IF YOU ARE RESIDENT IN THE U.S. OR ANOTHER COUNTRY OUTSIDE THE EU, THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE MOST DISPUTES.
IF YOU ARE RESIDENT IN THE U.S. OR ANOTHER COUNTRY OUTSIDE THE EU, THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
SUBJECT TO SECTION 15.1(h), PLEASE NOTE THAT The Terms are subject to change by Nikon in its sole discretion at any time. When changes are made, Nikon will make a new copy of the Terms available on the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have provided us with your e-mail address, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms will be effective immediately for new users and will be effective for existing users upon the earlier of thirty (30) days after posting of notice of such changes or thirty (30) days after dispatch of an e-mail notice of such changes. Nikon may require you to provide consent to the updated Terms in a specified manner before further use of the Nikon Properties (as defined in Section 1 below) is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Nikon Properties. Otherwise, your continued use of the Nikon Properties constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE MOST CURRENT TERMS.
1. USE OF NIKON PROPERTIES.
The Website, Services, and the content, data, and information available in the foregoing (collectively, the “Nikon Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Nikon grants you a limited license to reproduce portions of Nikon Properties for the sole purpose of using the Nikon Properties for your personal noncommercial purposes. Unless otherwise specified by Nikon in a separate license, your right to use any Nikon Properties is subject to the Terms.
You understand that Nikon Properties are evolving. As a result, Nikon may require you to accept updates to the Nikon Properties that you have installed on your computer and/or mobile device. You acknowledge and agree that Nikon may automatically update Nikon Properties with or without notifying you. You may need to update third-party software from time to time in order to use Nikon Properties.
1.2 Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Nikon Properties or any portion of Nikon Properties; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Nikon Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Nikon Properties; (d) you shall not access Nikon Properties in order to build a similar or competitive product or service; and (e) except as expressly stated herein, no part of Nikon Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Nikon Properties shall be subject to the Terms. Nikon, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Nikon Properties terminates the licenses granted by Nikon pursuant to the Terms.
1.3 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Nikon Properties, including but not limited to, a mobile device that is suitable to connect with and use Nikon Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Nikon Properties.
2.1 Registering Your Account.
To access certain features of Nikon Properties you will be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who creates an account with Nikon (“Account”) by either registering directly with Nikon through the Website or logging into the Website with the user’s social networking service account (“Third-Party Account”). By logging in with your Third-Party Account, you represent that you are authorized to disclose your Third-Party Account login information to Nikon and/or grant Nikon access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Nikon to pay any fees or subjecting Nikon to any usage limitations imposed by such third-party service providers. By granting Nikon access to any Third-Party Accounts, you understand that Nikon may access, make available and store (if applicable) any Content (as defined below) accessible through Nikon Properties that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through Nikon Properties via your Account. Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content for all purposes of the Terms. Subject to the privacy settings that you have set in your Third-Party Account, personal data that you post to your Third-Party Account may be available on and through your Account on Nikon Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Nikon’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content may no longer be available on and through Nikon Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDER ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDER, AND NIKON DISCLAIMS ANY LIABILITY FOR PERSONAL DATA THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDER IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNT. Nikon makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Nikon is not responsible for any Third-Party Account Content.
2.2 Registration Data.
In registering for an Account, you agree to (1) provide true, accurate, current and complete information about yourself (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using Nikon Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Nikon immediately of any unauthorized use of your password or any other breach of security and exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Nikon has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Nikon has the right to suspend or terminate your Account and refuse any and all current or future use of Nikon Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use Nikon Properties if you have been previously removed by Nikon, or if you have been previously banned from any Nikon Properties.
2.3 Your Account.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nikon.
3. USER CONTENT.
3.1 Types of Content.
You acknowledge that all videos, information, or other content (“Content”) that appears on the Nikon Properties is the sole responsibility of the party from whom such Content originated. This means that you, and not Nikon, are entirely responsible for all Content that you upload, post, e-mail, transmit, submit, or otherwise make available through Nikon Properties (“Your Content”). All videos made available to Nikon must constitute footage from any one or more of any Nikon product or camera. No part of any videos made available to Nikon can contain any footage made from any product of any third party.
3.2 No Obligation to Pre-Screen Content.
You acknowledge that Nikon has no obligation to pre-screen any Content submitted by a user, although Nikon reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that Nikon pre-screens, refuses or removes any Content, you acknowledge that Nikon will do so for Nikon’s benefit, not yours. Without limiting the foregoing, Nikon shall have the right to remove any Content that violates the Terms or is otherwise objectionable to Nikon.
3.3 Submission of Your Content.
Submission of Your Content to Nikon is not a guarantee that Nikon will publish or otherwise use Your Content. For clarity, by submitting Your Content, you agree that Nikon may use Your Content, in whole or in part, without any further approval by you or compensation to you except as set forth in Section 3.5.
3.4 License to Your Content.
You hereby grant to Nikon and its affiliates a worldwide, non-exclusive, fully paid, royalty-free, irrevocable, perpetual license, with the right to sublicense through multiple tiers, to (a) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use Your Content in any medium or format, whether now known or hereafter discovered, (b) use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from Your Content, and (c) exercise any and all other present or future rights in Your Content. You warrant that the holder of any worldwide intellectual property right, including without limitation, moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree to execute and deliver (or cause your representatives to execute and deliver) any additional documents requested by Nikon to perfect, maintain, protect, or enforce Nikon’s and its affiliates’ rights described above.
3.5 Reward Opportunities.
From time to time, we may offer certain rewards for great content and such offers will be subject to these Terms and any additional offer-specific official rules or terms that may be posted on the Services (“Reward Rules”).
(a) All rewards and other compensation are exclusive of taxes, duties, levies, tariffs and any other governmental charges (such as VAT) (“Taxes”). You will be solely responsible for paying any applicable Taxes, interest, and penalties due in connection with any rewards or other compensation you receive from Nikon, and you agree to indemnify Nikon for any liability or expense we may incur in connection with such Taxes.
(b) As a condition of receiving a reward, you must (i) follow any instructions set forth in the applicable Reward Rules or as otherwise provided by Nikon and (ii) sign and return any documents requested by Nikon, including but not limited to, an affidavit of eligibility and publicity/liability release. Failure to sign and return any requested documents by the specified return date will result in disqualification and the forfeiture of all interest in the reward. If you are a resident of the U.S., you will be issued an IRS Form 1099 in the amount of the actual retail value of the prize and you must provide Nikon with your valid Social Security Number or Taxpayer ID for tax reporting purposes.
(c) By accepting a reward, you hereby grant to Nikon and its affiliates a worldwide, non-exclusive, fully paid, royalty-free, irrevocable, perpetual license, with the right to sublicense through multiple tiers, to use, distribute, and publicly display Your Content, your name, likeness and country of residence in any way, at any time, in any and all media, including for use in advertising and marketing without any additional approval or consideration.
(d) Nikon reserves the right to modify or discontinue any rewards offers at any time and reserves the right to remove any user content from websites operated by Nikon, its affiliates, and/or its authorized partners, and for any reason. Nikon does not guarantee that it will feature, publish, promote, or host any user videos or other user content for any period of time. You agree that the Nikon Parties (as defined below) will not incur any liability to you for Nikon’s exercise of the rights set forth in this Section 3.5(d).
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Nikon Properties, you hereby expressly permit Nikon to identify you by your username as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
3.7 Your Profile.
Any Content posted by you in your profile may not contain nudity, violence, obscenity, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph or video of another person without that person’s permission.
4.1 Nikon Properties.
You agree that Nikon and its licensors and suppliers own all rights, title and interest in the Nikon Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Nikon Properties.
Nikon’s name and other related graphics, logos, service marks and trade names used on or in connection with Nikon Properties are the trademarks of Nikon and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Nikon Properties are the property of their respective owners.
4.3 Other Content.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Nikon Properties.
4.4 Your Content.
Nikon does not claim ownership of Your Content. When you as a user post or publish Your Content on or in Nikon Properties or submit Your Content to Nikon for consideration for publication, you represent and warrant that (i) you own Your Content and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including without limitation, any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content, (ii) you have obtained any and all necessary third-party rights, clearances, authorizations, permissions, and other releases (“Releases”) necessary or required for Your Content to be displayed, performed publicly, or otherwise used by or on behalf of Nikon and its affiliates, including without limitation, the Releases necessary to obtain and use any footage or other work of authorship included within or embodied by Your Content (including, without limitation, any synchronization, publishing, public performance or other rights) and to use all creative elements, appearances, and all third-party materials comprising, embodied by, appearing in, or otherwise displayed as part of any submission, including, without limitation, stock footage, artwork, trademarks, service marks, rights of publicity and indicia of identity (including names, statements, voices, and likenesses), literary materials and music, and (iii) the license to Your Content granted by you to Nikon and its affiliates pursuant to Section 3.4 may be granted by you to Nikon and its affiliates without obtaining approval or consent from, or paying any consideration to, a third party.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Nikon (“Feedback”) is at your own risk and that Nikon has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nikon and its affiliates a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback.
5. USER CONDUCT.
As a condition of use, you agree not to use the Nikon Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any Content on or through the Nikon Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Nikon’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including, without limitation, any employee or representative of Nikon; (vi) interferes with or attempts to interfere with the proper functioning of any Nikon Properties or uses Nikon Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against any Nikon Properties, including but not limited to violating or attempting to violate any security features of the Nikon Properties, introducing viruses, worms, or similar harmful code into any Nikon Properties, or interfering or attempting to interfere with use of any Nikon Properties by any other user, host or network, including by means of overloading, flooding, spamming, mail bombing, or crashing any Nikon Properties.
7. THIRD-PARTY WEBSITES.
Nikon Properties may contain links to third-party websites (collectively, “Third-Party Websites”). When you click on a link to a third-party website, we will not warn you that you have left the Nikon Properties and are subject to the terms and conditions (including privacy policies) of another destination. Such Third-Party Websites are not under the control of Nikon. Nikon is not responsible for any Third-Party Websites. Nikon provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave Nikon Properties, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third-party websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.
Nikon may, but is not obligated to, monitor or review Your Content at any time. Without limiting the foregoing, Nikon shall have the right, in its sole discretion, to remove Your Content for any reason (or no reason), including if any of Your Content violates the Terms or any applicable law. If Nikon becomes aware of any possible violations by a user of any provision of the Terms, Nikon reserves the right to investigate such violations, and Nikon may, at its sole discretion, immediately terminate the user’s license to use the Nikon Properties, or change, alter or remove any of Your Content, in whole or in part, without prior notice.
You agree to indemnify and hold Nikon, its parents, subsidiaries, affiliates, officers, directors, employees, agents, partners, licensors, suppliers, successors and assigns (collectively, the “Nikon Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your misuse of any Nikon Properties; (b) your violation of the Terms; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Nikon reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nikon in asserting any available defenses. You agree that the provisions in this Section will survive any termination of the Terms or your access to Nikon Properties.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 9.
10. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF The Nikon Properties IS AT YOUR SOLE RISK, AND THE Nikon Properties ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE Nikon PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Nikon PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) Nikon Properties WILL MEET YOUR REQUIREMENTS or guarantee any results; (2) YOUR USE OF Nikon Properties WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) INFORMATION MADE AVAILABLE THROUGH NIKON PROPERTIES IS UP-TO-DATE, ACCURATE, OR RELIABLE; or (4) ANY ERRORS IN Nikon Properties WILL BE CORRECTED. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 10.
11. LIMITATION OF LIABILITY AND LIMITATION OF TIME TO FILE CLAIMS IF YOU ARE RESIDENT IN THE U.S. OR ANOTHER COUNTRY OUTSIDE OF EU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANY Nikon PARTIES BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE Nikon Properties, WHETHER OR NOT ANY Nikon PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH: (1) THE USE OR INABILITY TO USE Nikon Properties OR (2) ANY OTHER MATTER RELATED TO Nikon Properties, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NIKON PARTIES’ AGGREGATE CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO Nikon Properties SHALL IN NO EVENT EXCEED THE GREATER OF (A) TWO HUNDRED FIFTY DOLLARS ($250) OR (B) ANY AMOUNTS EXPRESSLY AWARDED TO YOU BY NIKON WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY WHICH HAVE NOT YET BEEN PAID. YOU AND Nikon AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR Nikon Properties MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Nikon AND YOU. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 11.
12. LIMITATION OF LIABILITY IF YOU ARE RESIDENT IN THE EU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANY NIKON PARTIES BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH NIKON PROPERTIES, WHETHER OR NOT ANY Nikon PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NIKON PARTIES’ AGGREGATE CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO NIKON PROPERTIES SHALL IN NO EVENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) ANY AMOUNTS EXPRESSLY AWARDED TO YOU BY NIKON WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY WHICH HAVE NOT YET BEEN PAID. The exclusions in this Section 12 shall apply to the maximum extent permitted by law, but THE NIKON PARTIES do not exclude liability for death or personal injury caused by THEIR negligence, fraud or fraudulent misrepresentation, or any other liability which may not be excluded by law. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NIKON AND YOU. THE LAWS OF SOME COUNTRIES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
13. TERM AND TERMINATION.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use any Nikon Properties, unless terminated earlier in accordance with the Terms.
If you have materially breached any provision of the Terms, if we are required to do so by law (e.g., where the provision of any of Nikon Properties is, or becomes, unlawful), or if we choose to discontinue any Nikon Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate any Nikon Properties provided to you. If we become aware of any possible violations by you of the Terms, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Terms; (ii) notify and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any data, content, or other information on or in Nikon Properties in our possession in connection with your use of any Nikon Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms; (iii) respond to your requests for customer service; or (iv) protect the rights, property or personal safety of Nikon, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13.2.
13.3 Effect of Termination.
Termination includes removal of access to and barring of further use of the Nikon Properties, including deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Nikon will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of your use of the Nikon Properties, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13.3.
13.4 No Subsequent Registration.
If your registration(s) with or ability to access Nikon Properties is discontinued by Nikon, you agree that you shall not attempt to re-register with or access Nikon Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Nikon reserves the right, in its sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you.
14. INTERNATIONAL USERS.
The Nikon Properties can be accessed from countries around the world and may contain references to Nikon Properties that are not available in your country. These references do not imply that Nikon intends to introduce such Nikon Properties in your country. You agree that your access or use of the Nikon Properties is at your own volition and you are responsible for compliance with local law.
15.1 Please read the following Section 15 carefully if you are resident in the U.S. If you are resident in the U.S., this Section requires you to arbitrate disputes with Nikon and limits the manner in which you can seek relief from us. If you are resident in the EU, please refer to Section 17.2. If you are resident of a country outside the EU or U.S., please refer to Section 17.3. This Section 15 shall be referred to as the “Arbitration Agreement”.
(a) Scope of Arbitration Agreement. You agree that any dispute or claim between you and Nikon that arises from or relates in any way to your access or use of the Nikon Properties or Your Content or will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Nikon may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior agreement.
(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a email requesting arbitration and describing your claim to our registered agent, Garland Mak, at contact@InEveryFrame.com. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of these Terms. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, Nikon will pay them for you. In addition, Nikon will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.
(c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Nikon. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Nikon.
(d) Waiver of Jury Trial. YOU AND NIKON WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Nikon are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 15.1(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Nikon is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 17.1.
(f) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Nikon can force the other to arbitrate pursuant to this Arbitration Agreement. To opt out, you must notify Nikon in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your legal name and address, your username (if any), the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to firstname.lastname@example.org. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter into in the future, with us.
(g) Survival. This Arbitration Agreement will survive any termination of your relationship with Nikon.
(h) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Nikon makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Nikon.
16. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is Nikon’s policy to terminate the user account of any user who repeatedly infringes copyright upon prompt notification to Nikon by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Nikon Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Nikon Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Nikon’s Copyright Agent for notice of claims of copyright infringement is as follows: Garland Mak at contact@InEveryFrame.com.
17. GENERAL PROVISIONS.
17.1 Governing Law and Exclusive Venue if you are resident in the U.S..
If you are resident in the U.S., to the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Nikon agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state courts in Suffolk County, New York or the federal courts located in the Eastern District of New York. The Terms and any action related thereto will be governed and interpreted by and under the laws of New York, without giving effect to any principles that provide for the application of the laws of any other jurisdiction.
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 17.1.
17.2 Governing Law and Non-exclusive venue if you are resident in the EU.
If you are resident in the EU, both you and Nikon agree to submit to the non-exclusive jurisdiction of the English courts. This means that if you live in the EU, you may bring a claim to enforce your consumer protection rights in connection with these Terms in England or in the EU country in which you live. The Terms and any action related thereto will be governed and interpreted by and under the laws of England, without giving effect to any principles that provide for the application of the laws of any other jurisdiction, subject to the application of any mandatory consumer protection laws of any EU country in which you live. This means that if you live in the EU, you may bring a claim to enforce your consumer protection rights in connection with these Terms in England or in the EU country in which you live.
17.3 Governing Law and Exclusive Venue if you are resident outside of the EU or US.
If you are resident in another country outside the EU or US, to the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Nikon agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in Tokyo, Japan. The Terms and any action related thereto will be governed and interpreted by and under the laws of Japan, without giving effect to any principles that provide for the application of the laws of any other jurisdiction.
17.4 Electronic Communications.
The communications between you and Nikon use electronic means, whether you visit Nikon Properties or send Nikon e-mails, or whether Nikon posts notices on Nikon Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Nikon in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nikon provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
If you are resident in the U.S. or another country outside the EU, you hereby release Nikon Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Nikon Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
PLEASE SEE CONSUMER PROTECTION NOTICE IN SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 17.5.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Nikon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.7 Force Majeure.
Nikon shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
If you believe that Nikon has not adhered to the Terms, please contact Nikon by emailing us at contact@InEveryFrame.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Where Nikon requires that you provide an e-mail address, you are responsible for providing Nikon with your most current e-mail address. In the event that the last e-mail address you provided to Nikon is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Nikon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nikon at the following address: Nikon Corporation, 60 Anson Road #09-01 Mapletree Anson, Singapore 079914, Attn: Global Web Marketing team. Such notice shall be deemed given when received by Nikon by letter delivered by internationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Subject to Section 15.1(e), if any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
17.12 Export Control.
You may not use, export, import, or transfer Nikon Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Nikon Properties, and any other applicable laws. In particular, but without limitation, Nikon Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Nikon Properties, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Nikon Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Nikon are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any products, services or technology provided by Nikon, either directly or indirectly, to any country in violation of such laws and regulations.
17.13 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
18. CONSUMER PROTECTION NOTICE; EXCLUSIONS AND LIMITATIONS.
IF YOU ARE A CONSUMER, THE PROVISIONS IN THESE TERMS AND CONDITIONS OF USE ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS OF YOUR STATE OF RESIDENCE. IF YOU ARE A NEW JERSEY CONSUMER, THE TERMS OF SECTIONS 7, 9, 10, 11, 13.2, 13.3, 17.1 AND 17.5 DO NOT LIMIT OR WAIVE YOUR RIGHTS AS A CONSUMER UNDER NEW JERSEY LAW AND THE PROVISIONS IN THESE TERMS AND CONDITIONS OF USE ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS OF THE STATE OF NEW JERSEY. IN ANY EVENT, NIKON RESERVES ALL RIGHTS, DEFENSES AND PERMISSIBLE LIMITATIONS UNDER THE LAW OF YOUR STATE OF RESIDENCE.
End of Terms