Last revised: September 2024 (v1.5)
This Terms of Use (“TOU”) is a legal agreement between you (either an individual or a single entity, collectively referred to as “You” or “Your”), the End-User, and NEX Team Inc. (“Nex”), for Nex’s hardware product(s) including but not limited to the video game console currently named “Nex Playground” and associated peripherals and connected devices (collectively, the “Hardware”). By operating or otherwise using the Hardware, you agree to be bound by the terms of this TOU. If you do not agree to the terms of this TOU, you may not operate or use the Hardware. You agree that your operation or use of the Hardware acknowledges that you have read this TOU, understand it, and agree to be bound by its terms and conditions. The terms “we”, “us”, and “Nex” refer to NEX Team Inc., and its affiliates.
1. GENERAL
The terms of this TOU will govern the Hardware, as defined below, in association with the documentation that accompanies the Hardware. This TOU hereby incorporates by reference the documentation that accompanies the Hardware. The Hardware, whether it is sold to you by Nex or any other party, may only be used under the terms of this TOU. The Hardware may contain software, media, source code and assets that are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, and which are governed by a separate end user license agreement.
2. HARDWARE
The Hardware, as used in this TOU, includes:
(a) Nex Playground which is configured for storing, executing and playing video games; and
(b) Any and all components, attachments, peripherals, cords and devices with which this Nex Playground is provided or delivered.
3. NON-CIRCUMVENT AND LIMITATIONS OF USE
3.1 You hereby expressly agree not to circumvent any technological measures that effectively controls access to the Hardware, wherein circumventing includes any means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure. You further hereby expressly agree not to reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any portion of the Hardware, in whole or in part, to which access is controlled by a technological measure. In the event that any of the prohibited activities above are permitted by applicable law, any information you, or your authorized agent, discover shall be promptly disclosed to Nex and shall be deemed the confidential information of Nex.
3.2 You shall not use the Hardware at any time, directly or indirectly, for any of the following activities:
(a) Using the Hardware in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(b) Using the Hardware to post or send any unlawful, infringing, threatening, defamatory, libelous, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability or otherwise violate any law.
(c) Taking any action that imposes or may impose an unreasonable or disproportionately large load on Nex’s network infrastructure, as determined by Nex in its sole discretion.
(d) Bypassing any measures Nex may use to prevent or restrict access to the Hardware or any of its components.
4. ONE-YEAR LIMITED WARRANTY
Nex provides a limited warranty on the Hardware, as governed by a warranty document (“Warranty”) available on Nex’s web site (see https://nex.fun/warranty). Nex reserves the right to change the terms and conditions contained in this Warranty, at any time and in our sole discretion. Any changes to the Warranty will be effective upon public posting of such revisions and without notice to you.
5. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
5.1 Nex reserves the right to release updates, patches, and fixes (collectively, “Updates”) for Nex Playground and its associated applications, which may introduce new features, enhancements, bug fixes, performance improvements, and security patches. Some Updates may be deemed mandatory by Nex for optimal performance, security, and compatibility, requiring users to install them to access certain functionalities or online services. By using Nex Playground, You agree that Nex may automatically download and install Updates without prior notification, although settings might be available to adjust this feature. Nonetheless, users who refrain from installing certain non-mandatory Updates might find access to specific features or services restricted. While every effort is made to ensure the quality of Updates, unforeseen issues or changes to system functionality might occur, and Nex does not guarantee Updates will be error-free or won’t affect performance. After you install Updates, you may continue to use Nex Playground in accordance with this TOU. Updates may be licensed to you by Nex with additional or different terms, as specified by the accompanying end user license agreement.
5.2 For optimal functionality of Nex Playground, an active Internet connection and account creation may be required. Internet connection is essential for updating the system software, downloading video games, and accessing or playing certain games, either in full or in part. You hereby expressly acknowledge that without a suitable Internet connection and/ or account creation, some features, games, or functionalities of Nex Playground might be limited or unavailable.
5.3 Users are expressly informed and acknowledge that Nex Playground is designed and permitted to: 1) play only those video games that are officially produced, licensed, or authorized by Nex, or its licensees or affiliates, and 2) operate only with those peripherals and connected devices that are officially produced, licensed, or authorized by Nex, or its licensees or affiliates. Any attempt to play games not originating from or approved by Nex, or its licensees or affiliates, or to couple peripherals and connected devices not originating from or approved by Nex, or its licensees or affiliates, may result in reduced functionality, system damage, voided warranty, or other potential repercussions. Usage of unauthorized games or peripherals and connected devices is at the user’s risk and responsibility. Under no circumstances will Nex have any liability for any injury, damage or pecuniary loss associated with the use of video games, peripherals and connected devices that are not officially produced, licensed, or authorized by Nex, or its licensees or affiliates.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Nex shall retain all right, title, and interest to any patent rights, trademark rights and copyrights embodied in the Hardware (the “Intellectual Property Rights”). End-User will not obtain any Intellectual Property Rights in the Hardware, as a result of its responsibilities hereunder.
6.2 Nothing in this TOU grants, by implication, waiver, estoppel or otherwise, to End-User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Intellectual Property Rights.
6.3 NEX, NEX PLAYGROUND and other marks on the Nex Playground are trademarks of Nex. All of the graphics, logos, page headers, button icons, scripts, and service names used on or in the Nex Playground are trademarks or trade dress of Nex. Said trademarks and trade dress may not be used in connection with any product or service that does not belong to Nex or is not directly related to Nex, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All other trademarks not owned by Nex that appear on or in the Hardware are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Nex.
7. U.S. GOVERNMENT END-USERS
The Hardware is a “Commercial Product,” as that term is defined at 48 C.F.R. § 2.101, as applicable. The Commercial Product, i.e., the Hardware, hereunder may be used by U.S. Government end-users (a) only as commercial items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
8. EXPORT LAW ASSURANCES
You may not use or otherwise export or reexport the Hardware except as authorized by United States law and the laws of the jurisdiction in which the Hardware was obtained. In particular, but without limitation, the Hardware may not be exported or reexported (a) into (or to a nation or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By operating or using any component of the Hardware, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
9. ASSUMPTION OF RISK
You accept for use “as is” the Hardware and accept full responsibility for interacting or playing with the Hardware. You understand and are aware of the risks associated with interacting or playing with the Hardware and that it may be a risky activity. You understand that interacting or playing with the Hardware involves a risk of injury to any and all parts of Your body, and a risk of damage to Your property. You hereby agree to freely and expressly assume and accept all risks of injury to Yourself and all risks of damage to Your property while using the Hardware.
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE HARDWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE LIMITED WARRANTY DESCRIBED ABOVE NOTWITHSTANDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HARDWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NEX HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE HARDWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR THAT AGAINST HIDDEN OR LATENT DEFECTS. NEX DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE HARDWARE, THAT THE FUNCTIONS CONTAINED IN THE HARDWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE HARDWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEX OR A NEX AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE HARDWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN SO FAR AS ANY WARRANTIES CANNOT BE DISCLAIMED, 1) NEX LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THE ONE-YEAR LIMITED WARRANTY DESCRIBED ABOVE AND THE REPAIR OR REPLACEMENT SERVICES DESCRIBED THEREIN, AND/OR 2) NEX LIMITS THE SCOPE AND DURATION OF SUCH WARRANTIES TO BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEX, ITS AFFILIATES OR LICENSEES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE HARDWARE, WHETHER IT WAS OR WAS NOT USED ACCORDING TO THIS TOU, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF NEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, NEX’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS TOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE HARDWARE. THIS ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION
This TOU shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This TOU will be governed by and construed in accordance with the internal laws of the State of California of the United States of America without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California of the United States of America. Any legal suit, action, or proceeding arising out of or related to this TOU or the rights granted hereunder will be instituted in the federal courts of the United States or the courts of Santa Clara County of the State of California of the United States of America, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
13. SEVERABILITY
If any provision of this TOU is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this TOU or invalidate or render unenforceable such term or provision in any other jurisdiction.
14. ENTIRE AGREEMENT
This TOU constitutes the sole and entire agreement with respect to the subject matter of this TOU and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
15. AMENDMENTS/NOTICE OF CHANGES
Nex reserves the right to change the terms and conditions contained in this TOU, or any policies or guidelines governing the Hardware it provides, including without limitation, any of the information posted on the Hardware, at any time and in our sole discretion. The latest version of this TOU is posted at https://nex.fun/npgtou . Any changes to the TOU, including terms and conditions, or policies and guidelines referenced in this TOU, will be effective upon public posting of such revisions and without notice to you. We will, however, post a notice of any changes to this TOU on the Nex’s web site after the changes are effective. You are responsible for regularly reviewing the Nex’s web site for changes and notice of any changes. Changes to referenced policies and guidelines or any other information in the TOU may be posted without any other notice to you. YOUR CONTINUED USE OF THE HARDWARE AND ITS SERVICES FOLLOWING OUR POSTING OF ANY CHANGES TO THE TOU ON THE NEX’S WEB SITE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS TOU, DO NOT CONTINUE TO USE THE HARDWARE OR ITS SERVICES.
16. CLASS ACTION WAIVER
READ THE FOLLOWING CLASS ACTION WAIVER AGREEMENT CAREFULLY. IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES AS A MEMBER OF A CLASS. EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT. You expressly waive any right you may have to bring or participate in a claim as a class, collective or representative proceeding in court or before an arbitrator against Nex and/or its affiliated entities. Further, unless both we agree in writing, the arbitrator may not consolidate your claim with another person's claim and may not otherwise preside over any form of a representative or class proceeding.
17. ARBITRATION, GOVERNING LAW AND FORUM
Any controversy, claim or dispute arising out of this TOU or the use, viewing or access to the Hardware shall be settled by arbitration, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Venue for any arbitration proceeding shall be the State of California of the United States of America, unless otherwise agreed by the parties or ordered by the arbitrator. The arbitrator shall award attorney’s fees and costs to the prevailing party in any arbitration proceeding.
This TOU is governed by and shall be construed in accordance with the laws of the United States of America, without regard to its principles of conflicts of law. To the extent the arbitration provision above is held invalid or unenforceable, the courts located in the State of California of the United States of America shall have exclusive jurisdiction over any controversy, claim or dispute arising out of this TOU or the use, viewing or access to the Hardware, and you agree to waive any jurisdictional, venue, or inconvenient forum objections to said courts.
18. CONTACT
For any enquiries/ issues related to this TOU, you may contact us by writing to us at the following address:
NEX Team Inc.
333 W San Carlos St., Suite 600
San Jose, CA 95110
Email: playground-help@nex.inc