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PowerA Gamer HQ End-User License Agreement

PowerA Gamer HQ
End-User License Agreement

(Revised 10/27/2022)

This End-User License Agreement (the “Agreement”) is a legal agreement between you (including your heirs, assigns, and successors) (collectively, “you,” “your”) and ACCO Brands Corporation and its affiliates (collectively, “ACCO,” “we,” “our” or “us”) governing your use of ACCO’s web-based service and/or mobile applications and/or software (“ACCO Service and Application” defined in greater detail below). Please read this Agreement carefully. By clicking the “Get,” “Buy,” “Install,” “Download,” or similar button in the respective online store such as the Apple App Store, Google Play Store, or Microsoft Store, and/or downloading, and/or using the ACCO Service and Application, you represent that you have read, understand, and agree to be bound by this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ACCO SERVICE AND APPLICATION.

  1. Representation and Warranties

    You represent and warrant to us that: (a) you are at least sixteen (16) years of age or have the consent of a parent or legal guardian to enter this Agreement; (b) you are eligible to use the ACCO Service and Application and have the right, power, and ability to enter into and perform under this Agreement on behalf of yourself or your business; (c) you and all transactions initiated by you will comply with all federal, state/provincial, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (d) you will not use the ACCO Service and Application, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the ACCO Service and Application; and (e) your use of the ACCO Service and Application will be in compliance with this Agreement.

  2. Definitions

    “Application” and “ACCO Application” mean all applications and/or software running on personal computing devices, including, but not limited to, mobile devices, tablets, laptops, desktops, or wearable devices, including all built-in components and components provided via the Internet or other means, such as executable files, help files, demonstration files, example files, and other types of files; libraries, databases, samples, and accompanying materials (such as images, photographs, animated images, audio and video components and

    “Products” and “ACCO Products” mean all ACCO products including, but not limited to, Five Star, Mead, TruSens , Kensington, and PowerA brand products.

    “Service” and “ACCO Service” mean a web-based service that permits you to, among other things, upload, scan, store, organize, recognize, export, and manage text, images and data related to you or the ACCO Products.

    “User Content” means any data, information, or materials uploaded or provided by you (or other persons authorized by you) to use the ACCO Service and Application.

  3. Scope and Use of the ACCO Service and Application

    Subject to the restrictions in this Agreement, ACCO grants you a personal, worldwide, revocable, non-transferable, and non-exclusive license to use the ACCO Service and Application in connection with ACCO Products. You are permitted to install, use, display, or run the Application or use the Service on your end-device, including but not limited to a tablet, smart phone, scanner, and PC as well as other computer systems for non-commercial purposes. The ACCO Service and Application are to be used only in connection with ACCO Products. Use of the ACCO Service and Application with non-ACCO Products constitutes a violation of the terms of this Agreement.

  4. User Content

    While we have implemented various technical and organizational measures to protect personal data, no measures are foolproof.  For more details how ACCO processes personal data that it collects via the Application and Services, please refer to the ACCO Privacy Notice available at https://www.accobrands.com/privacy-policy/.

    If you provide User Content that contains personal data, you represent and warrant that such personal data has been collected in compliance with all applicable laws, including but not limited to, providing individuals with appropriate notices, ensuring an appropriate legal basis for the collection and processing of personal data, and compliance with all cross-border transfer requirements.  You are solely responsible for the User Content uploaded or provided to the ACCO Service and Application.

    Where you believe your use of the ACCO Service and Application results in ACCO being considered a data processor or the equivalent under applicable law, you are required to notify ACCO without undue delay so that you and ACCO may execute any legally required contract or other legal document necessary for the legal processing of personal data in the ACCO Service and Application.

    You bear sole responsibility for the accuracy, quality, completeness, legality, reliability, usability, and non-infringement of intellectual property and usage rights of User Content and any other data provided by you to the Service. You shall comply with all applicable local, public, national and international laws, contracts and regulations, and shall bear sole responsibility for the violation thereof, in respect of User Content, including laws, contracts, and regulations regarding copyright, confidentiality of data, international communication, and the transfer and dissemination of information, including without limitation technical and personal information. You shall indemnify ACCO and hold it harmless against all claims, legal proceedings, expenses, liabilities, and damages, including attorney’s fees, related to or arising from User Content.

  5. Conditions of Use and User Conduct

    As a condition of use, you agree to the following:

    • You may use the ACCO Service and Application provided you do not violate the terms of this Agreement.
    • You bear all risks and responsibilities related to your use of the Service.
    • You warrant that you have all the necessary rights and consents to transfer or upload User Content to the Service and that your doing so does not breach any applicable laws, rights of data subjects, and/or rights of a third party.
    • You must not use the Service to threaten, stalk, defraud, harass, impersonate, or intimidate any person or business.
    • You must not use the Service for any unauthorized purpose.
    • You must not transmit any bugs or viruses or any code of a destructive nature.
    • You shall not post or transmit any statement, material or content that is unlawful, obscene, indecent, libelous, pornographic, seditious, offensive, defamatory, threatening, abusive, liable to incite racial hatred, discriminatory, menacing, threatening, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or for which you have not obtained all necessary licenses and/or approvals or which may cause annoyance or inconvenience.
    • You also agree that any postings or transmissions you shall make shall not constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise be contrary to the law of, or infringe the rights of any third party enforceable in, any part of the world.
    • You must not collect or store personal data of others in violation of applicable legislation.
    • You must comply with all applicable laws in your jurisdiction (including but not limited to intellectual property laws).
    • You must not disrupt the normal operation of the Service.
    • You must not modify, adapt (including any changes for the purpose of enabling the Service to run on your hardware and software), or make any changes to the object code of the Application other than those provided for by the Service.
    • You acknowledge that your use of the Service may involve the transmission of private information via unsecure means.

    We are under no obligation to enforce the Agreement on your behalf against another user. While we encourage you to let us know if you believe another user has violated the user Agreement, we reserve the right to investigate and take appropriate action at our sole discretion.

  6. ACCO Intellectual Property

    All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “ACCO Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such ACCO Content, contained on the ACCO Service(s), Application, and/or Product(s) are owned, controlled, or licensed by or to ACCO, and is protected by trade dress, copyright, and trademark laws, and various other intellectual property rights. Except as expressly provided in this Agreement or otherwise permitted by law, no ACCO Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed (including by means of a digital audio transmission), encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for any purpose, without regard to whether that purpose is commercial or noncommercial in nature, without ACCO’s express prior written consent.

  7. Third-Party Services and Links

    Through the ACCO Service, you may be offered and/or given access to services, products, and promotions provided by third parties and not by ACCO (“Third-Party Services”). The inclusion of any ACCO name, logo, or similar mark on or associated with Third-Party Services does not imply an approval, endorsement, or recommendation by ACCO.

    You agree that you access any such Third-Party Service at your own risk, and that ACCO is not responsible for the performance of these Third Party Services or the acts or omissions of the entities that provide them. You agree that the use of the Third-Party Service is not governed by this Agreement or ACCO’s Privacy Notice. If you decide to access or use a Third-Party Service, you will be responsible for reviewing and understanding the terms and conditions and privacy policy associated with the Third-Party Service.

  8. Suspension and Termination

    You may terminate this Agreement at any time by closing your account and discontinuing your use of any and all parts of the ACCO Service or Application.

    ACCO may suspend or terminate your account or ability to use the ACCO Service, in whole or in part, at ACCO’s sole discretion, for any or no reason, and without notice or liability of any kind. For example, ACCO may terminate or suspend your account or ability to use the ACCO Service if you (a) have violated the terms of this Agreement or any other agreement you have with ACCO or ACCO’s policies, (b) pose an unacceptable credit or fraud risk to ACCO and/or other users, and/or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct via the ACCO Service. Any such termination or suspension could prevent you from accessing your account, the ACCO Service, your User Content, or any other related information.

    In the event of any termination, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the ACCO Service and Application, (c) that the license provided to you under this Agreement shall end, (d) that ACCO reserves the right (but shall have no obligation) to delete all of your information and account data stored on our servers, and (e) that ACCO shall not be liable to you or any third party for termination of access to the ACCO Service, or for deletion of your information or account data.

    ACCO will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the ACCO Service.

  9. Indemnification

    You agree to release, indemnify, defend, and hold harmless ACCO and its members, managers, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and their respective employees, officers, agents, directors, representatives, contractors, licensors, suppliers, and service providers from and against any and all third-party claims asserted against and of them, and all related costs, liabilities, legal fees, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) from any claim or demand made by any third party arising out of or relating to: (a) your access to or use of the ACCO Service and Application; (b) any actual or alleged breach by you of this Agreement; or (c) any actual or alleged violation by you, or any third party using your account, of the intellectual property, privacy, data protection or other third party rights.

    ACCO reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ACCO in asserting any available defense. You agree not to settle any matter without the prior written consent of ACCO. ACCO will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

  10. Disclaimer of Warranties and Conditions

    YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE ACCO SERVICE AND APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE ACCO SERVICE AND APPLICATION IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ACCO SERVICE AND APPLICATION IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCO OR THROUGH THE ACCO SERVICE AND APPLICATION WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ACCO, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT ANY CONTENT OR INFORMATION PROVIDED THROUGH THE ACCO SERVICE AND APPLICATION IS ACCURATE, RELIABLE, OR CORRECT; THAT THE ACCO SERVICE AND APPLICATION WILL MEET YOUR REQUIREMENTS; THAT THE ACCO SERVICE AND APPLICATION WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE ACCO SERVICE AND APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ACCO IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE ACCO SERVICE’S AND APPLICATION’S INOPERABILITY, UNAVAILABILITY, OR SECURITY VULNERABILITIES, OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF ANY CONTENT DOWNLOADED OR OTHERWISE MADE AVAILABLE THROUGH USE OF THE ACCO SERVICE AND APPLICATION. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE ACCO SERVICE AND APPLICATION, OR THE CONTENT OR SERVICES MADE AVAILABLE THROUGH THE ACCO SERVICE AND APPLICATION, SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF, THE ACCO SERVICE AND APPLICATION.

    ACCO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ACCO SERVICE AND APPLICATION OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ACCO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

  11. Limitation of Liability and Damages

    YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACCO, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE ACCO SERVICE AND APPLICATION. UNDER NO CIRCUMSTANCES WILL ACCO BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM AUTHORIZED OR UNAUTHORIZED ACCESS OR USE OF THE ACCO SERVICE AND APPLICATION, YOUR ACCO SERVICE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN, INCLUDING ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE ACCO SERVICE AND APPLICATION, YOUR ACCO SERVICE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACCO, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE ACCO SERVICE AND APPLICATION; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE ACCO SERVICE AND APPLICATION; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE ACCO SERVICE AND APPLICATION BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE ACCO SERVICE AND APPLICATION; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL ACCO, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $25.

    THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ACCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

  12. Dispute Resolution

    YOU HEREBY KNOWINGLY AND VOLUNTARILY AND IRREVOCABLY WAIVE YOUR RIGHT TO A TRIAL BY JURY and agree that if the a dispute should arise, then such dispute shall be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction.

    In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees.

  13. Exclusive Venue

    To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and ACCO agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Illinois, United States.

  14. Governing Law

    This Agreement shall be governed by the laws of the State of Illinois and the laws of the United States applicable therein. The courts of the State of Illinois shall have jurisdiction to entertain any action arising under this Agreement and the parties hereby accept and irrevocably submit to the jurisdiction of the said courts and acknowledge their competence and agree to be bound by any judgment thereof.

  15. Limitation on Time to Initiate a Dispute

    Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one (1) year after the cause of action accrues, or such claim or cause of action is forever barred.

  16. Right to Amend

    ACCO may, in our sole discretion, change or add to the terms of this Agreement at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the ACCO Service and Application. Any use of the ACCO Service and Application after publication of any such changes shall constitute your acceptance of this Agreement as modified. If you do not agree to any changes, you must stop using the ACCO Service and Application, and you can terminate your ACCO Service account. It is your obligation to ensure that you read, understand, and agree to the latest version of this Agreement.

  17. Force Majeure

    In the event ACCO is unable to perform its obligations or current modifications of obligations under the terms of this Agreement because of war, terrorism, earthquake, hurricane, plague, epidemic, pandemic, acts of government, acts of God, National Emergency, or other causes reasonably beyond its control, ACCO shall not be liable for damages to the other for any such failure to perform or otherwise from such causes.

  18. Assignment

    This Agreement, and any rights and licenses granted hereunder, may not be transferred, delegated, or assigned by you, but may be assigned, transferred or delegated by ACCO without restriction. This Agreement is binding on the parties and their successors and permitted assigns.

  19. Severability of Terms

    If any portion of this Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If ACCO does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights.

  20. Entire Agreement

    This Agreement is the whole legal agreement between you and ACCO. It governs your use of the ACCO Service and Application and completely replaces any prior agreements between you and ACCO with respect to the ACCO Service and Application.