectively, “NETGEAR”) in connection with NETGEAR devices, and the software (including software included in Your device at the time of purchase), firmware, documentation, and other information and materials provided on or in connection with such Services (individually and collectively, the “Services”). If Your device accesses the NETGEAR websites (regardless of Your payment or subscription status) You acknowledge and agree that You are a user of the Services and are bound by the provisions of these Terms and Conditions. These Terms and Conditions hereby incorporate by this reference any additional terms and conditions posted by Company through the Services, or otherwise made available to You by Company, including any Special Terms.
Your consent to these Terms and Conditions are required in order to use Your NETGEAR device. If you do not accept these Terms and Conditions, you must return any such NETGEAR device.
THESE TERMS AND CONDITIONS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION. TO THE EXTENT IT APPLIES, THIS PROVISION REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIAL OR CLASS ACTIONS.
1. ACCEPTANCE OF THE TERMS AND CONDITIONS
1.1 These Terms and Conditions may be accepted by clicking the “I accept” button if such button or function is available or present via the user interface for the respective Service. You also accept the Terms and Conditions when You access or start to use the Services or otherwise attempt to access the systems of NETGEAR with the NETGEAR devices.
1.2 By using the Services, You affirm that You are of legal age to enter into these Terms and Conditions. You may not use the Services if You are a: (a) person who is not of legal age or otherwise not entitled to form a binding contract with NETGEAR, or (b) person who is barred from receiving the Services under the laws of any country including the country in which You are a resident or from which You are using the Services.
1.3 If You are an individual accessing or using the Services on behalf of, or for the benefit of, any corporation, partnership or other entity with which You are associated (an “Organization”), then You are agreeing to these Terms and Conditions on behalf of Yourself and such Organization, and You represent and warrant that You have the legal authority to bind such Organization to these Terms and Conditions. References to “You” and “Your” in these Terms and Conditions will refer to both the individual using the Services and to any such Organization.
1.4 You may use the Services to locate, browse and download applications, data files, APIs, document, software, and other content or materials, some of which may be offered by NETGEAR and some of which may be made available by third parties that are not affiliated with NETGEAR (collectively, “Third Party Product”). You acknowledge and agree that additional policies, terms, conditions and licenses (“Special Terms”) may govern Your use of a particular Service or Third Party Product, in which case such Special Terms will supplement these Terms and Conditions with respect to Your use of such Service or Third Party Product. You agree to abide by such other Special Terms, including where applicable representing that You are of sufficient legal age to use such Service or Third Party Product. In the event of a conflict or inconsistency between these Terms and Conditions and any such Special Terms, the Special Terms will prevail with respect to Your use of that part or feature of the particular Service or Third Party Product giving rise to the conflict or inconsistency.
2. CHANGES TO THE TERMS AND CONDITIONS
2.1 NETGEAR may at its discretion modify, update, add to, discontinue, remove or otherwise change these Terms and Conditions at any time. Each such modification will take immediate effect upon notification to You. NETGEAR may provide You with notices, including those regarding changes to these Terms and Conditions, by email, regular mail, text message, postings or updates to the NETGEAR websites or other reasonable means now known or hereinafter developed.
2.2 In addition, any changes made to the provisions of these Terms and Conditions will be updated on the NETGEAR website. When NETGEAR amends these Terms and Conditions, we will revise the “last updated” date located at the top of these Terms and Conditions. We will place a notice shown when You enter the Service, by revising the link on the homepage to read substantially as “Updated Terms and Conditions” for a reasonable amount of time. Your continued use of the Service following any such notifications constitutes Your acceptance of such modifications and Your agreement to be bound by these Terms and Conditions. If You do not agree to any modification of these Terms and Conditions, Your sole remedy is to discontinue Your use of the Services and/or cancel Your use of the Services in accordance with Section 3.1 of these Terms and Conditions. The most current version of these Terms and Conditions will be available on the Website and supersedes previous versions.
3.1 Termination of Your Account by You. You may request termination of Your account and use of the Services at any time by communicating such request to NETGEAR as noted in the documentation for the Services. Any unused Services fees, including subscription fees, may not be refundable under this method of termination. Upon termination of Your account, certain information may not immediately be deleted from NETGEAR’s or its agents’ systems, including without limitation log entries, diagnostics, analytics coming from devices tied to the User; transaction details of the account; or information subject to search warrant, subpoenas, or other legal process.
3.2 Termination of Your Account by NETGEAR.
(a) NETGEAR may terminate Your account and these Terms for any reason if NETGEAR gives You at least thirty (30) days advance notice of such termination.
(b) Without limiting the generality of the foregoing, NETGEAR retains the absolute right to immediately disable and/or terminate Your Service at any time (without observing any notice period) if:
(i) You are in breach of any provision of these Terms and Conditions;
(ii) You have demonstrated (regardless of whether directly or through Your actions or statements or otherwise) that You do not intend to comply with these Terms and Conditions;
(iii) Your subscription charges are refused for any reason;
(iv) You misuse the Services;
(v) You alter Your system or use the Services or software in such a manner as to infringe upon the intellectual property rights of NETGEAR or any third party;
(vi) Any supplier or partner of NETGEAR providing the Services to or together with NETGEAR decide to terminate the provision of the Services or any parts thereof (either worldwide or in the country where You are a resident or from where You are Using the Services) or if any supplier or partner of NETGEAR decides to terminate the entire relationship with NETGEAR and regardless of the reason of such termination, including where any supplier or partner of NETGEAR are of the opinion that the provision of the Services or parts thereof to You or to NETGEAR or together with NETGEAR are no longer commercially feasible;
(vii) NETGEAR or any supplier or partner of NETGEAR providing the Services to or together with NETGEAR are required by applicable law to terminate the provision of the Services or parts thereof (for example if due to changes in applicable law or due to court rulings or judgments the Services or parts thereof become or are considered unlawful); or
(viii) Required by law.
(c) Upon any such termination of Your account by NETGEAR, You will remain obligated to pay all outstanding fees and charges relating to Your use of the Services before the effective date of such termination, and NETGEAR will give You a pro-rated refund of any of Your paid for, but unused, Services fees that will remain unused because of NETGEAR’s termination. Termination of the Services may result in the forfeiture and destruction of all information associated with Your membership, including “Content” (i.e., all content that is made available in the Services or accessible as part of or by the use of the Services (including audio and sound files, data files, images, music, photographs, software, videos and written text)).
3.3 Back-Ups. You are entirely responsible for backing up Your “User Content” (i.e., any information, materials, documents, media files or other content You upload, transmit, create, post, display or otherwise provide on or through the Services) stored with NETGEAR or through the Services to another location outside the Services (e.g., by means of creating local copies or backups with specialized online backup Services) to avoid loss of Your User Content and other data. If NETGEAR disables access to Your Service, You may be prevented from accessing the Services, Your related account details or any files, User Content or products that are stored with the Services. NETGEAR may in its sole discretion, however, allow You to backup Your User Content stored with NETGEAR through the use of the Services. You understand that NETGEAR may delete Your User Content after a reasonable backup period has lapsed (“Backup Grace Period”). Different Backup Grace Periods may apply depending on the specific Service and the efforts required to backup the particular User Content.
3.4 Survival. The following sections will survive any termination or expiration of these Terms and Conditions: Sections 4.2, 8, 9, 10, 11.4, 11.5, 14, 15, 16, 17, 18, 23, and 24.
4. PROVISION OF THE SERVICES AND LIMITATIONS ON USAGE
4.1 Services; License. The Services are provided to You by NETGEAR for Your personal, non-commercial use only and may not be resold, in whole or in part. Except as expressly provided in these Terms and Conditions, You may not transfer the Services or the right to receive them. Subject to Your compliance with these Terms and Conditions, NETGEAR grants You a personal, non-exclusive, non-transferable, limited license to enter and use software provided to you in connection with the Services for so long as the Service is offered for use with the device (subject to termination as set forth in this Section 3).
4.2 Limitations on Use. Unless otherwise specified in these Terms and Conditions or any applicable Special Terms, in connection with Your use of the Services, You will:
(a) Not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any of the Services or parts thereof, use of the Services or access to the Services;
(b) Not remove any proprietary notice language corresponding to the Services;
(c) Make no modifications to any such Services, except where such rights cannot be excluded under applicable law;
(d) Not attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services or to any NETGEAR server, or to any of the Services offered on or through the Services, by hacking or any other illegitimate means;
(e) Not to use the Services to: (i) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another’s privacy or harms minors in any way; (ii) impersonate any person or entity; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; (iv) upload, post, email, transmit or otherwise make available any Content that You do not have a right to make available under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (vi) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail, “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose; (vii) interfere with or disrupt the Services or servers, networks or other equipment connected to the Services (including without limitation denial-of-Service attacks) or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (viii) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ and any regulations having the force of law; and (ix) “stalk” or otherwise harass another person;
(f) Comply with and follow instructions made available to You by NETGEAR in connection with the Services;
(g) At all times observe these Terms and Conditions and any applicable law or regulation in the relevant jurisdictions including the jurisdiction where You are a resident or from where You are using the Services.
4.3 Changes to Services. To the extent possible under the governing law, NETGEAR may at any time and in its sole discretion without prior warning or notice:
(a) change, add, or remove features and functionality of the Services or suspend and/or cease providing the Services or any part of the Services. If You are dissatisfied with any material changes to the Services during a subscription, You may immediately terminate Your use of the Services and be entitled to a pro-rated refund of any of Your paid for, but unused, subscription. NETGEAR is under no obligation to provide any or all features and functionality to Your Services and may, at its discretion, discontinue the provision of Software Updates to certain Services;
(b) disable or suspend Your use of the Services including access to Your account(s) and any files or other content contained in Your account(s) either temporarily or permanently (in accordance with Section 3);
(c) set a limit on the number of transmissions You may send or receive through the Services or on the amount of storage space used for the provision of the Services or any part of the Services to You; and
(d) pre-screen, review, flag, filter, modify, refuse, reject, block access to or remove any or all Content from the Services.
4.4 Access to Services. You are not permitted to use any of the Services (including any attempts to do so) other than through the interface made available to You by NETGEAR and You will not use the Services (including any attempts to do so) through any automated tools (including software and/or hardware), functions, Services or otherwise (including scripts or web crawlers).
You may access and use the Services only with a system that is authorized to communicate with the NETGEAR websites. You agree not to tamper with or otherwise modify the Services.
6. SOFTWARE, SOFTWARE UPDATES, AND UPDATES TO THE SERVICES
6.1 Software Updates. Services originating from NETGEAR may communicate with NETGEAR servers from time to time to check for available updates, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Software Updates”). Such Software Updates may be in various forms and are generally provided for the purposes of improving the performance, security and reliability of the Services or the applicable Third Party Product or the device used to access the Services.
6.2 Mandatory Updates. By using the Services, You agree to receive all software updates and upgrades that NETGEAR sends to the software included in the Services. You specifically agree Your NETGEAR device may: (i) communicate with NETGEAR servers from time to time to automatically check for available updates, such as bug fixes, critical system updates, patches, enhanced functions, upgrades, missing plug-ins and new versions and (ii) install the Software Updates. If You disable the automatic upgrade feature of the Services then certain functionality of the Services may be adversely impacted. Even if You disable the automatic upgrade feature of Your Services, NETGEAR may still implement updates for certain applications running on ETGEAR’s back-end services.
7. CONTENT PROVIDED IN THE SERVICES AND CONTENT RIGHTS
7.1 Content is entirely the responsibility of the originator of such Content. The Content may include, without limitation, advertisements, promotional material, sponsored elements or other material.
7.2 The Content may be protected by proprietary or intellectual property rights of third parties (such as partners, advertisers and sponsors or their agents who provide such Content to NETGEAR). You are not permitted to modify, rent, lease, loan, sell, distribute or create derivative works based on any Content (either in whole or in part) or to grant licenses in the Content.
8. USER CONTENT AND USER CONTENT LICENSE
8.1 By uploading, transmitting, creating, posting, displaying or otherwise providing any User Content, You hereby grant NETGEAR a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, sublicenseable and transferable license to (a) use, distribute, reproduce, modify, adapt, make derivative works of, publicly perform and publicly display such User Content on the Services to the full extent necessary to provide the Services, and (b) maintain a copy of the User Content (including all related intellectual property rights) for archival and legal purposes (“User Content License”).
8.2 The User Content License will include a right for NETGEAR to (a) perform steps necessary to process and prepare the User Content for use in the Services, including any modification and/or adaption required to provide the Services to Users and/or to transmit or distribute the User Content over public networks and in media, and (b) make available and sublicense the User Content to third parties for the use of the User Content in connection with the provision of the respective Services by these third parties. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use Your User Content through the Services, as solely permitted through the functionality of the Services and directed by You and under these Terms and Conditions.
8.3 NETGEAR does not claim ownership of the User Content You submit or make available for inclusion on the Services and You will retain any copyright and any other rights to any User Content provided by You on or through the Services. For clarity, the foregoing User Content License grants to NETGEAR do not affect Your ownership of or right to grant additional licenses to the material in Your User Content, unless otherwise agreed in writing.
8.4 Any protection and enforcement of any intellectual property rights which exist or pertain to the User Content are entirely Your responsibility and NETGEAR is not obliged to protect and enforce the User Content on Your behalf.
8.5 If You send or post certain specific submissions at our request (e.g., via message boards or in connection with contests) or if You send us suggestions, ideas, notes, photographs, drawings, concepts, comments, improvements, recommendations, other feedback relating to improving the devices or Services, or any other information (each, a “Submission” and collectively, the “Submissions”), the Submission will be treated as non-confidential in each instance. “Submissions” are separate and apart from User Content. None of the Submissions will be subject to any obligation of confidence on the part of NETGEAR, and NETGEAR will not be liable for any use or disclosure of any Submissions. Any Submission may be used by NETGEAR without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and You hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of Your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. NETGEAR will have and is irrevocably granted the right, but not the obligation, to use and otherwise exploit the Submission in any manner for any purpose, including but not limited to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, or distribute the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according You any compensation or credit. By submitting a Submission to any NETGEAR Service or NETGEAR, You represent that such Submission is original with You and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. Submissions will not be acknowledged or returned. You agree and understand that NETGEAR is not obligated to use any Submission You make to any NETGEAR Service or NETGEAR and You have no right to compel such use. You hereby acknowledge and agree that Your relationship with NETGEAR is not a confidential, fiduciary, or other special relationship, and that Your decision to submit any material to NETGEAR does not place NETGEAR in a position that is any different from the position held by members of the general public with regard to Your Submission. You understand and acknowledge that NETGEAR has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by NETGEAR’s own employees. Many ideas or stories may be competitive with, similar or identical to Your Submission in theme, idea, plot, format or other respects. You acknowledge and agree that You will not be entitled to any compensation as a result of NETGEAR’s use of any such similar or identical material. Finally, You acknowledge that, with respect to any claim You may have relating to or arising out of a NETGEAR ‘s actual or alleged exploitation or use of any material You submit to any NETGEAR Service and/or NETGEAR, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle You to injunctive or other equitable relief or to in any way enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on the material, and Your rights and remedies in any such event will be strictly limited to the right to recover damages, if any, in an action at law.
8.6 NETGEAR may from time to time request that Users voluntarily donate their User Content for NETGEAR’s research and product development efforts (“Donated User Content”). If You choose to donate Your User Content then NETGEAR will make it clear that you are voluntarily doing so. For such Donated User Content, You grant NETGEAR a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, sublicenseable and transferable license to (a) view, use, distribute, reproduce, modify, adapt, make derivative works of, publicly perform and publicly display the Donated User Content (including all related intellectual property rights) to the full extent necessary to provide, improve, and modify NETGEAR products and services, and (b) maintain a copy of the Donated User Content for research, product improvement, product development, archival and legal purposes. You further agree that NETGEAR will have the right to alter, modify or combine the Donated User Content with other works, and hereby waive any claim to ownership of any derivative works of Donated User Content or that any derivative works of the Donated User Content constitutes a violation of any "moral rights" or a distortion, mutilation or disparagement or contains unauthorized variations of Donated User Content. You further represent, warrant and covenant that: (a) You are the sole owner, assignee and holder of record title to the Donated User Content AND (ii) you have full power and authority to make the present license to the Donated User Content.
9. NETGEAR SERVICES LICENSE
(a) As between You and NETGEAR, NETGEAR owns all right, title and interest in and to the Services, including without limitation all applicable intellectual property rights or other proprietary rights in such Services and in the associated devices, regardless of whether registered/legally secured or not. Except for the rights expressly granted to You in these Terms and Conditions and any Special Terms, NETGEAR retains all rights in or pertaining to the Services.
(b) You may need to use certain software programs in Your device to use or have full access to certain features of the Services. You are required to accept and use the software included in the device at the time of purchase and other software programs that may be delivered to Your device by NETGEAR from time to time. NETGEAR and its licensors own all right, title, and interest to such software and intellectual property rights in such software. NETGEAR also retains ownership of all NETGEAR copyrights and trademarks (including the NETGEAR Brands). In the case of third party software delivered by NETGEAR to the Services, the applicable third party retains title to and ownership of its software, copyrights and trademarks.
9.2 License Restrictions. Without limiting Section 4, You are not permitted to:
(a) grant any other user or third party a license to use the Services or otherwise to access Your account or the Services;
(b) use the Services to provide Services to other users or any other third parties;
(c) otherwise assign, grant a sublicense in, or grant a security interest in or over Your account and/or the Services or any rights under it, loan or lease the Your account and/or the Services, or otherwise transfer the Your account and/or the Services or any rights under it to any third party; or
(d) copy, edit, modify, alter or create a derivative work of, reverse engineer, disassemble, decompile, create derivative works of, or otherwise attempt to extract the source code of Services (or any part of it), unless expressly permitted by NETGEAR in writing, or to the extent permitted under the laws applicable to You, and You will not permit or grant a license to any third party to do so.
9.3 Open Source Software. Certain components of the software for the Services are subject to the GNU General Public License (“GPL”) or other so-called open source licenses (“Open Source Software”). Open Source Software may not be subject to the restrictions in Section 9 of these Terms and Conditions. You are free to use, modify and distribute Open Source Software that is subject to the GPL or other free or open source software licensing model in the Software’s Documentation. so long as You comply with the terms of the GPL (available at www.gnu.org/copyleft/gpl.html) or such other free or open source software licensing terms. For clarification, these Terms and Conditions do not limit Your rights under, or grant You rights that supersede, the license terms of any applicable Open Source Software.
10.1 You are not entitled to use any of NETGEAR’s trade names, trademarks, Service marks, logos, domain names, or other distinctive brand features (“NETGEAR Brands”) without NETGEAR’s prior written consent. To the extent that You are entitled to use the NETGEAR Brands under a separate written agreement with NETGEAR, such use is only permitted in accordance with such separate agreement.
10.2 You are not permitted to remove, obscure, conceal, modify or otherwise alter any proprietary rights notices, signs, trademarks, Service marks, trade names, logos or other marks of NETGEAR or any third party (including copyright and trade mark notices) which pertain to, are affixed to or which are contained within the Services and You agree not to use any such signs, trademarks, Service marks, trade names, logos or other marks of NETGEAR or any third party in a way that is intended to, likely to or foreseeable to mislead others or cause confusion about the owner, license holder or authorized user, as the case may be, of such marks, names or logos.
11. REGISTRATION AND ACCOUNT DATA
11.1 Registration. Certain Services or functionality offered on or through the Services may require You to register and open an account (including setting up a User ID and password, and the Registration Data (as described below) (collectively, “Account Data”)). To register, You may be asked to provide the following types of information without limitation (i) Your name, (ii) a system identification number (provided, for example, with certain NETGEAR hardware), if applicable, and (iii) an e-mail address (collectively “Registration Data”). You agree to provide and maintain accurate, complete and up-to-date Registration Data. NETGEAR may terminate Your account if You provide NETGEAR with inaccurate or incomplete information. You agree that NETGEAR may store and use the Account Data You provide for use in maintaining and billing fees to Your account.
(a) NETGEAR may implement an integrated registration solution through a single sign on process (“SingleSignOn”). SingleSignOn means that once You open an account with NETGEAR You may use Your User account and User ID for other Services of NETGEAR which eliminates the need to maintain separate User accounts and User ID’s for each individual Service. SingleSignOn may also allow You to sign in and sign off from Services and through different devices at once.
(b) The SingleSignOn may offer You the possibility to connect Your Services with Your account from third party social media sites, such as Facebook, Twitter, and Google+ with the SingleSignOn through an application programming interface (API) or other software. By allowing the SingleSignOn to connect with Your accounts on such third party sites, You consent to our accessing the information in those accounts, which information may include personally identifiable information. Additionally, You understand that by accessing the SingleSignOn via Your social media or other third party account, activity You engage in through the SingleSignOn may be published on the third party site. It is Your choice whether to use any such third party sites. We recommend You review the privacy policies of each third party site before You allow the SingleSignOn to connect with Your accounts on such third party sites or share pages or information with Your friends through those sites.
(c) You agree that You do not own Your SingleSignOn username. NETGEAR may reclaim or use Your SingleSignOn username.
11.3 Protection of Account Data.
(a) You are entirely responsible for maintaining the confidentiality of Your Account Data, and for the activity that occurs under Your account. You agree to promptly notify NETGEAR about any unauthorized use of Your account or Account Data. You will notify NETGEAR immediately upon becoming aware of any unauthorized use of any of Your Account Data or any other breach of security.
(b) You will keep Your Account Data safe and secure and prevent unauthorized access to Your Account Data and Your account by third parties, in particular by: (i) avoiding obvious User IDs or passwords, (ii) by changing Your password regularly, (iii) by ensuring that You do not disclose Your password(s) or grant any other user or third party access to Your Account Data or Services, and (iv) by ensuring that You exit from Your account at the end of each session.
(c) NETGEAR may regard any instructions to be from You if they are received from or issued by a user or third party using or providing Your Account Data.
(d) You agree not to use any Account Data or Services of any other user or person than Yourself without permission of the user or person holding the respective Service.
(e) You can access and change Your Account Data at any time by accessing the respective NETGEAR Service.
11.4 Data Analytics. You agree that NETGEAR may collect and use technical data and related information, including but not limited to technical information about Your mobile device, NETGEAR product, Third Party Product, and Service, such as such as log entries, diagnostics, bandwidth usage, WiFi usage, performance information, and various other analytics coming from devices tied to You or the User. This data and related information is gathered to facilitate the provision of Services and NETGEAR product support. NETGEAR may use this information to improve the Services and its products or to provide additional Services or technologies to You, but will not disclose Your Account Data to third parties for their independent marketing or promotional purposes unless You give consent. Without your consent, NETGEAR does not use the collected technical data and related information to market products or services to you or to track or collect the websites you visit or collect the content of any traffic on your network. You have the right to update Your Account Data at any time. Such changes can be made by logging into Your account. Certain features of the Services may not be available if You restrict the collection, storage, or use of Your Account Data.
11.5 Data Connections. Some Services may require the use of a broadband Internet connection or a mobile data connection. You are responsible for any Service charges for Your internet connection or data plan incurred as a result of using or accessing the Services. You should be aware that Your network provider may charge You for access to its network, the duration of Your mobile phone’s/ mobile device’s connection to the network and the data volume used to use the Services or products. You are entirely responsible to check with Your network provider whether any such costs may apply before using the Services or products in this respect. You acknowledge and agree that You will be solely responsible for all disputes with any Internet Service or cell phone provider relating to same. In particular, streaming and viewing recorded videos and the use of the NETGEAR mobile software applications may incur extra and substantial charges on devices that use a data plan. NETGEAR is not responsible for and does not make any assurances about the availability, functionality, or cost of any broadband internet connection or other data plan.
12.1 Payment Processing Methods. NETGEAR may make available to You various payment processing methods to facilitate the purchase of products through the Services. You will be informed of such payment processing methods, at the latest, at the start of the ordering process. You agree to abide by any relevant Terms of Service or other legal agreement, whether with NETGEAR or a third party, that governs Your use of a given payment processing method. You agree that NETGEAR may add or remove payment processing methods at its sole discretion and without notice to You.
12.2 Payment. You agree that You will pay for products You purchase through the Services, and that NETGEAR may charge Your credit card or other payment processing account (as chosen by You) for any purchases through the Services. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING NETGEAR WITH A VALID CREDIT CARD OR OTHER PAYMENT PROCESSING ACCOUNT DETAILS FOR PAYMENT OF ALL FEES. Fees will be billed to the credit card or payment processing account You designate during the registration process. If You want to designate a different payment processing account or if there is a change in Your credit card other payment processing account status, You must change Your information online, which may temporarily disrupt Your access to the Services while NETGEAR verifies Your new payment information.
(a) Some Services require an ongoing subscription. You agree to pay Your subscription fee in advance. Your subscription period is stated in Your subscription plan. Your subscription fee will cover the Services covered in Your subscription plan. You may have a choice of subscription payment options and may change Your selected payment option by notifying NETGEAR in accordance with the subscription plan. If for any reason You need to reactivate a terminated subscription You may be charged a reactivation fee. If You register for the Services under a promotional subscription fee, some additional restrictions may apply. Whatever Your subscription payment option, Your subscription fee does not include any Services, features or functionality other than the Services as defined in the plan You choose. NETGEAR may offer multiple subscription plans with varying levels and Services.
(b) To sign up for a subscription option with recurring payments, You must complete the required registration details online, select Your method of payment, check the box to “Automatically Renew my Service Plan,” and click “Continue.” You will receive an e-mail confirmation of Your auto renewal once You complete the initial payment process. If You choose a subscription option with recurring payments (i.e. the monthly and annual subscriptions) You agree that NETGEAR may automatically charge the subscription fee to the credit or charge card provided and associated with Your account at the beginning of each period at the frequency You have selected unless and until You cancel the subscription option by unchecking the auto-renewal option in Your account settings or canceling Your Services. You must cancel prior to the subscription fee being charged to the credit or charge card. If You signed up at a promotional rate any renewals past the promotional period will be charged at the then effective subscription fee. Access to Your Services will not be established until NETGEAR or its agent has verified that the credit card information is valid, accurate and that Your credit card account is in good standing. You will receive an e-mail reminder of Your auto renewal prior to any applicable renewal. You will also receive a reminder email a day before Your date of renewal reminding You that Your subscription option will be renewed for an additional period.
12.4 Fee Adjustments.
(a) Prices for products offered via the Services may change at any time, and the Services do not provide price protection or refunds in the event of a price reduction or promotional offering.
(b) To the extent possible under the governing law, NETGEAR may change the Services fees or charge additional fees for features and functionalities that are not a part of the Services. Such fee changes and additional charges will generally not take place until the renewal date for Your subscription, and if You are dissatisfied with the fee changes or additional charges, You may terminate Your use of the Services because of the implementation of such fee changes or additional charges and be entitled to a pro-rated refund of any of Your paid for, but unused, fees for using the Services. NETGEAR will notify You by an email to the email address on record for Your account in advance of any fee changes or new fees.
12.5 Late Payments. NETGEAR may suspend or terminate Your Services without notice upon rejection of any credit card charges or if Your card issuer (or its agent or affiliate) seeks the return of payments previously made to NETGEAR for Services. You agree NETGEAR may charge interest on all amounts due that remain unpaid for thirty (30) days or more. The monthly interest will equal up to one point five percent (1.5%) of the past due amount or the highest rate allowed by law, whichever is less, until the past due amount and interest is paid. Such rights are in addition to and not in lieu of any other legal rights or remedies available to NETGEAR. NETGEAR may refer Your account to a third party for collection in the event of ongoing default.
12.6 Availability of Third Party Products. If a Third Party Product becomes unavailable following a transaction but prior to download, Your sole and exclusive remedy is a refund. If technical problems prevent or unreasonably delay delivery of Your product, Your sole and exclusive remedy is either replacement or refund of the price paid, as determined by NETGEAR. Your right to claim damages in accordance with Section 18 as well as Your right to terminate Your Account remain unaffected.
13. NETGEAR PRODUCT-SPECIFIC TERMS
13.1 NETGEAR offers a number of products and Services. In addition to these Terms and Conditions, such products and Services may have additional or different terms and conditions. The specific terms and conditions of such products and Services, if different than, or in addition to, these Terms and Conditions are hereby incorporated by reference and shall prevail over any conflicting provisions in these Terms and Conditions.
13.2 Terms Applicable to our iOS App(s). In addition to Your agreement with these Terms and Conditions, the following provisions apply with respect to Your use of any version of a NETGEAR mobile software application (“App”) for iPhone compatible with the iOS operating system of Apple Inc. (“Apple”):
(a) Apple is not a party to these Terms and Conditions and does not own and is not responsible for any NETGEAR App. Apple is not providing any warranty for the NETGEAR App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support Services for the NETGEAR App and will not be responsible for any other claims, losses, liabilities, damages, costs, or expenses with respect to the NETGEAR App, including any third-party product liability claims, claims that the NETGEAR App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the NETGEAR App, including those pertaining to intellectual property rights, must be directed to NETGEAR in accordance with Section 24 (“Contact”).
(b) The license You have been granted in these Terms and Conditions is limited to a non-transferable license to use the NETGEAR App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by You, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, You must comply with the terms of any third-party agreement applicable to You when using the NETGEAR App, such as Your wireless data Service agreement.
(c) You represent and warrant that (1) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) You are not listed on any U.S. Government list of prohibited or restricted parties.
(d) Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms and Conditions and, upon Your acceptance of the terms and conditions of these Terms and Conditions, will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against You as a third-party beneficiary thereof; notwithstanding the foregoing, NETGEAR’s right to enter into, rescind or terminate any variation, waiver, or settlement under these Terms and Conditions is not subject to the consent of any third party.
14. PRIVACY AND PROTECTION OF PERSONAL DATA
14.2 Compliance with Data Protection Laws. Each party shall comply with its respective obligations under applicable data protection laws (“DPL”). You will not perform any act that puts NETGEAR in breach of its obligations, and nothing in this Agreement shall be deemed to prevent any party from taking action it reasonably deems necessary to comply with DPL. You agree that: (i) with respect to data You collect, access or otherwise use, You alone shall determine the purposes for which and the manner in which personal data is, or will be, processed; (ii) You are the data controller in respect of all personal data You may process; and (iii) You consent and, in the event You process any third party data, have obtained the consent from such third party, to send its personal data to NETGEAR. You warrant and undertake that any instructions given by You to NETGEAR will at all times be in accordance with the requirements of DPL. You expressly agree that NETGEAR may transfer personal data outside the European Economic Area without Your further consent in order to provide the Services. NETGEAR may comply with requests for information from legitimate judicial, legal or regulatory authorities or pursuant to a court order or a subpoena, discovery request or other lawful process that NETGEAR receives. NETGEAR may comply with these subpoenas or court orders with or without notice to You.
14.3 Children’s Online Privacy Protection Act (“COPPA”). You must be at least eighteen (18) years of age to sign up for the Services. NETGEAR’s Services do not knowingly collect or solicit personal information from anyone under the age of 18, and NETGEAR does not knowingly allow such persons to register for the Services. If You are under eighteen (18) years, do not attempt to register for the Services or send any information about Yourself to us without parental consent. No one under eighteen (18) years of age may provide any personal information to NETGEAR without parental consent. If NETGEAR learns that we have collected personal information from somebody under eighteen (18) years of age without verification of parental consent, we will delete such information. If You believe that we have any information from or about a child under eighteen (18) years of age, please contact us at legal@NETGEAR.com.
15. YOUR REPRESENTATIONS AND WARRANTIES
NONUSE OF NETGEAR DEVICES AND SERVICES IN CERTAIN SYSTEMS – YOU AGREE THAT YOU WILL NOT USE THE NETGEAR DEVICES AND SERVICES IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS OR ANY OTHER SUCH ACTIVITIES IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
USER CONTENT - YOU ARE ENTIRELY RESPONSIBLE FOR THE USER CONTENT PROVIDED BY YOU AND FOR ANY CONSEQUENCES ARISING IN CONNECTION WITH THAT USER CONTENT (INCLUDING ANY LOSS OR DAMAGE SUFFERED OR INCURRED BY NETGEAR, AS SET OUT IN SECTION 18 BELOW). IN PARTICULAR, YOU WARRANT AND REPRESENT TO NETGEAR THAT:
(a) YOU ARE THE OWNER OF ALL RIGHTS PERTAINING TO THE USER CONTENT OR OTHERWISE AUTHORIZED TO GRANT NETGEAR THE USER CONTENT LICENSE;
(b) THE USER CONTENT WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHTS OR CONTAIN ANY INSIDER INFORMATION;
(c) THE USER CONTENT WILL NOT CONTAIN ANY MATERIAL WHICH IS HARMFUL, INACCURATE, PORNOGRAPHIC, ABUSIVE, OBSCENE, THREATENING, DEFAMATORY, OR WHICH IS OTHERWISE ILLEGAL OR WHICH DOES NOT COMPLY WITH APPLICABLE LAW;
(d) THE USER CONTENT WILL NOT CONTAIN ANY VIRUSES OR OTHER HARMFUL SOFTWARE, CODE OR SIMILAR MEANS AND DEVICES WHICH COULD DAMAGE, HARM, DISABLE OR OTHERWISE IMPACT OR LIMIT THE FUNCTION AND PERFORMANCE OF THE SERVICES AND/OR ANY DEVICE ACCESSING SUCH USER CONTENT, REGARDLESS OF WHETHER THIS DEVICE BELONGS TO NETGEAR OR ANY OTHER USER OR THIRD PARTY INCLUDING SERVER, NETWORKS NODES OR ANY SIMILAR EQUIPMENT;
(e) THE USER CONTENT WILL COMPLY AND CONFORM TO ANY AGE CLASSIFICATION RULES AND REQUIREMENTS (INCLUDING ACCURATE AND ADEQUATE CLASSIFICATION AND RATING OF ANY USER CONTENT, AS THE CASE MAY BE) UNDER THE APPLICABLE LAWS, INCLUDING THE COUNTRY IN WHICH YOU ARE A RESIDENT OR FROM WHICH YOU ARE USING THE SERVICES;
(f) THE USE OF THE USER CONTENT BY NET NETGEAR GEAR WILL NOT IMPOSE ANY OBLIGATION UPON NETGEAR TO PAY ANY KIND OF MONETARY CONTRIBUTION (INCLUDING LICENSE FEES, DUES OR OTHERWISE) TO ANY THIRD PARTY (IN PARTICULAR COLLECTING SOCIETIES); AND
(g) YOU WILL NOT FALSELY REPRESENT YOURSELF BY IMPERSONATING OTHER PEOPLE.
15.2 INDEMNITY. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NETGEAR FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), INCLUDING BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, INVASION OF PRIVACY, COPYRIGHT INFRINGEMENT AND/OR TRADEMARK INFRINGEMENT AGAINST NETGEAR OR THE SERVICES, RELATING TO OR ARISING OUT OF YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, YOUR MISUSE OF THE SERVICES, OR YOUR UNAUTHORIZED MODIFICATION OR ALTERATION OF ANY NETGEAR PRODUCTS OR SOFTWARE.
16. NETGEAR’S REPRESENTATIONS AND WARRANTIES
16.1 TO THE EXTENT POSSIBLE UNDER GOVERNING LAW, (OTHER THAN A SPECIFIC LIMITED HARDWARE OR LIMITED WARRANTY PROVIDED BY NETGEAR) THE SERVICES (INCLUDING ANY DOCUMENTS OR MATERIAL, SOFTWARE AND FIRMWARE UPDATES DOWNLOADED, INSTALLED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES) ARE PROVIDED BY NETGEAR ON AN “AS IS” AN “AS AVAILABLE” BASIS AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. NETGEAR IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE PHONE OR MOBILE PHONE’S, SOFTWARE, COMPUTER SYSTEM OR OTHER DEVICE OR DEVICE’S SOFTWARE OR ANY LOSS OF DATA THAT IS CAUSED BY OR RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH DOCUMENTS AND/OR MATERIAL.
16.2 NETGEAR MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; NOR DOES NETGEAR MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES (INCLUDING THIRD PARTY CONTENT), THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED OR THAT THE SERVICES WILL BE COMPATIBLE WITH ANY OTHER SPECIFIC HARDWARE OR SERVICE. FURTHER, NETGEAR DOES NOT WARRANT THAT THE SERVICES OR THE NETGEAR SERVERS THAT PROVIDE YOU WITH DATA AND CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NETGEAR ALSO ASSUMES NO RESPONSIBILITY FOR AND SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY VIRUSES THAT MAY INFECT YOUR COMPUTER SOFTWARE OR OTHER HARDWARE.
16.3 TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, NETGEAR AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. NETGEAR HEREBY FURTHER EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY CLAIMS FOR SERVICE FAILURES THAT ARE DUE TO NORMAL PRODUCT WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION OR YOUR NON-COMPLIANCE WITH ANY AND ALL APPLICABLE FEDERAL, STATE OR LOCAL LAWS. THIS WARRANTY AND WARRANTY DISCLAIMER GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY BY STATE, PROVINCE, OR COUNTRY. OTHER THAN AS PERMITTED BY LAW, NETGEAR DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER RIGHTS YOU HAVE, INCLUDING THOSE THAT MAY ARISE FROM THE NONCONFORMITY OF A SALES CONTRACT. FOR A FULL UNDERSTANDING OF YOUR RIGHTS YOU SHOULD CONSULT THE LAWS OF YOUR STATE, PROVINCE, OR COUNTRY. [FOR OUR AUSTRALIAN CUSTOMERS: PLEASE NOTE THAT THIS WARRANTY IS IN ADDITION TO ANY STATUTORY RIGHTS IN AUSTRALIA IN RELATION TO YOUR GOODS WHICH, PURSUANT TO THE AUSTRALIAN CONSUMER LAW, CANNOT BE EXCLUDED.]
16.4 YOU AGREE THAT NETGEAR IS NOT AN INSURER AND THAT NETGEAR IS NOT PROVIDING YOU WITH INSURANCE OF ANY TYPE. ANY AMOUNTS THAT YOU PAY NETGEAR FOR THE SERVICES ARE NOT INSURANCE PREMIUMS AND ARE NOT RELATED TO THE VALUE OF YOUR PROPERTY, ANYONE ELSE’S PROPERTY LOCATED IN YOUR PREMISES, OR ANY RISK OF LOSS AT YOUR PREMISES. IF YOU WANT INSURANCE TO PROTECT AGAINST ANY RISK OF LOSS AT YOUR PREMISES, YOU WILL PURCHASE IT. IN THE EVENT OF ANY LOSS, DAMAGE OR INJURY, YOU WILL NOT LOOK TO NETGEAR TO COMPENSATE YOU OR ANYONE ELSE. YOU RELEASE AND WAIVE FOR YOURSELF AND YOUR INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST NETGEAR ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE OR INJURY.
16.5 NETGEAR’S DEVICES AND SERVICES DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF CERTAIN EVENTS, INCLUDING, BUT NOT LIMITED TO, FIRES, FLOODS, BURGLARIES, ROBBERIES AND MEDICAL PROBLEMS. NETGEAR MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE DEVICES AND SERVICES PROVIDED WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES. NETGEAR DOES NOT UNDERTAKE ANY RISK THAT YOU OR YOUR PROPERTY, OR THE PERSON OR PROPERTY OF OTHERS, MAY BE SUBJECT TO INJURY OR LOSS IF SUCH AN EVENT OCCURS. THE ALLOCATION OF SUCH RISK REMAINS WITH YOU, NOT NETGEAR.
17. YOUR LIABILITY
17.1 You are entirely responsible for any breach of Your obligations under:
(a) These Terms and Conditions; and
(b) Any applicable law or regulation in the relevant jurisdiction, including the jurisdiction where You are a resident or from where You are using the Services and for the consequences of any such breach, including any loss or damage which NETGEAR or any third party may incur or suffer.
NETGEAR will have no responsibility to You or to any third party with respect to the foregoing.
18. NETGEAR’S LIABILITY
18.1 SUBJECT TO SECTION 18.3, NETGEAR IS NOT LIABLE TO YOU, REGARDLESS OF THE LEGAL GROUNDS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGE OR LOSSES HAS BEEN NOTIFIED TO NETGEAR, FOR:
(a) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
(b) ANY LOSS OF INCOME, BUSINESS, ACTUAL OR ANTICIPATED PROFITS, OPPORTUNITY, GOODWILL OR REPUTATION (WHETHER DIRECT OR INDIRECT);
(c) ANY DAMAGE TO AND/OR CORRUPTION OR LOSS OF DATA (WHETHER DIRECT OR INDIRECT);
(d) ANY LOSS OR DAMAGE AS A RESULT OF:
(i) ANY BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY OTHER AGREEMENT OR CONTRACTUAL RELATIONSHIP BETWEEN NETGEAR AND YOU WHICH IS ATTRIBUTABLE TO NEGLIGENCE ON THE PART OF NETGEAR, AND ITS SUPPLIERS, PARTNERS AND/OR LICENSORS;
(ii) ANY RELIANCE PLACED BY YOU ON THE SUITABILITY, ACCURACY, COMPLETENESS, RELIABILITY OR EXISTENCE OF ANY (A) SERVICES (INCLUDING ANY SOFTWARE, INFORMATION, DOCUMENTS, MATERIALS MADE AVAILABLE TO YOU AS PART OR IN COURSE OF THE USAGE OF THE SERVICES) OR (B) ADVERTISING OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING (INCLUDING ANY PROMOTIONAL MATERIAL) IS MADE AVAILABLE ON OR BY YOUR USE OF THE SERVICES;
(iii) ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LOSS OF CONTENT, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES;
(iv) ANY CHANGES, MODIFICATIONS, EXTENSIONS OR LIMITATIONS (INCLUDING ANY SUSPENSION OF YOUR USE OF THE SERVICES, ACCESS TO YOUR ACCOUNT AND ACCOUNT DATA OR YOUR REGISTRATION DATA) TO THE SERVICES, OR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY PART OF THEM); OR
(v) THE USE OF YOUR ACCOUNT DATA BY ANY OTHER PERSON THAN YOURSELF (REGARDLESS OF WHETHER WITH OR WITHOUT YOUR KNOWLEDGE). YOU ARE FULLY RESPONSIBLE AND LIABLE TO COMPENSATE NETGEAR FOR ANY DAMAGE AND/OR LOSS INCURRED DUE TO THE USE OF YOUR ACCOUNT DATA BY SOMEONE ELSE.
18.2 IN THE EVENT THAT NETGEAR IS LIABLE FOR A BREACH OF THESE TERMS AND CONDITIONS, NETGEAR’S LIABILITY SHALL BE LIMITED TO ACTUAL DAMAGES WHICH NETGEAR MUST TYPICALLY EXPECT AT THE TIME OF THE CONCLUSION OF THIS AGREEMENT DUE TO THE CIRCUMSTANCES KNOWN AT THE TIME. MOREOVER, IF NETGEAR MISTAKENLY OR WRONGFULLY OVERCHARGES YOUR ACCOUNT, THIS SECTION DOES NOT LIMIT NETGEAR’S ABILITY TO REFUND SUCH MISTAKENLY OR WRONGFULLY OVERCHARGED AMOUNTS.
18.3 Nothing in these terms and conditions shall exclude or limit NETGEAR’S:
(a) Liability for death, personal injury resulting from NETGEAR’S negligence or in accordance with any product liability act; and
(b) Liability for damages or losses which may not be lawfully excluded or limited under applicable mandatory law. If the laws in the User’s jurisdiction do not allow the exclusion of certain warranties, terms or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages, only the limitations which are lawful in that jurisdiction will apply to the User and NETGEAR’S liability and warranty will be limited
19. FORCE MAJEURE
19.1 NETGEAR is not liable or responsible for any failure to perform, or delay in performance of any of NETGEAR’s obligations under these Terms and Conditions that is caused by events outside NETGEAR’s reasonable control (“Force Majeure Event”), in particular (without limitation) (a) unavailability of public or private telecommunication networks, (b) acts, decrees, legislation, regulations or restrictions of any government, or (c) strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attacks or threats of terrorist attacks, war (whether declared or not) or any natural disaster.
19.2 NETGEAR’s performance under these Terms and Conditions is deemed to be suspended for the period that Force Majeure Event continues, and NETGEAR will have an extension of time for performance for the duration of that period.
20. THIRD PARTY SITES AND OTHER CONTENT
20.1 The Services may contain hyperlinks to content resources and Services of third parties, including other websites and Third Party Content (“External Resources”). NETGEAR is not responsible for, does not endorse and has no control over the content (including advertisements, products and other materials) provided, made available and/or displayed to You under these External Resources and is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on such content (including any reliance by You on the availability, accuracy, applicability or completeness of the content) which is made available to You, provided to You or displayed to You under these External Resources.
20.2 The Services may give You the ability to access media content controlled by third parties (“Third Party Content”) over which NETGEAR exercises no editorial or programming control. You understand that: (i) Third Party Content providers may restrict or revoke access to their content at any time; (ii) to the extent possible under the governing law, NETGEAR is not responsible for and has no editorial control over any Third Party Content; and (iii) NETGEAR has no control over the distribution of Third Party Content. You agree that NETGEAR will have no liability to You or anyone else who uses Your system with regard to any Third Party Content. You also agree and declare that any and all Third Party Content accessed or transferred using the Services is for personal, non-commercial use and that the Services will not be used to illegally copy, illegally display or otherwise make illegal use of Third Party Content. Generally, authorization from the appropriate rights holder is needed prior to displaying, using, or copying Third Party Content. Unauthorized copying or distribution of copyrighted works may constitute an infringement of the copyright holders’ rights. You understand that by using the Services You are exposed to the risk that You may find some Content offensive, indecent or objectionable and that any use of the Services as regards such exposure is entirely at Your own risk.
20.3 You may from time to time and as a result of or through the use of the Services purchase or avail Yourself of Third Party Products, and other Services, goods or software which is provided to You by a third party. Your use of such Third Party Products, and other Services, goods or software may be subject to Special Terms and other separate terms and conditions between You and the respective third party. This Agreement does not affect Your legal relationship with that third party and NETGEAR is not liable or responsible for any Third Party Products, and other Services, goods or software provided to You by any third party.
20.4 When You use a third-party application, the application may ask for Your permission to access Your content and information in order for the application to work as intended. Your agreement with the provider of that application will control how the application can use, store, and transfer that content and information, so be sure to thoroughly read any such application’s terms of Service. Without limiting anything contained in these Terms and Conditions, You agree that NETGEAR will have no liability to You or anyone else with respect to Your agreement with the provider of that third-party application.
21. LANGUAGE OF THE TERMS AND CONDITIONS
The language of these Terms and Conditions is English. NETGEAR may provide You with a translation of the English version of these Terms and Conditions. This translation is provided for Your convenience only. In the event of any conflict between the English language version and the translation version of these Terms and Conditions, the English language version takes precedence over any translation version.
22. CLAIMS REGARDING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND OTHER RIGHTS
22.1 Claims. NETGEAR respects the intellectual property of others and we require our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement or Your intellectual property rights have been otherwise violated please provide NETGEAR with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property interest that You claim has been infringed;
(c) a description of where the material that You claim is infringing is located on the NETGEAR website;
(d) Your address, telephone number, and email address;
(e) a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
(f) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
Please mail this information to: Legal Department, NETGEAR, 350 E Plumeria Dr, San Jose, CA 95134.
(a) NETGEAR may respond to notices of alleged copyright infringement or violation of other laws in accordance with applicable law and may terminate, suspend or block access (either temporary or permanently) to accounts of users who repeatedly infringe copyright laws or violate other applicable law.
(b) NETGEAR may terminate the accounts of users of any NETGEAR Service or software who infringe the copyrights, trademarks, or intellectual property rights of others. In addition, steps intended to defeat or bypass security measures designed to prevent intellectual property infringement may be illegal under U.S. law or comparable foreign laws. NETGEAR may terminate the accounts of users who develop or use methods to defeat or bypass such security measures and may take any other necessary or appropriate action to prevent infringement of intellectual property holders’ rights.
23. GENERAL PROVISIONS
23.1 Entire Agreement. These Terms and Conditions constitute the entire agreement between You and NETGEAR and govern Your use of the Services superseding any prior agreements between You and NETGEAR with respect to the Services. You may also be subject to additional terms and conditions that may apply when You use or purchase certain other services, affiliate services, third-party content or third-party software. NETGEAR will rely only on these Terms and Conditions. Any representations, statements or agreements made or entered into elsewhere, whether directly or indirectly, written or oral or in advertising are not binding towards NETGEAR unless expressly confirmed in writing by NETGEAR to You.
23.2 Notice of Changes. NETGEAR may provide You with notices (including notices relating to changes to the Terms and Conditions or termination of the Services or parts thereof) by email, ordinary mail, or postings on or via the Services.
23.3 Waiver and Severability of Terms. The failure of NETGEAR to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and the other provisions of these Terms and Conditions remain in full force and effect.
23.4 Third Party Beneficiaries. Each of NETGEAR’s affiliates and subsidiaries is an intended third party beneficiary to the provisions of these Terms and Conditions which confer a benefit on (or rights in favor of) them. Such affiliates and subsidiaries will be entitled to directly enforce and rely upon any provision of these Terms and Conditions which confers a benefit on (or rights in favor of) them. Subject to the foregoing, [and except as set forth in Section 13.2 regarding the Apple Application], no other person will be a third party beneficiary to these Terms and Conditions.
23.5 Assignment. You are not permitted to transfer, assign or otherwise dispose of these Terms and Conditions which are personal to You, or any of Your rights or obligations arising under these Terms and Conditions without the prior written consent of NETGEAR. NETGEAR has the right to transfer, assign or otherwise dispose of these Terms and Conditions without Your consent.
23.6 Choice of Law and Forum.
(a) These Terms and the relationship between You and NETGEAR will be governed by the laws of the State of California without regard to its conflict of law provisions. This shall not limit the protection afforded to You by provisions that cannot be derogated from by agreement by virtue of applicable law. To the extent possible under Your local law, any dispute arising from or relating to the subject matter of this Agreement will be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who will be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND NETGEAR ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Notwithstanding the foregoing, NETGEAR will have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
23.7 No Right of Survivorship and Non-Transferability. You agree that Your Services are nontransferable and any rights to Your ID or contents within Your account terminate upon Your death. Upon receipt of a copy of a death certificate, Your Services and related accounts may be terminated and contents therein permanently deleted.
23.8 Interpretation. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect.
23.9 Export Laws. Recognizing the global nature of the internet, You agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, You agree to comply with all applicable laws regarding the transmission of data exported from the United States or from the country in which You reside. You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties. Without limiting the foregoing, You agree that You will not use the Services in countries that are designated under section 6(j) of the Export Administration Act.
The following NETGEAR entity is responsible for delivering the Services depending on where You are using the Services:
• The Americas: NETGEAR Inc.
• All Other International Territories (including but not limited to Europe, Middle East, Africa, Asia Pacific, Australia and New Zealand): NETGEAR International Limited.
Thus, if You have any questions, complaints, or claims with respect to the Services, You may contact us at the following addresses (as applicable):
350 East Plumeria Drive
San Jose, CA 95134
Corporate Office Phone: 408-907-8000
Corporate Office Fax: 408-907-8097
NETGEAR International Limited
First Floor Building 3 University Technology Centre Curraheen Road
Corporate Office Phone: 353 21 2333 200
Corporate Office Fax: 353 21 2333 299
© 2017 NETGEAR, Inc. All Rights Reserved.
Revision 2, Effective: Mar 27th, 2017