Last updated: February 24, 2017
THE AGREEMENT CAN BE ACCEPTED ONLY BY AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH GWMT IS USED. If you are under the legal age of majority, you must ask your parent or legal guardian to consent to the Agreement. By clicking the ACCEPT button yourself, you affirm that you have reached the legal age of majority and you accept the Agreement. You also affirm that you are accepting the Agreement on behalf of, and all legal and financial responsibility and liability for the actions of your permitted users, if applicable, and you hereby expressly ratify and confirm any acts of your permitted users of GWMT.
You must use GWMT in accordance with the laws of where you are located. In some countries there are restrictions on the download and use of GWMT. It is your responsibility to ensure that you are legally allowed to use GWMT where you are located.
a. Service Scope of Use. GWMT is made available for access and use through your compatible device only. Subject to your compliance with all terms specified for the use of GWMT, NVIDIA grants you a non-exclusive, revocable, non-transferable, non-sublicensable, personal use license, while you remain a registered user in compliance with the Agreement, to access and use GWMT to view and modify your images or other content that you separately obtain (collectively, the "Content") through the GWMT application on your device. Content must be in certain file formats in order to be uploaded to GWMT.
This personal use license specifically excludes the right to resell or commercialize GWMT to any third party, the right to use GWMT in any public presentation and any presentation by a place of public accommodation or other commercial establishment (e.g., a bar or restaurant), even if no fee is charged for viewing the Content on GWMT, without NVIDIA's prior permission.
b. Service Changes. NVIDIA may change, discontinue, or deprecate any part of the GWMT service (including the GWMT service as a whole) or change or remove features or functionality of GWMT, and your continued use of GWMT is deemed acceptance of such changes provided that such changes shall be applicable to GWMT users without singling you out.
c. Account and Password. You shall keep confidential and not share with any third person your NVIDIA account username and password. You are solely responsible for any activity (whether authorized by you or not) occurring from the use of your password or account. You agree to notify NVIDIA immediately of any unauthorized use on your NVIDIA account.
d. Restrictions. You may not copy, sell, rent, sublicense, transfer, modify, create derivative works, remove copyright or other proprietary notices, adapt, translate, reverse engineer, decompile, or disassemble any portion of GWMT, or provide any hosting services with GWMT (including, without limitation, as an application services provider or service bureau, by operating hosted/virtual system environments, by hosting, time sharing or providing any other type of services, or otherwise by means of the internet). You may not create any derivative works, attempt to create the source code from the object code, or download or use GWMT for any purpose other than as expressly permitted. You may not bypass, disable, or circumvent any encryption, security, digital rights management or authentication mechanism in GWMT, or use GWMT for any illegal purpose. GWMT is not licensed to you for resale, public performance, display, distribution or broadcast. Further, unless you have entered into a critical applications agreement with NVIDIA you shall not use GWMT with any system or application where the use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss including, without limitation, use in connection with any nuclear, avionics, navigation, military, medical, life support or other life critical application ("Critical Applications"). You acknowledge that NVIDIA does not design, test, manufacture or certify GWMT for use in the context of a Critical Application and NVIDIA shall not be liable to you or any third party, in whole or in part, for any claims or damages arising from such use. You acknowledge that certain third party providers and/or licensors are intended third party beneficiaries of the Agreement who have rights to enforce the Agreement against you or your permitted users.
e. Third Party Technology. GWMT may come bundled with or otherwise include or be distributed with third party software licensed by a NVIDIA supplier (including the operating system software) and open source software provided under an open source license (Open Source Software) (collectively, "Third Party Software"). Notwithstanding anything to the contrary herein, Third Party Software is licensed to you subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, click-through license or electronic license terms accepted at time of installation and any additional terms or agreements provided by the third party licensor ("Third Party License Terms"). Use of the Third Party Software by you shall be governed by the terms and conditions of such Third Party License Terms, or if no Third Party License Terms apply then the Third Party Software is provided to you as-is for use in or with GWMT and not otherwise used separately. If you breach Third Party License Terms, you shall, at your own expense defend, indemnify and hold harmless NVIDIA and its affiliates and their respective officers, directors, employees and agents from and against any claims, disputes, demands, liabilities, damages, losses, costs and expenses arising out of or in any way connected with your failure to comply with Third Party License Terms and/or infringement of any intellectual property rights in such Third Party Software.
With respect to services described to be in alpha, beta or preview stage, or otherwise to include pre-release software and materials ("Pre-Release Service") that you may access and use from time to time under the Agreement you acknowledge and agree that such Pre-Release Service (i) may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability, and reliability standards relative to commercially provided NVIDIA services, software and materials, and (ii) use of such Pre-Release Service may result in unexpected results, loss of data, project delays or other unpredictable damage or loss. THEREFORE, A PRE-RELEASE SERVICE IS NOT INTENDED FOR USE, AND SHOULD NOT BE USED, IN PRODUCTION OR BUSINESS-CRITICAL SYSTEMS OR APPLICATIONS. NVIDIA has no obligation to make available a commercial version of any Pre-Release Service and NVIDIA has the right to abandon development of a Pre-Release Service and terminate its availability at any time (in addition to the termination rights set forth below) without liability. It is recommended that you maintain full data backups when using a Pre-Release Service.
A number of factors may impact the quality of your communications and use of GWMT, and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply. Additionally, while using GWMT you may be able to save data, such as user generated application data, however in some cases such data may not function, synchronize or be saved as intended. NVIDIA takes no responsibility for the foregoing or any performance issues, hardware or software problems, your internet connectivity, your telecommunications access, your device or its compatibility with GWMT, your data loss, corruption or failure to save data, if data otherwise becomes unavailable for use with GWMT, or any other items over which NVIDIA has no control.
You acknowledge that GWMT may become inaccessible for periods of time or slow down for technical reasons, errors or bandwidth constraints, that you may be in the middle of using the service at the time of such timeout, inaccessibility or slowdown and be unable to initiate or to continue with such activity or GWMT usage, and that you may lose data or functionality (including file saves) as a result of such timeout, inaccessibility or slowdown. You will not be entitled to claim damages for such timeout, inaccessibility or slowdown.
Additionally, from time to time NVIDIA may need to perform maintenance on or upgrade the GWMT or the underlying infrastructure that enables you to use GWMT and NVIDIA may temporarily suspend or limit your use of some or all of GWMT until such time as this maintenance and/or upgrade can be completed. You will not be entitled to claim damages for such suspension or limitation of the use of GWMT for any maintenance and/or upgrade.
You acknowledge and agree that NVIDIA may, but is not obligated to, block, monitor or review communications or Content transmitted through GWMT and that NVIDA shall not be responsible for the content of any such communications or transmissions. You shall use GWMT and your Content on GWMT exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You shall not use GWMT or your Content on GWMT to transmit any bulk unsolicited communications, to store or transmit infringing, libelous, or otherwise unlawful or tortious material, to store or transmit material in violation of third party privacy or intellectual property rights, or to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs. You shall not interfere with or disrupt the security, integrity or performance of GWMT or of any Content, attempt to probe, scan or test the vulnerability of GWMT or any Content, or collect or store any personally identifiable information from GWMT from other users of GWMT or Content. You shall not restrict or inhibit any other users from using and enjoying GWMT, or harass other users of GWMT. You may not cheat or utilize any unauthorized robot, spider, or other program in connection with any online features of GWMT.
You represent that you either own the Content or have sufficient rights to use it in connection with GWMT. NVIDIA does not guarantee that all Content can be used with GWMT. When you obtain Content, the Content provider may require you to accept additional terms, open a user account and/or may charge you for the Content. NVIDIA does not endorse or assume any responsibility for any Content, including but not limited to information, materials, products, content or services that users upload for use with GWMT. GWMT is a cloud based offering and you hereby grant NVIDIA, its affiliates and its GWMT suppliers and service providers a non-exclusive, worldwide, limited license to access, view, use and display your Content in connection with the provision of GWMT to you and to modify or improve the GWMT underlying technology and service. YOU ACCEPT SOLE RESPONSIBILITY FOR AND ASSUME ALL RISK ARISING FROM YOUR USE OF CONTENT IN YOUR GWMT ACCOUNT AND FOR ANY DAMAGE TO YOUR DEVICE OR NETWORK OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF SUCH CONTENT. YOU EXPRESSLY RELEASE, INDEMNIFY, AND HOLD NVIDIA AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS OR LIABILITY ARISING FROM THE CONTENT IN YOUR GWMT ACCOUNT.
a. Suspension. NVIDIA may suspend or restrict you or any of your permitted user's right to access or use any portion or all of GWMT at its discretion, including if you are, or any permitted user is, in breach of the Agreement, or if NVIDIA reasonably suspects or determines that your or a permitted user's use of or registration for GWMT (i) poses a security risk to the GWMT service or any third party, (ii) may adversely impact the GWMT service or the systems or Content of any other GWMT user, (iii) may subject NVIDIA, its affiliates, or any third party to liability, or (iv) may be unlawful or fraudulent.
b. Termination. Your rights under the Agreement (a) terminate automatically without notice from NVIDIA if you fail to comply with the Agreement or engage in illegal or improper use of GWMT, or (b) terminate for convenience upon 30 days written notice from NVIDIA.
c. Effect of Suspension or Termination. The sole act of suspension or termination of access to GWMT, for any reason, will under no circumstances result in any liability for NVIDIA. Upon any termination, your access to GWMT will be discontinued. You acknowledge that NVIDIA has no obligation to store or return any data or Content stored, created or used by you in connection with GWMT, whether during or after the termination.
NVIDIA's servers automatically record and store certain information about how a person uses the NVIDIA website (NVIDIA refers to this information as "Log Data"). Log Data may include information such as a user's internet protocol (IP) address, browser type, internet services provider (ISP), referring/exit pages, operating system, date/time stamp and other statistics. NVIDIA uses this information to analyze trends, to administer the website, to track a user's movements around the website, to enhance a user's experience in using the website and to gather demographic information about NVIDIA's user base as a whole. NVIDIA may use a person's IP address to fight spam, malware and identity theft. NVIDIA may also use the IP address to generate aggregate, non-identifying information about how the website is used.
In connection with the receipt of the services you may receive access to links to third party websites and services and the availability of those links does not imply any endorsement by NVIDIA. NVIDIA encourages you to review the privacy statements on those sites and services that you choose to visit so that you can understand how they may collect, use and share personal information of individuals. NVIDIA is not responsible or liable for: (i) the availability or accuracy of such links; or (ii) the products, services or information available on or through such links; or (iii) the privacy statements or practices of sites and services controlled by other companies or organizations.
GWMT IS PROVIDED BY NVIDIA "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS," AND NVIDIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY NVIDIA ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. WITHOUT LIMITING THE FOREGOING, NVIDIA DOES NOT WARRANT THAT ACCESS TO GWMT WILL BE UNINTERRUPTED, THAT GWMT WILL MEET YOUR REQUIREMENTS, THAT GWMT WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT GWMT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NVIDIA'S OBLIGATIONS UNDER THE AGREEMENT ARE FOR THE BENEFIT OF YOU ONLY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR PERFORMANCE OF GWMT PROVIDED BY NVIDIA UNDER THE AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL NVIDIA'S TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THE AGREEMENT EXCEED TEN U.S. DOLLARS (U.S. $10). THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NVIDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. The disclaimers, exclusions and limitations of liability set forth in the Agreement form an essential basis of the bargain between the parties, and, absent any such disclaimers, exclusions or limitations of liability, the provisions of the Agreement, including, without limitation, the economic terms, would be substantially different.
The Agreement gives you specific legal rights. You may also have other rights which vary from state to state, and jurisdiction to jurisdiction. You hereby agree to all terms of the Agreement in the English language. The Agreement and all disputes that may arise from it or out of use of GWMT in interstate commerce shall be governed by the Federal Arbitration Act, in addition to the internal substantive laws of the State of Delaware, without regard to or application of its conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement and is expressly disclaimed. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which NVIDIA retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the binding arbitration section below.
For any claim against or dispute or controversy with NVIDIA relating to the Agreement or that may arise from it or out of your use of GWMT (collectively, "Disputes"), you agree to first contact NVIDIA by U.S. Mail at NVIDIA Corporation, ATTN: Legal, 2701 San Tomas Expressway, Santa Clara, California, 95050 and attempt to resolve the Dispute with NVIDIA informally. In the unlikely event that NVIDIA has not been able to resolve such Dispute it has with you within 60 days of your original informal claim (or sooner if, in NVIDIA's opinion, a Dispute is not likely to be resolved within 60 days), you and NVIDIA each agree to resolve any such Dispute (excluding any NVIDIA claims for injunctive or other equitable relief) by binding arbitration before an arbitrator from Judicial Mediation and Arbitration Services ("JAMS") located in Santa Clara County, California under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com and will require you to pay an initial filing fee of $250.00 (unless you successfully apply for a waiver of this fee from JAMS). All other JAMS costs associated with the arbitration will be borne by the party that loses the arbitration. The arbitration will be conducted in Santa Clara County, California (or the nearest JAMS Office to Santa Clara County), unless you request an in-person hearing in your hometown or you and NVIDIA agree otherwise. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party's data security, intellectual property rights, or other proprietary rights. If for any reason this agreement to arbitrate is found not to apply to a Dispute and as a result a Dispute proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Santa Clara County, California.
Class Action & Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION UNLESS SUCH ARBITRATION IS NECESSARY TO EFFECTUATE THE ENFORCEMENT OF THE COURT CLASS ACTION WAIVER OR IN THE EVENT THAT CLASS ARBITRATION IS EXPRESSLY AGREED TO BY NVIDIA. YOU AGREE THAT, BY ENTERING INTO THE AGREEMENT, YOU AND NVIDIA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Right to Opt Out. YOU MAY OPT OUT OF THE FOREGOING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION OF THE AGREEMENT BY NOTIFYING NVIDIA IN WRITING WITHIN 30 DAYS OF COMMENCEMENT OF USE OF GWMT UNDER THE AGREEMENT. SUCH WRITTEN NOTIFICATION MUST BE SENT TO ATTN: LEGAL, 2701 SAN TOMAS EXPRESSWAY, SANTA CLARA, CALIFORNIA, 95050 AND MUST INCLUDE (1) YOUR NAME, (2) YOUR ADDRESS, (3) THE REFERENCE TO GWMT FOR PC AS THE SERVICE THE NOTICE RELATES TO, AND (4) A CLEAR STATEMENT INDICATING THAT YOU DO NOT WISH TO RESOLVE DISPUTES THROUGH ARBITRATION AND DEMONSTRATING COMPLIANCE WITH THE 30 DAY TIME LIMIT TO OPT OUT.
The Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by NVIDIA without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
If NVIDIA needs to contact you about GWMT, you consent to receive the notices by email or through the service. You agree that any such notices that NVIDIA sends you electronically will satisfy any legal communication requirements. NVIDIA and its affiliates are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to NVIDIA or its affiliates ("Feedback"), including responses to questionnaires or through postings to GWMT, including the NVIDIA website and user interfaces, without further compensation, acknowledgement or payment to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving GWMT, and you hereby assign to NVIDIA any and all rights, including but not limited to intellectual property rights, in any Feedback you provide. In addition, you agree not to enforce any Moral Rights (as defined below) in and to the Feedback, to the extent permitted by applicable law. A "Moral Right" means any right to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right." If you send any Feedback, whether or not solicited, you do so with the understanding that no additional consideration of any sort will be provided to you, and you hereby irrevocably waive any claim against NVIDIA and its affiliates regarding the use of such Feedback, even if information, an idea, concept, technique or material is used that is substantially similar to the Feedback you sent.
You acknowledge that the software, technology and technical data provided by NVIDIA under the Agreement is subject to export control under the U.S. Export Administration Regulations (EAR) and economic sanctions regulations administered by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC). Therefore, you may not export, reexport or transfer in-country the software, technology and technical data without first obtaining any license or other approval that may be required by the Bureau of Industry and Security (BIS) and/or OFAC. You are responsible for any violation of the U.S. or other applicable export control or economic sanctions laws, regulations and requirements related to the software, technology and technical data. By accepting the Agreement, you confirm that you are not a resident or citizen of any country currently embargoed by the U.S. and that you are not otherwise prohibited from receiving the software, technology and technical data.
The software has been developed entirely at private expense. If the software is licensed to the United States government or any agency thereof, then the software will be deemed to be "commercial items" consisting of "commercial software" and "commercial software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable, provided with RESTRICTED RIGHTS. Contractor/manufacturer is NVIDIA, 2701 San Tomas Expressway, Santa Clara, CA 95050.
NVIDIA will not be liable for any delay or failure to perform any obligation under the Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
The Agreement, together with any amendments and any additional agreements you may enter into with NVIDIA in connection with GWMT, shall constitute the entire agreement between you and NVIDIA concerning GWMT. If any provision of the Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect.
No waiver of any term of the Agreement shall be deemed a further or continuing waiver of such term or any other term, and NVIDIA's failure to assert any right or provision under the Agreement shall not constitute a waiver of such right or provision.