2. Ability to Accept Terms. The Site is not intended for individuals under the age of 18 years. If you are under 18 years please do not use the Site or register an Account (defined below). If it comes to our attention through reliable means that a registered user is under the age of 18 years, we may, to the extent applicable, cancel that user’s Account and/or access to the Site.
3. Site Access and Use. We hereby grant you permission to access and use the Site, provided that you comply with these Terms and applicable law and do not: (i) copy, distribute or modify any part of the Site without our prior written authorization; (ii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content, except as expressly authorized herein; (iii) disrupt servers or networks connected to the Site; (iv) use or launch any automated system (including without limitation, “robots” and “spiders”) to access the Site; (v) transmit any Content which contains software viruses, or other harmful computer code, files or programs; (vi) use or launch any automated system (including without limitation, “robots” and “spiders”) to access the Site; (vii) collect or harvest any personally identifiable information, including account names or e-mail addresses, from the Site; (viii) circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Site; and/or (ix) use the communications systems provided by the Site to send unauthorized commercial communications. PrimeSense reserves all rights not expressly granted in and to the Site.
4. Account. In order to use some of the services of the Site, you may have to create an account (an “Account“). You agree not to create an Account for anyone else or use the account of another without their permission. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify PrimeSense immediately of any breach of security or unauthorized use of your Account. As between you and PrimeSense, you are solely responsible and liable for the activity that occurs in connection with your Account. You may delete your Account at any time by following the options within Site.
5. Software and Applications.
5.1. Software. You acknowledge and agree that (i) any software and related documentation that you may be able to access, download and use via the Site (collectively, “Software”) is the copyrighted work of PrimeSense or its licensors; and (ii) your accessing, downloading and use of Software is subject to and governed by the terms and conditions of the related software license agreement, which you agree to read prior to downloading or using the Software and abide by (“Software Agreement“). To the extent of any inconsistency or conflict between these Terms and any Software Agreement, the Software Agreement shall prevail. Unless the Software is separately referred to herein, all references to the Site in this Agreement shall include the Software.
5.2. OpenNI Arena.
(i) We provide certain software application hosting services on the Site (“Hosting Services“) whereby Site users may access, download, run and use software applications that have been uploaded or submitted to the Site by other Site users, or by PrimeSense (each an “Application“). If you choose to participate in the Hosting Service, whether by submitting an Application or by downloading, accessing, or using an Application, then you acknowledge and agree that (i) each App is the copyrighted work of the App developer, or its licensors; and (ii) your participation in the Hosting Services may be subject to and governed by, as applicable, our developer terms and conditions or our end user license agreement (“Application Agreement“). To the extent of any inconsistency or conflict between these Terms and any Application Agreement, the Application Agreement shall prevail. Unless an Application is separately referred to herein, all references to a User Submission (defined below) in this Agreement shall include the Application. All references herein to the Site shall include the Hosting Service.
(ii) In order to participate in the Hosting Services you may first need to register an Account.
(iii) If you submit an Application to be hosted on the Site you acknowledge and agree that the Application will be made available to other Site users to access, download and use, and that PrimeSense is not responsible or liable to you or any third party for any use, or misuse, of the Application by a Site user or any third party.
(iv) If you are accessing, downloading, and/or using a third party developer Application you acknowledge and agree that (a) PrimeSense is not the developer or owner of the Application; (b) your use of the Application is at your own risk, (c) notwithstanding any other provision in these Terms, PrimeSense does not make any representation or warranty with respect to the Application; and (d) you shall waive, and hereby do waive, any legal or equitable rights or remedies you may have against PrimeSense with respect to your use, or inability to use, an Application.
6. Intellectual Property Rights. The content on the Site and the text, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, services, as well as Software, Applications, and User Submissions (collectively, the “Content“) and the trademarks, service marks and logos contained therein (“Marks“), are the property of PrimeSense and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. We reserve all rights not expressly granted in and to the Site and the Content. Content on the Site is provided to you for your information and personal use only and may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. “PrimeSense”, the PrimeSense logo, “NITE”, “OpenNI”, “Natural Interaction” and other marks are Marks of PrimeSense or its affiliates. All other trademarks, service marks, and logos used on the Site are the trademarks, service marks, or logos of their respective owners.
7. User Submissions.
7.1. Responsibility. The Service permits the submission, hosting, sharing and publishing of Content (including, without limitation, Applications) by you and other users (“User Submissions“). You understand that whether or not such User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your User Submissions and the consequences of posting, publishing or uploading them. We have complete discretion whether to publish your User Submissions and we reserve the right in our sole discretion and without further notice to you, to monitor, censor, edit, remove, delete, and/or remove any and all Content posted on the Site (including User Submissions) at any time and for any reason.
7.2. Ownership. You represent and warrant that you own or have the necessary rights and permissions to use and authorize PrimeSense to use all Intellectual Property Rights (defined below) in and to your User Submissions, and to enable inclusion and use thereof as contemplated by the Site and these Terms. “Intellectual Property Rights” means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic. You retain all of your ownership rights in yourUser Submissions. Unless User Submissions are separately referred to, all references herein to Content shall include references to User Submissions.
7.3. License to User Submissions. By submitting the User Submissions to PrimeSense, you hereby grant PrimeSense a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicenseable and transferable license to use, reproduce, distribute, display, and perform the User Submissions in connection with the Site and PrimeSense’s business, including without limitation for redistributing part or all of your User Submissions in any media formats and through any media channels and, and you hereby waive any moral rights in your User Submissions, to the extent permitted by law. You also hereby grant each user of the Site or other viewer or user of the User Submission a non-exclusive right to use, reproduce, distribute, display and perform such User Submissions, all in accordance with these Terms.
7.4. Prohibited Content. You agree that you will not display, post, submit, publish, upload or transmit a User Submission that: (i) is unfair or deceptive under the consumer protection laws of any jurisdiction; (ii) is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) impersonates another person; (v) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (vi) is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise inappropriate; (vii) involves theft or terrorism; or (viii) is otherwise malicious or fraudulent.
7.5. Exposure. You understand and acknowledge that when accessing and using the Site (i) you will be exposed to User Submissions from a variety of sources, and that PrimeSense is not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (ii) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You hereby agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against PrimeSense with respect to (i) and (ii) herein.
7.6. Modification to/Deletion of a User Submission. You may modify or delete certain User Submissions that you posted on the Site by using the applicable tools provided within the Site. The notices and tools that we provide on the Site should help inform you which User Submissions may be modified or deleted.
7.7. Spam. You agree not to, and will not, use the communications systems provided by the Site to send unauthorized commercial communications and you shall be solely responsible and liable for any such unauthorized communications.
7.8. Disclosure. We reserve the right to access, read, preserve, and disclose any User Submissions (whether published or not) or any other information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including investigation of potential violations of it, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of PrimeSense, its users or the public.
8. Copyright and Content Policy. It is PrimeSense’s policy to respect the legitimate rights of copyright and other intellectual property owners, and we will respond to clear notices of alleged copyright infringement in accordance with our Copyright and Content Policy which may be viewed at: www.openni.org\copyright (“Copyright Notice“).
10.2. PrimeSense permits you to link to the Site provided that (i) you link to but do not replicate any page on this Site; (ii) the hyperlink text shall accurately describe the Content as it appears on the Site; (iii) you shall not misrepresent your relationship with PrimeSense or present any false information about PrimeSense and shall not imply in any way that we are endorsing any services or products, unless we have given you our express prior consent; (iv) you shall not link from a website that you do not own; (v) your website, and domain name, does not contain content that (a) is offensive or controversial (both at our discretion), or (b) infringes any intellectual property, privacy rights, or other rights of any person or entity; and/or (vi) you, and your website, comply with these Terms and applicable law.
11. Information Description. We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the Site (including, without limitation, any pricing) is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content. Your use of the Content, or any part thereof, is made solely at your own risk and responsibility.
12. Warranty Disclaimers.
12.1. This section applies whether or not the services provided under the Site are for payment. Applicable law may not allow the exclusion of certain warranties, so to that extent certain exclusions set forth herein may not apply. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. PRIMESENSE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. PRIMESENSE DOES NOT GUARANTEE THAT THE SITE WILL BE FREE OF BUGS, SECURITY BREACHES, OR VIRUS ATTACKS. THE SITE MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT PRIMESENSE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS. WE DO NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT IS FEATURED OR ADVERTISED ON THE SITE BY A THIRD PARTY.
12.2. PRIMESENSE DOES NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT APPEARS IN A USER SUBMISSION OR THAT IS FEATURED OR ADVERTISED ON, OR FACILITATED VIA, THE SITE BY A THIRD PARTY. YOUR RELIANCE OR USE OF ANY SUCH CONTENT, SOFTWARE, PRODUCT OR SERVICE IS ENTIRELY AT YOUR RISK. YOU SPECIFICALLY ACKNOWLEDGE THAT PRIMESENSE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE CONDUCT (INCLUDING DEFAMATORY, OFFENSIVE, ILLEGAL, OR NEGLIGENT CONDUCT) OF ANY OTHER SITE USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTION WITH OTHER SITE USERS. IF YOU HAVE A DISPUTE WITH ANY SUCH USER, YOU AGREE THAT PRIMESENSE IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. PRIMESENSE RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
13. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL PRIMESENSE OR OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS, BE LIABLE FOR ANY LOSS OF MONEY, GOODWILL, REPUTATION, SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO: LOST PROFITS OR REVENUE, LOSS OF DATA, INABILITY TO ACCESS OR USE THE SITE, OR LOSS OF BUSINESS) THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE EVEN IF PRIMESENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW YOU AGREE THAT PRIMESENSE’S TOTAL LIABILITY FOR ALL DAMAGES AND LOSSES SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNT (IF ANY) PAID BY YOU TO PRIMESENSE FOR USING THE SITE WITHIN THE THREE (3) MONTHS PRECEDING THE DATE GIVING RISE TO SAID CLAIM; OR (II) ONE HUNDRED U.S. DOLLARS (US$100). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations may not apply to you.
14. Indemnity. You agree to defend, indemnify and hold harmless PrimeSense and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Site; (ii) your violation of the Site Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) your interaction with another Site user; or (v) any claim that one of your User Submissions caused damage to a third party.
15. Term and Termination. These Terms are effective until terminated by PrimeSense or you. PrimeSense, in its sole discretion, has the right to terminate your access to the Site, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of the Site Terms). PrimeSense shall not be liable to you or any third party for termination of the Site, or any part thereof. If you object to any term or condition of the Site Terms, or any subsequent modifications thereto, or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue use of the Site. Upon termination of these Terms, you shall cease all use of the Site.
16. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by PrimeSense without restriction or notification to you.
17. General. PrimeSense reserves the right to discontinue or modify any aspect of the Site at any time. The Site Terms and the relationship between you and PrimeSense shall be governed by and construed in accordance with the laws of the State of New York, without regard to its principles of conflict of laws. You agree to submit to the personal and exclusive jurisdiction of the competent state and federal courts located in New York, New York and waive any jurisdictional, venue, or inconvenient forum objections to such courts, provided that PrimeSense may seek injunctive relief in any court of competent jurisdiction. This Section 17 and Sections 5.1 (Software), 6 (Intellectual Property Rights), 7.3 (License to User Submissions), 8 (Copyright and Content Policy), 9 (Privacy), 12 (Warranty Disclaimers), 13 (Limitation of Liability) and 14 (Indemnity) shall survive termination of these Terms. The Site Terms shall constitute the entire agreement between you and PrimeSense concerning the Site. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.