So nobody has any other ideas what could be wrong? I mean the temps look ok, idle its only 36 degrees according to Speedfan. i've take it out and plugged it back in again after blowing dust out the slots.
If out of the box its not running properly on all games, RMA.
I just bought a GTX 260 and it has some issues if I touched the clock. I took the cooler off and put some good paste on it and the temps really didn't change but it must transfer heat better because I don't have the issues.
If at the factory settings it has issues, it could be bad. I'd RMA to be safe. Unless you want to try and regoop it if you have paste. if you don't just mail it back.