Nikon Optical USA Inc. TERMS AND CONDITIONS OF USE
As of October 1st, 2017.
These Terms and Conditions of Use apply to this Nikon Optical USA Inc. website and any other Nikon Optical USA Inc. websites including any of its microsites or subsites (collectively “Nikon Owned Websites”). Nikon Owned Websites are the property of Nikon Optical USA Inc. (“Nikon”, “we”, “our” or “us”) or its licensors.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING A NIKON OWNED WEBSITE. BY USING A NIKON OWNED WEBSITE, YOU AGREE TO AND ACCEPT WITHOUT LIMITATION OR QUALIFICATION THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT AGREE, DO NOT USE ANY NIKON OWNED WEBSITE.
Nikon reserves the right in its sole discretion, to change, revise, add to, remove from and otherwise edit these Terms and Conditions of Use at any time by removing these Terms and Conditions of Use or posting updated Terms and Conditions of Use on our Nikon Owned Websites. Any removal of and/or changes, revisions, or additions to these Terms and Conditions of Use are effective at the time they are posted or removed unless you are using a Nikon Owned Website at the time of such posting or removal. In this event any removal, change, revision, or addition will be effective the next time that you access or use a Nikon Owned Website. For this reason it is your responsibility and Nikon encourages you to check these Terms and Conditions of Use each time you visit any of our Nikon Owned Websites. Your continued use of a Nikon Owned Website following the removal of or the posting of any changes, revisions, and/or additions will mean that you accept and agree to them. As long as you comply with these and any updated Terms and Conditions of Use, Nikon grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use our Nikon Owned Websites, including but not limited to any Content contained on or accessible from a Nikon Owned Website, for personal, noncommercial and informational purposes only.
All material(s) and content including but not limited to images, text, graphics, software, user interfaces, visual interfaces, sounds, trademarks, logos, artwork and computer code (collectively “Content”) contained on any of our Nikon Owned Website are owned, controlled or licensed by or to Nikon, and are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property or proprietary rights and laws.
You may use information on Nikon products and services purposely made available by Nikon for downloading from any of our Nikon Owned Websites, provided that you (1) do not remove or change any copyright, trademark, patent and/or other intellectual or proprietary notice or registration language, (2) use such information only for your personal, noncommercial, informational purposes and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no revisions to any such information, and (4) do not make any additional representations or warranties relating to such information.
There are a number of Nikon proprietary logos, trademarks and service marks (collectively “Trademarks”) displayed on the Nikon Owned Websites. All such Trademarks (whether registered or not registered) are the property of Nikon and/or Nikon Corporation. By displaying any Trademarks on any Nikon Owned Websites, Nikon is not granting and does not grant you a license or the right to use any of the Trademarks nor should anything contained on any of our Nikon Owned Websites be construed or interpreted as granting you by implication or otherwise a license or any right to use any of the Trademarks without the prior express written permission of Nikon in each instance.
Except as expressly provided in these Terms and Conditions of Use, no part of any Nikon Owned Website and no Content and/or Software may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial purpose, without Nikon’s prior express written consent in each instance.
2. LINKS TO NON-NIKON OWNED WEBSITES
Nikon Owned Websites may provide links to other websites which are not owned by Nikon and are owned by companies or parties which are either affiliated or unaffiliated with Nikon (collectively “Non-Nikon Owned Websites”). These links to Non-Nikon Owned Websites are provided to you solely as a matter of convenience and for informational purposes. If you access any of these links, you will no longer be on a Nikon Owned Website. We do not endorse or make any representation about Non-Nikon Owned Websites, and we are not responsible for and we disclaim all warranties, express or implied, as to the privacy, content or security of such Non-Nikon Owned Websites. You are responsible for reviewing, and we encourage you to review the Policies and Terms and Conditions of Use of such Non-Nikon Owned Websites.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 2.
By using any of our Nikon Owned Websites, you acknowledge and agree that internet transmissions are never completely private or secure and that any Information you send or submit to any of our Nikon Owned Websites may be intercepted and read by third parties, unless there is a specific indication or notice that a particular transmission (e.g., credit card information) is encrypted.
Nikon Owned Websites may from time to time, present contests, sweepstakes or other promotions (collectively “Contest(s)”) that offer prizes or that require you to send in material or information about yourself. Each Contest has its own rules and requirements which you must read and agree to before you may enter or participate.
In the event any software is available for downloading on or from any of our Nikon Owned Websites, such software is the copyrighted work and property of Nikon and/or its suppliers (the “Software”). Use of any such Software is subject to the terms and conditions of the license agreement that are provided with or accompanying such Software. Unless expressly permitted by the license agreement provided with or accompanying such Software, any reproduction or copying of any such Software is strictly prohibited. In no event are you permitted to create derivative works of such Software or to reverse engineer, disassemble, decompile or otherwise tamper with any such Software.
6. PRODUCTS AND SERVICES
Any products and services displayed for sale on any of our Nikon Owned Websites are intended for sale only in the U.S. Displaying such products and services does not mean and should not be interpreted to mean that such products and services will be available at any given time. All Nikon authorized dealers and resellers of Nikon’s products or Nikon authorized service stations for Nikon products identified on a Nikon Owned Website are independent businesses and are identified only as a convenience to those seeking to purchase Nikon products or to have their Nikon products serviced. Nikon authorized dealers and resellers determine in their sole discretion their own selling prices of Nikon products and Nikon authorized service stations determine in their sole discretion their own service prices for Nikon products, which prices may vary from Nikon’s prices. ANY SPECIFICATIONS, DESCRIPTIONS OR OTHER INFORMATION PERTAINING TO ANY PRODUCTS AND SERVICES ON ANY OF OUR NIKON OWNED WEBSITES ARE SUBJECT TO CHANGE WITHOUT NOTICE.
7. DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY
NIKON DOES NOT REPRESENT OR WARRANT THAT ANY OF OUR NIKON OWNED WEBSITES INCLUDING BUT NOT LIMITED TO ANY OF THE CONTENT AND SOFTWARE CONTAINED ON OR ACCESSIBLE TO YOU FROM ANY OF OUR NIKON OWNED WEBSITES WILL BE ERROR-FREE, FREE OF VIRUSES, CONTAMINATION OR OTHER DESTRUCTIVE FEATURES, OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT OUR NIKON OWNED WEBSITES OR ANY PORTIONS OF THEM WILL BE CONTINOUSLY AVAILABLE FOR USE, OR THAT YOUR USE OF ANY OF OUR NIKON OWNED WEBSITES OR ANY PORTIONS OF THEM WILL PROVIDE SPECIFIC RESULTS. THE NIKON OWNED WEBSITES, INCLUDING BUT NOT LIMITED TO THE CONTENT AND THE SOFTWARE CONTAINED ON OR ACCESSIBLE FROM ANY OF OUR NIKON OWNED WEBSITES ARE DELIVERED ON AN “AS- IS” AND “AS-AVAILABLE” BASIS. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO ANY OF THE NIKON OWNED WEBSITES AND ANY OF THE CONTENT AND SOFTWARE CONTAINED ON OR ACCESSIBLE FROM ANY OF THE NIKON OWNED WEBSITES, NIKON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF ANY OF OUR NIKON OWNED WEBSITES AND ANY LINKED NON-NIKON OWNED WEBSITES. YOUR SOLE REMEDY AGAINST NIKON FOR DISSATISFACTION WITH ANY OF OUR NIKON OWNED WEBSITES OR ANY CONTENT CONTAINED ON OR ACCESSIBLE FROM ANY OF OUR NIKON OWNED WEBSITES IS TO STOP USING SUCH NIKON OWNED WEBSITES OR SUCH CONTENT.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL NIKON BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT OR ARISE OUT OF YOUR USE OR INABILITY TO USE ANY OF OUR NIKON OWNED WEBSITES INCLUDING BUT NOT LIMITED TO ANY CONTENT CONTAINED ON OR ACCESSIBLE FROM ANY OF OUR NIKON OWNED WEBSITES, EVEN IF NIKON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PLEASE NOTE THAT SOME STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH ABOVE, IN NO EVENT SHALL NIKON’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) EXCEED $ 250.00.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.
YOU AGREE TO BE LIABLE TO AND TO INDEMNIFY NIKON, ITS PARENTS, AFFILIATES, LICENSORS, LICENSEES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, (COLLECTIVELY “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND COSTS (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR RELATED TO (I) ANY BREACH OF THESE TERMS AND CONDITIONS OF USE BY YOU OR ANYONE ACTING UNDER YOUR DIRECTION, AUTHORITY AND/OR CONTROL, AND/OR (II) YOUR MISUSE OF ANY OF OUR NIKON OWNED WEBSITES.YOU AGREE THAT NIKON SHALL HAVE THE RIGHT TO SELECT ITS OWN ATTORNEYS, AT YOUR EXPENSE, TO DEFEND ANY OF THE INDEMNIFIED PARTIES REGARDING ANY CLAIMS SUBJECT TO INDEMNIFICATION BY YOU. YOU ALSO AGREE THAT YOU SHALL NOT SETTLE ANY CLAIM INVOLVING ANY OF THE INDEMNIFIED PARTIES WITHOUT THE WRITTEN CONSENT OF NIKON.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 8.
9. RESERVATION OF RIGHTS
NIKON RESERVES THE RIGHT TO DO ANY OF THE FOLLOWING, AT ANY TIME, WITHOUT NOTICE: (1) TO REVISE, CHANGE, SUSPEND, INTERRUPT OR TERMINATE OPERATION OF OR ACCESS TO ANY OF THE NIKON OWNED WEBSITES, OR ANY PORTION OF ANY OF THE NIKON OWNED WEBSITES, FOR ANY REASON WHATSOEVER AS SHALL BE DETERMINED BY NIKON IN ITS SOLE DISCRETION; AND (2) TO REVISE, ADD TO, REMOVE OR CHANGE ANY OF THE NIKON OWNED WEBSITES, OR ANY PORTION OF ANY OF THE NIKON OWNED WEBSITES, AND ANY APPLICABLE POLICIES OR TERMS AND CONDITIONS OF USE.
10. EXPORT CONTROLS
You agree not to use, download, transmit, export or re-export any Content and/or Software contained on or accessible from any of the Nikon Owned Websites in violation of any applicable laws or regulations including but not limited to any U.S. export control laws and regulations.
11. GOVERNING LAW
You agree that these Terms and Conditions of Use and any dispute or action relating to any Nikon Owned Website or any Content contained on or used in connection with any Nikon Owned Website will be governed by and construed in accordance with the laws of the State of New York and the United States, as such laws are applied to agreements entered into and to be performed entirely within New York State between New York State residents, without regard to its conflict of laws principles.
IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN CONSUMER PROTECTION NOTICE SECTION 16 BELOW.
12. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER
Except for any disputes, claims or controversies relating to the enforcement of Nikon’s intellectual property rights including without limitation the Trademarks, you and Nikon each agree that any legal or equitable claim, dispute or controversy relating to or arising from your use of any of the Nikon Owned Websites, or any Content contained on or used in connection with any of the Nikon Owned Websites or the interpretation, enforceability or applicability of these Terms and Conditions of Use (collectively a “Claim”) will be resolved as follows:
A. INFORMAL RESOLUTION:
You and Nikon will first attempt to resolve any Claim informally. In the event that any Claim arises between you and Nikon, you or Nikon as the case may be, must send to the other a notice of Claim which indicates in writing the name, address and contact information of the party sending the notice of Claim; the facts and any other relevant information pertaining to the Claim; and the party’s proposed resolution as to the Claim. You must send any notice of Claim to Nikon as follows: Nikon Optical Usa Inc., 1300 Walt Whitman Road, Melville, New York 11747. Nikon will send any notice of Claim to you at the contact information that Nikon has for you. You and Nikon agree to try to promptly resolve any Claim informally. In the event a Claim is not resolved within 60 days after either you or Nikon as the case may be, receives a notice of Claim from the other, you or Nikon can request arbitration. Notwithstanding the requirement to arbitrate all Claims, you may commence an individual Claim in small claims court in lieu of arbitration.
B. FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER:
READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION BEFORE A JUDGE OR JURY. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. In the event that you and Nikon do not resolve a Claim informally or in small claims court, the Claim shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act.
The rules in arbitration are different. There is no judge or jury, and review is limited, but an arbitrator may award the same damages and relief to you individually as a court could, as it must honor the same limitations stated in these Terms and Conditions of Use as a court would. Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms and Conditions of Use. If there is a conflict between JAMS Rules and the rules set forth in these Terms and Conditions of Use, the rules set forth in these Terms and Conditions of Use shall govern. If you decide to initiate arbitration, Nikon agrees to pay the arbitration initiation fee and any additional required deposit required by JAMS to initiate your arbitration. You and Nikon agree to pay the costs of the arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. Arbitration will be held at a location near your place of residence if possible, unless you and Nikon both agree to another location or to telephonic arbitration. To initiate arbitration, you or Nikon must do the following things:
(1) Write a demand for arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS, 620 Eighth Ave., 34th Floor, New York, NY 10018.
(3) Send one copy of the Demand for Arbitration to the other party. You should send the Demand for Arbitration to Nikon as follows: Nikon Optical Usa Inc., 1300 Walt Whitman Road, Melville, New York 11747, Attention: Arbitration Claim/Legal Department. Nikon will send any Demand for Arbitration to you at the contact information that Nikon has for you.
Special Rules in the arbitration proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor Nikon shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity, or in any other proceeding in which either you or Nikon proposes to act in a representative capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Accordingly, you and Nikon agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable, except for the prohibition on class, representative and private attorney general arbitrations.
13. CHOICE OF FORUM
You agree that any disputes, claims or controversies relating to the enforcement of any of Nikon’s intellectual property rights including without limitation the Trademarks, shall be filed, and that venue shall exist only in the state or federal courts located in Suffolk County, New York, and that you consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such disputes, claims or controversies.
IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN CONSUMER PROTECTION NOTICE SECTION 16 BELOW.
14. LIMITED TIME TO FILE CLAIMS
You agree that you will assert any Claim within one (1) year after the Claim arises, or such Claim will be barred.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 14.
15. ENFORCEABILITY, ENTIRE AGREEMENT, NO WAIVER
You agree that these Terms and Conditions of Use will be enforceable by us and our successors and assigns against you and your heirs, minors, successors, and assigns. You agree that if any provision within these Terms and Conditions of Use is found to be void or unenforceable, it will not affect the validity of the balance of these Terms and Conditions of Use, which shall remain valid and enforceable.
B. Entire Agreement
These Terms and Conditions of Use and any additions, changes, edits and/or revisions made thereto by Nikon, constitute the entire agreement between you and Nikon and supersede in their entirety any and all written or oral agreements previously existing between you and Nikon.
C. No Waiver
Neither these Terms and Conditions of Use nor any provisions hereof may be modified, waived, amended, supplemented or discharged except by a document in writing signed by Nikon, or as otherwise permitted herein. The failure to enforce at any time any of the provisions of these Terms and Conditions of Use shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of these Terms and Conditions of Use or the right thereafter to enforce one or more of the provisions thereof. No waiver by either you or Nikon, whether expressed or implied, of any provision of these Terms and Conditions of Use and any additions, changes, edits and/or modifications made by Nikon, or any breach thereof, shall constitute a continuing waiver of such provision or a waiver of any other provision of these Terms and Conditions of Use.
16. 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 2, 7, 8, 11, 13 AND 14 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. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL MODIFY SUBSECTION 12.B. (“FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER”).