NETGEAR Terms and Conditions
Please read these NETGEAR Terms and Conditions (“Terms and Conditions”) carefully. This agreement affects your rights.
IF YOU USE THE NETGEAR PRODUCT (AS DEFINED BELOW) YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE USE AND RETURN THE PRODUCT IN GOOD CONDITION WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE OF ORIGINAL PURCHASE FOR A REFUND. REFER TO SECTION 7 FOR SUBSCRIPTION CANCELLATIONS.
These Terms and Conditions are between you (“You” or “User”) and NETGEAR, Inc. concerning Your use of (including any access to) devices or services (including software included in Your device at the time of purchase), and other information and materials provided on or in connection with such devices or services, including firmware, documentation, graphics, illustrations, pictures, photographs, audio, and videos (individually and collectively, the “Product” or “Products”) provided by NETGEAR, Inc., its subsidiaries and affiliates (collectively, “NETGEAR” or “Company”). In some instances, both these Terms and Conditions and separate terms will apply to Your use of the Product (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
Your consent to these Terms and Conditions is required in order to use Your NETGEAR Product. If You do not accept these Terms and Conditions, You must return the Product in good condition within thirty (30) calendar days from the date of original purchase for a refund. Refer to Section 7 for Subscription Cancellations.
YOU AGREE TO THE MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISIONS, DESCRIBED FULLY IN SECTION 3, TO RESOLVE ANY DISPUTES WITH NETGEAR.
IF YOU SIGN UP FOR ANY NETGEAR SUBSCRIPTION SERVICES, YOU FURTHER AGREE, AS DESCRIBED IN SECTION 6.4, THAT YOUR SUBSCRIPTION MAY AUTOMATICALLY RENEW FOR THE SAME APPLICABLE TERM AND PRICE, UNTIL YOU CANCEL.
1. ACCEPTANCE OF THE TERMS AND CONDITIONS
1.1 These Terms and Conditions may be accepted by clicking the “I accept” button or checking a checkbox if such button or function is available or present via the user interface for the respective Product. You also accept the Terms and Conditions when You access or start to use the Product.
1.2 By using the Product, You affirm that You are of legal age to enter into these Terms and Conditions. You may not use the Product 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 Product under the laws of any country including the country in which You are a resident or from which You are using the Product.
1.3 If You are an individual accessing or using the Product 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.
2. INFORMAL DISPUTE RESOLUTION
2.1 NETGEAR would like an opportunity to address Your concerns without a formal legal case. Before filing a claim against NETGEAR, You agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. NETGEAR will try to resolve the dispute informally by contacting You in writing via email. If a dispute is not resolved within 30 days of submission to this email address, You or NETGEAR may bring a formal proceeding.
3. DISPUTE RESOLUTION BY BINDING ARBITRATION; CLASS ACTION WAIVER
3.1 You and NETGEAR agree to arbitrate any and all disputes or claims arising out of, in connection with, or relating to NETGEAR’s Terms and Conditions, Products, and relationship with You, including any claims that may arise after the termination of this Agreement, including, but not limited to, claims relating to advertising or efficacy of the NETGEAR Products. All disputes concerning the arbitrability of a claim (including disputes about the interpretation, breach, applicability, enforceability, revocability or validity of this Agreement) shall be decided by the arbitrator. This agreement includes any claims against NETGEAR’s employees, agents or any subsidiaries of NETGEAR. Arbitration is a method of claim resolution that is less formal than a traditional court proceeding. It uses a neutral arbitrator instead of a judge or jury and is subject to limited review by courts.
3.2 To the extent possible under Your local law, the arbitration will take place in Santa Clara County, California. The arbitration will be governed and administered by 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. NETGEAR’s Products and relationship with You involve interstate commerce, and this arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
3.3 CLASS ACTION WAIVER: YOU AND NETGEAR AGREE THAT EACH IS GIVING UP THE RIGHT TO A JURY TRIAL AND THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT OR REPRESENTATIVE PROCEEDING, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION.
3.4 Further, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, consolidated action or private attorney general action. This arbitration agreement does not stop You from bringing issues to the attention of federal, state, or local agencies, who may seek relief against us on Your behalf. If this specific provision, known as the “Class Action Waiver,” is found to be unenforceable, it cannot be severed from this arbitration agreement and the entirety of this arbitration provision shall be null and void.
3.5 Notwithstanding any provision in this Agreement to the contrary, You agree that if NETGEAR makes any future, material change to this arbitration provision, You may reject any change by sending us written notice within thirty (30) calendar days of the change to email@example.com. Your decision to reject changes in a new arbitration provision, however, does not affect any prior arbitration provisions to which You have already agreed, which would still remain in effect.
3.6 This arbitration provision is optional. You may decline or opt out of this agreement to arbitrate by sending written and signed notice to firstname.lastname@example.org within thirty (30) calendar days of purchasing Your NETGEAR Product.
3.7 Judgment upon the arbitration award 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.
4. CHANGES TO THE TERMS AND CONDITIONS
4.1 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, or other reasonable means now known or hereinafter developed.
4.2 Your continued use of the Product 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 Product. The most current version of these Terms and Conditions will be available on the NETGEAR website and supersedes previous versions.
5. SUBSCRIPTION SERVICES
5.1 Subscriptions. NETGEAR offers certain products and services on a subscription basis (“Subscription Services” or “Services”).
(a) Your subscription period is stated in Your subscription plan, and Your subscription fee will cover the Services and content covered in Your subscription plan.
(b) Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
(c) As part of Your Subscription Services, NETGEAR may offer additional content for purchase (“Purchased Content”). Except as required by law, all transactions for Purchased Content are final, and NETGEAR does not accept returns. You may cancel an order for Purchased Content within 24 hours of purchase or rental (or, for customers in the European Union, within 14 days from the date of purchase), except You may not cancel an order for Purchased Content once You have downloaded it.
6. PAYMENT AND AUTOMATIC RENEWAL
6.1 Payment. You agree that You will pay for the Subscription Services and other Purchased Content You purchase from NETGEAR, and that NETGEAR (or its third party payment processor) may charge Your credit card or other payment processing account (as chosen by You) for those Services and Purchased Content.
(a) You further acknowledge that the amount billed may vary due to promotional offers, subscription preferences that You select, changes in applicable taxes or other charges, and You authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
(b) 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.
6.2 Billing Account and Payment Method. You will be asked to provide a payment method at the time you sign up for a Service. You can access and change Your billing information and payment method by visiting www.netgear.com/support. Additionally, You agree to permit NETGEAR to use any updated account information regarding Your selected payment method provided by Your issuing bank or the applicable payment network. 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 or by contacting customer support, which may temporarily disrupt Your access to the Services while NETGEAR verifies Your new payment information.
6.3 Recurring Payments. When You purchase the Subscription Services on a recurring basis (e.g., monthly or annually), You agree that You are authorizing recurring payments, and payments will be made to NETGEAR by the method and at the recurring intervals You have agreed to, until the subscription for that Service is terminated by You or by NETGEAR. By authorizing recurring payments, You are authorizing NETGEAR to store Your payment instrument and process such payments as either electronic debits or fund transfers, or as electronic drafts from Your designated account (for Automated Clearing House or similar payments), or as charges to Your designated account (for credit card or similar payments) (collectively, “Electronic Payments”). Subscription fees are generally charged in advance of the applicable subscription period.
6.4 Automatic Renewal and Trials. If Your account is set to automatically renew or is in a trial period, YOU AGREE THAT NETGEAR MAY CHARGE YOU AUTOMATICALLY AT THE END OF THE TRIAL OR THE RENEWAL, UNLESS YOU NOTIFY NETGEAR IN ADVANCE THAT YOU WANT TO CANCEL OR DISABLE AUTO-RENEWAL. NETGEAR may revise subscription service rates by providing You at least thirty days’ notice prior to the next charge.
6.5 Automatic Renewal Sign-Up. To sign up for Subscription Services with recurring payments, You must complete the required registration details, and agree that Your subscription may automatically renew for the same applicable term until You cancel:
(a) You will receive an e-mail confirmation of Your auto-renewal once You complete the initial payment process.
(b) 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.
(c) 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.
(d) You will receive an e-mail reminder of Your auto-renewal thirty (30) days 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.
6.6 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 the Subscription 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.
6.7 Hardware Equipment. If Your Subscription Service includes hardware equipment, you will be charged a non-refundable shipping cost for NETGEAR to ship the equipment to you.
6.8 Reactivation. If for any reason You need to reactivate a terminated Subscription Service, You may be charged a reactivation fee
7. CANCELLATION POLICY AND PROCEDURE
7.1 Cancellation of Your Subscription Services by You.
(a) Cancellation Procedure. You may request termination of Your account and use of the Subscription Services at any time by communicating such request to NETGEAR by visiting www.netgear.com/support.
(b) Refund Policy. Unless otherwise specified in the Additional Terms applicable to Your Products or Services, the following will apply:
Free Trial Period. If You are taking part in any trial-period offer, You must cancel the trial Service(s) by the end of the trial period to avoid incurring new charges. If You do not cancel the trial Service(s) by the end of the trial period, NETGEAR will charge you for the Service(s).
Fixed-Term Subscription (paid monthly). If You cancel by the end of the trial period, You will not incur any new charges. If You cancel after the trial period, Your Service will continue until the end of that month’s billing period, and You will be charged an early termination fee equal to your monthly subscription rate for each month remaining on your subscription.
Fixed-Term Subscription (prepaid). If You cancel by the end of the trial period, You will not incur any new charges. If You cancel after the trial period, Your payment is non-refundable and Your service will continue until the end of Your contracted term.
Month-to-month Subscription. If You cancel by the end of the trial period, You will not incur any new charges. If You cancel after the trial period, Your payment is non-refundable and Your service will continue until the end of that month’s billing period.
Shipping Charges. Any shipping charges paid in connection with your Service(s) are non-refundable.
7.2 Termination of Your Subscription Services by NETGEAR.
(a) 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:
You are in breach of any provision of these Subscription Terms;
You have demonstrated (regardless of whether directly or through Your actions or statements or otherwise) that You do not intend to comply with these Subscription Terms or NETGEAR’s Terms and Conditions;
Your subscription charges are refused for any reason;
You misuse the Services;
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;
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;
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
Required by law.
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 Subscription 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)).
(b) Hardware Equipment. If Your Subscription Service includes hardware equipment, upon cancellation or termination, you must follow NETGEAR’s instructions in returning the equipment in good condition. If you do not return the equipment within the specified time, you will be charged for the fair market value of the equipment. You may also be required to pay shipping charges associated with the return.
(c) User Content 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.
8. CHANGES AND ACCESS TO SUBSCRIPTION SERVICES
8.1 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 7);
(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.
8.2 Purchased Content Back-Ups. You are entirely responsible, in accordance with these Terms and applicable law, for backing up Your Purchased Content 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 Purchased Content and other data. NETGEAR will not be liable if Your Purchased Content becomes unavailable for further download or streaming.
9. PRE-ORDERING NETGEAR PRODUCTS
9.1 Pre-Ordering. NETGEAR offers certain Products available for pre-order. By pre-ordering a NETGEAR Product, You acknowledge and agree that You are making a partial payment to a work-in-progress and are not making a direct purchase (“Contribution”). In return for Your Contribution, You will receive the number of Products You pre-ordered. If pre-order is available, the required Contribution for each Product will be listed on the Website. When You pre-order a Product, You agree to pay any amounts and fees NETGEAR may charge you for the Product. Before You are required to make any payment, You will have an opportunity to review and accept the amount that will be charged to You. All payments are in U.S. Dollars. NETGEAR will charge the payment method You specify at the time of your Contribution. You hereby authorize NETGEAR to charge all sums described herein to such payment method. NETGEAR may change the required Contribution amount for the Product by posting the changes on the Website.
9.2 Fulfillment. You agree that NETGEAR may cancel or refund Your Contribution at any time and for any reason prior to the date on which NETGEAR or its affiliate ships the Product(s), and under such circumstances, NETGEAR is not required to fulfill the pre-order.
9.3 Refunds. If You cancel your pre-order any time prior to the time NETGEAR or its affiliate ships Product(s), NETGEAR will refund to You the amount of Your Contribution. After the Product(s) have shipped, NETGEAR has no obligation to provide refunds or credits, but may, in its sole discretion, grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by NETGEAR.
9.4 Taxes. NETGEAR’s fees are net of any applicable Sales Tax. If the Product(s) are subject to Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to NETGEAR, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and You will indemnify NETGEAR for any liability or expense it may incur in connection with such Sales Tax. Upon NETGEAR’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this sub-section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that NETGEAR is permitted to pass to its customers that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10. NETGEAR COMPATIBLE DEVICES
10.1 Use of some of NETGEAR’s Products may require You to use a device that meets certain system and compatibility requirements. NETGEAR reserves the right to change these requirements. Whether a device is compatible also may depend on software or systems provided or maintained by third parties. Accordingly, devices that are compatible at one time may cease to be compatible in the future.
11. 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.
12. REGISTRATION AND ACCOUNT DATA
12.1 Registration. Certain Products or functionality offered on or through the Products 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 (i) provide and maintain accurate, complete and up-to-date Registration Data; (ii) protect and prevent unauthorized access to Your account; (iii) not transfer or share your account with any third party; and (iv) notify NETGEAR immediately of any suspected or actual unauthorized use of Your account or breach of security. NETGEAR may terminate Your account if You fail to abide by these ongoing obligations. You agree that NETGEAR may store and use the Account Data You provide for use in maintaining and billing applicable 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.
12.3 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.
12.4 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, and Third Party Product, such as log entries, diagnostics, bandwidth usage, WiFi usage, performance information, application usage, and various other analytics coming from devices and applications tied to You or the User. This data and related information is gathered to facilitate the provision of Product and NETGEAR product support. NETGEAR may use this information to improve 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.
12.5 Data Connections. Some Products 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.
13. PRIVACY AND PROTECTION OF PERSONAL DATA
13.2 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 services related to the Products. 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. CHILDREN’S ONLINE PRIVACY PROTECTION ACT (“COPPA”). YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE TO SIGN UP FOR A NETGEAR ACCOUNT. NETGEAR DOES NOT KNOWINGLY COLLECT OR SOLICIT PERSONAL INFORMATION FROM ANYONE UNDER THE AGE OF 18, AND NETGEAR DOES NOT KNOWINGLY ALLOW SUCH PERSONS TO SIGN UP FOR A NETGEAR ACCOUNT. IF YOU ARE UNDER EIGHTEEN (18) YEARS, DO NOT ATTEMPT TO CREATE A NETGEAR ACCOUNT 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. SOFTWARE UPDATES AND UPDATES TO THE PRODUCTS
Software Updates. By using the Product, You agree to receive all Software Updates and upgrades that NETGEAR sends to the software included in the Product. You specifically agree Your Product 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 (collectively, “Software Updates”) and (ii) install the 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 Product.
16. PROVISION OF THE PRODUCT AND LIMITATIONS ON USAGE
16.1 Product; License. The Product is 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 Product or the right to receive any related services. You further agree not to misuse the Product, violate the law in connection with the Product, or help anyone else to do so. 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 Product. Any unauthorized use of the Product for any purpose is prohibited.
16.2 Limitations on Use. Unless otherwise specified in these Terms and Conditions or any applicable Additional Terms, in connection with Your use of the Product, You will:
(a) Not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any of the Product or parts thereof, use of the Product or access to the Product;
(b) Not remove any proprietary notice language corresponding to the Product;
(c) Make no modifications to any such Product, except where such rights cannot be excluded under applicable law;
(d) Not attempt to gain unauthorized access to any portion or feature of the Product, or any other systems or networks connected to the Product or to any NETGEAR server, or to any of the services offered on or through the Product, by hacking or any other illegitimate means;
(e) Not to use the Product 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 Product; (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 Products or servers, networks or other equipment connected to the Products (including without limitation denial-of-Service attacks) or disobey any requirements, procedures, policies or regulations of networks connected to the Product; (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 Product;
(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 Product.
17. NETGEAR PRODUCT LICENSE
(a) As between You and NETGEAR, NETGEAR owns all right, title and interest in and to the Product, including without limitation all applicable intellectual property rights or other proprietary rights in such Products 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 Product.
(b) You may need to use certain software programs to use or have full access to certain features of the Product. You are required to accept and use the software included in the Product at the time of purchase and other software programs that may be delivered to Your Product 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 Products, the applicable third party retains title to and ownership of its software, copyrights and trademarks.
17.2 License Restrictions. Without limiting Section 16, You are not permitted to:
(a) grant any other user or third party a license to use the Product or otherwise to access Your account;
(b) use the Product to provide the Product or related 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 Product or any rights under it, loan or lease the Your account and/or the Product, or otherwise transfer the Your account and/or the Product 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 Product (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.
17.3 Open Source Software. Certain components of the software for the Products 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 16 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.
18.1 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.
18.2 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 Products 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.
20. CONTENT PROVIDED IN THE PRODUCT
20.1 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.
20.2 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.
21. USER CONTENT AND USER CONTENT LICENSE
21.1 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 to the full extent necessary for use of the Product, and (b) maintain a copy of the User Content (including all related intellectual property rights) for archival and legal purposes (“User Content License”).
21.2 NETGEAR does not claim ownership of the User Content You submit or make available for inclusion on the Products or NETGEAR account and You will retain any copyright and any other rights to any User Content provided by You on or through the Product or NETGEAR account. 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 to in writing.
21.3 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.
21.4 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 Products, 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. You further irrevocably grant NETGEAR the right, but not the obligation, to use Your name in connection with your Submissions. By submitting a Submission to 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 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 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. 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.
22. YOUR REPRESENTATIONS AND WARRANTIES
NONUSE OF NETGEAR PRODUCTS IN CERTAIN SYSTEMS. You agree that You will not use the NETGEAR Products 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 Products 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 24). 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 Product 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, network 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 Product;
(f) The use of the user content by NETGEAR 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.
22.2 INDEMNITY. You agree to defend, indemnify and hold harmless NETGEAR from and against any 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, relating to or arising out of Your breach of Your representations, warranties, covenants or obligations under these Terms and Conditions, Your misuse of the Products, or Your unauthorized modification or alteration of any NETGEAR Products.
23. NETGEAR’S REPRESENTATIONS AND WARRANTIES
23.1 To the extent possible under governing law, (other than a limited hardware or other warranty specifically provided by NETGEAR) the Products (including any documents or material, software and firmware updates downloaded, installed or otherwise obtained through the use of the Products) are provided by NETGEAR on an “as is” and “as available” basis and Your use of the Product 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.
23.2 To the extent allowed under applicable law, NETGEAR and its suppliers disclaim all warranties of any kind, whether express, implied, or statutory, regarding the Products, 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 Product 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 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.]
NETGEAR makes no warranty that the Product will meet Your requirements or that use of the Product 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 Product (including third party content), that any defects in the Product will be corrected or that the Product will be compatible with any other specific hardware or Product. Further, NETGEAR does not warrant that the Product 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.
23.3 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 Product 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.
23.4 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.
24. LIMITED DEVICE WARRANTIES FOR REGISTERED PRODUCTS
24.1 Registration. Notwithstanding other provisions in this Agreement, NETGEAR warrants to the original purchaser that if You register Your device online with NETGEAR, the device will be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of original retail purchase (“Limited Device Warranty”). For more specific instructions on how to register Your NETGEAR device and warranty details, visit https://www.netgear.com/about/warranty/.
24.2 Remedies. If during this period, such a defect arises, NETGEAR will, at its option and to the extent permitted by law, either (1) repair the device at no charge, using new or refurbished replacement parts, or (2) replace the device with a new or refurbished device. In the event of such a defect, to the extent permitted by law, these are Your sole and exclusive remedies. This Limited Device Warranty is valid only in the jurisdictions where the devices are sold through NETGEAR’s authorized resellers or agents, and is valid to the extent permitted by the applicable laws of such jurisdictions. Any replacement device will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for any additional period of time that may be required by applicable law.
24.3 Instructions. To obtain service under this Limited Device Warranty, contact NETGEAR’s customer service team at www.netgear.com/support. NETGEAR may require You to furnish proof of purchase details and/or comply with other requirements before receiving warranty service.
24.4 Exclusions and Limitations. This warranty does not apply to a device or part of a device that has been serviced, altered, refurbished, or modified by anyone who is not authorized by NETGEAR, nor does it apply to any cosmetic damage such as scratches and dents. In addition, this Limited Device Warranty does not apply to damage or defects caused by (1) accident, abuse, misuse, mishandling, flood, fire, earthquake or other external causes; (2) normal wear and tear or aging of the device; or (3) operating the device (a) outside the permitted or intended uses described by NETGEAR, (b) not in accordance with instructions provided by NETGEAR, or (c) with improper voltage or power supply.
24.5 TO THE EXTENT PERMITTED BY LAW, THE LIMITED DEVICE WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, AND NETGEAR SPECIFICALLY DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST HIDDEN OR LATENT DEFECTS. IF WE CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES, THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO THE DURATION OF THIS EXPRESS LIMITED DEVICE WARRANTY AND TO REPAIR OR REPLACEMENT SERVICE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG A STATUTORY OR IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
24.6 Playback Quality; Streaming. The playback resolution and quality of any Purchased Content will depend on a number of factors, including the type of device on which You are accessing the Purchased Content and Your bandwidth, which may increase or decrease during use. If NETGEAR detects that any Purchased Content it is streaming may be interrupted or may otherwise not play properly due to bandwidth constraints or other factors, NETGEAR may decrease the resolution or file size of the streamed Purchased Content in an effort to provide an uninterrupted experience. NETGEAR does not guarantee the resolution or quality of the Purchased Content You will receive while streaming.
25. YOUR LIABILITY
25.1 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 Products and for the consequences of any such breach, including any loss or damage which NETGEAR or any third party may incur or suffer.
25.2 NETGEAR will have no responsibility to You or to any third party with respect to the foregoing.
26. NETGEAR’S LIABILITY
26.1 Subject to Section 24.3, 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 direct, 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 date (whether direct or indirect);
(d) Any loss or damage as a result of:
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;
Any reliance placed by You on the suitability, accuracy, completeness, reliability or existence of any (a) Products (including any software, information documents, materials made available to You as part or in course of the usage of the Products) 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 Products;
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 Products;
Any changes, modifications, extensions or limitations (including any suspension of Your use of the NETGEAR website, services, access to Your account and account data or Your registration date) to the Products, or any permanent or temporary cessation in the provision of the Products (or any part of them); or
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.
26.2 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.
26.3 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 to the maximum extent permitted by applicable law.
27. TERMS APPLICABLE TO NETGEAR’S iOS APP(S)
27.1 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 31 (“Contact Information”).
(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.
28. FORCE MAJEURE
28.1 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.
28.2 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.
29. THIRD PARTY SITES AND OTHER CONTENT
29.1 The Products may contain content from and hyperlinks to content resources and services of third parties, including other websites and Third Party Content, and NETGEAR may also integrate third party technologies into the Products (“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. If You choose to access, transact with, or otherwise interact with any such External Resources, you do so at your ow risk.
29.2 The Products 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 Products is for personal, non-commercial use and that the Products 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 Products You are exposed to the risk that You may find some Content offensive, indecent or objectionable and that any use of the Products as regards such exposure is entirely at Your own risk.
29.3 You may from time to time and as a result of or through the use of the Products 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.
29.4 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.
30. CLAIMS REGARDING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND OTHER RIGHTS
30.1 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 Drive, San Jose, California 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 Product 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.
31. GENERAL PROVISIONS
31.1 Entire Agreement. These Terms and Conditions constitute the entire agreement between You and NETGEAR and govern Your use of the Products superseding any prior agreements between You and NETGEAR with respect to the Products. 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. 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.
31.2 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.
31.3 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 25 regarding the Apple iOS Application, no other person will be a third party beneficiary to these Terms and Conditions.
31.4 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.
31.5 No Right of Survivorship and Non-Transferability. You agree that Your Products 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 Products and related accounts may be terminated and contents therein permanently deleted.
31.6 Choice of Law. 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.
31.7 Interpretation. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect.
31.8 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.
31.9 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 Products in countries that are designated under section 6(j) of the Export Administration Act.
32.1 The following sections will survive any termination or expiration of these Terms and Conditions: Sections 10.4, 10.5, 13, 16.2, 17, 18, 21, 22, 23, 24, 25, 26, 31 and 33.
33. CONTACT INFORMATION
The following NETGEAR entity is responsible for delivering the Products depending on where You are using the Products:
• 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 Products, 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
ADDITIONAL TERMS FOR NETGEAR ARMOR SUBSCRIPTION SERVICES
1. NETGEAR Armor (powered by Bitdefender) (“Armor”) offers an Internet control software which, when installed on Your networking device (e.g., router, computer, mobile, mobile computer device), intercepts Internet-bound traffic and blocks certain unsafe applications that may attempt to access protected resources on Your device. This may result in applications not starting or behaving properly. You acknowledge that if You grant access to these applications, it may result in data loss or data theft.
2. If Your Armor Subscription Services were bundled with a NETGEAR Product, Your subscription period shall begin on the earlier of 1) the date You activate Your Armor Services, or 2) ninety (90) days from the date You install your Product (e.g., router), and shall last for the length of Your subscription period. Your Services will automatically be deactivated at the end of the subscription period, and You will not be entitled to receive any feature or content updates, unless You renew.
3. Your Armor Services may have an Anti-Theft feature available, and if installed and turned on, would allow You to track the device location, disable access to the device, transmit images that have been capture with the camera of Your device or voice records that have been recorded by the recorder of Your device.
4. During the installation process, Armor may uninstall or disable other security products if such products or features are incompatible with Armor.
5. You may not use Armor to gain unauthorized access, to upload, transmit, and transfer data or information to NETGEAR, Bitdefender or third parties by any means. You agree that Your use of Armor will be in compliance with any laws which are applicable to You.
6. You agree to accept, install and use any updates and upgrades to the Armor software that are transmitted to You automatically. The functionality of Armor can only be preserved during Your subscription if all received updates and upgrades are installed immediately following receipt.
7. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NETGEAR AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ARMOR SERVICE, ENHANCEMENTS, MAINTENANCE OR SUPPORT RELATED THERETO, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED. NETGEAR HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, DEVICE FAILURE OR MALFUNCTION, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY OF DATA, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WHETHER ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR TRADE USAGE. The foregoing provision shall be enforceable to the maximum extent permitted by applicable law.
8. You agree that Your Armor Services may contain features and functionalities that allow You to protect information on Your device(s). You may be required to provide a password in order to encrypt and protect such information. You are aware that the features and functionalities may sync encrypted information across devices based on Your request. You will not be able to recover the information You have encrypted if You lose or forget the password. You are aware that the level of encryption that can be used by Armor should protect Your information from the average device user; however, You acknowledge that the encryption may be broken. You also acknowledge that information that has been encrypted may not be unencrypted if Your hard drive has bad sectors or fails. NETGEAR shall not be held responsible for access to Your data, device or system where You have provided Your password to a third party or have failed to use reasonable efforts to protect such information, password, answers to challenge questions, or u ser error. Further, NETGEAR is not liable to You for any privacy breach or loss of data from unauthorized access to Your data, device, or system by third parties.
9. NETGEAR or Bitdefender may send You legal notices and other communications regarding Your subscription and maintenance services using the information You provide us. Such notices or communications may be sent via in-product notices or email, or posted on the NETGEAR website.
10. You acknowledge and agree that NETGEAR or Bitdefender may collect and use certain personal and technical information, including suspect files, network and equipment information, product usage, detected malware, unwanted files, and service traffic to improve its products, provide related services, and adapt them and to prevent the unlicensed or illegal use of the product or damage resulting from the malware products. You further acknowledge and agree that the security technology used may scan Your network traffic to detect the malware and to prevent the damages resulting from the malware products. Any personal data will be collected, stored and used according to the Privacy Notice at https://www.netgear.com/about/privacy-policy/default.aspx.
11. You agree to upload any executable files for the purpose of being scanned by NETGEAR or Bitdefender servers. This information from Your computer may be sent to NETGEAR or Bitdefender only with Your permission, and will not be sent automatically. The information is collected for the purpose of improving Armor performance or statistic information. This information will not be correlated with any personal data or personal identifiable information. You agree that NETGEAR may (i) use uploaded data from Your Armor Services to improve products and services; (ii) use uploaded data for analysis or reporting purposes only if any such use does not identify You or include any information that can be used to identify any individual person.
ADDITIONAL TERMS FOR NETGEAR E-STORE
2. Paying for Your Order. NETGEAR will charge Your payment method for an item at the time of shipment. However, NETGEAR may pre-authorize Your order amount with Your credit card, credit account, or debit card issuer at the time You place the order. When You pre-order with a debit card, NETGEAR will debit Your card when You place the pre-order.
3. Order Confirmation. An order confirmation to You does not signify NETGEAR’s acceptance of Your order, nor does it constitute confirmation of NETGEAR’s offer to sell. At any time after receipt of Your order, NETGEAR may accept, decline, or place quantity or other limits on Your order for any reason. NETGEAR may impose these limits on a per-person, per-household, per-order, or any other basis. If NETGEAR cancels an order or part of an order that NETGEAR already charged You for, NETGEAR will refund You the full amount of the canceled portion of the order.
4. Price Matching. NETGEAR consistently works toward maintaining competitive prices on its Products and Services. NETGEAR does not offer price matching.
5. Returns, Refunds and Title. Non-warranty returns are eligible for refund if You request a refund and return the item(s) to us within 30 days from Your original purchase date. You will be refunded to Your original form of payment at the original purchase price plus applicable sales tax after we have processed your return at our returns facility. Return shipping charges (if any) will be deducted from Your refund. Refunds will appear on Your statement within approximately 15 business days. If You made Your purchase as part of a bundle or with a promotional offer, Your refund may be adjusted and/or pro-rated accordingly. NETGEAR does not take title to returned items until the item arrives at the returns facility. Instructions for warranty return and replacement are found here https://www.netgear.com/about/warranty/.
6. Shipping, Delivery, Title, and Risk of Loss. NETGEAR will pack and ship the Products in accordance with its standard practices. Shipping and handling charges are additional unless otherwise expressly indicated at the time of sale. Products are shipped by a third party carrier pursuant to a shipment contract. As a result, title to the Products and risk of loss will pass to You upon NETGEAR’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. NETGEAR will make reasonable efforts to meet the scheduled shipment dates, but in no event will NETGEAR be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
7. Taxes. NETGEAR is required by law to charge applicable sales taxes based on state and local laws. Generally, the tax rate is based on the type of product or service purchased and where Your purchase is shipped, delivered, or picked up. Where sales tax applies, the order total during Your checkout reflects the estimated tax. The final sales tax charged on Your order will be calculated at the time of shipment. Shipping charges may also be subject to tax in certain states.
8. Accuracy of Content. NETGEAR will make reasonable efforts to accurately display the attributes of the Products and Services it sells. NETGEAR does not warrant that product descriptions or other content is accurate, complete, or error free. Prices and promotions are subject to change. NETGEAR cannot confirm the availability or price of an item until You place Your order. Despite NETGEAR’s best efforts, sometimes an item may not be available, the offer may have been misstated, or an item may be mispriced. For any of these reasons, NETGEAR may cancel Your order or contact You for instructions on the order. NETGEAR also reserves the right to limit quantities and to revise, suspend, or terminate an event or promotion at any time without notice.
9. Unavailability of Account; Termination; Fraud. NETGEAR may, in its sole discretion, terminate or suspend Your use or access to Your account for any reason, including without limitation, breach of these Terms and Conditions. If NETGEAR notifies You that Your access to or use of Your account is terminated, You must cease and desist from all access or use immediately. NETGEAR reserves the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud is suspected without any notice to You.
© 2019 NETGEAR, Inc. All Rights Reserved.
Revision Effective: May. 29, 2019