END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a legal agreement between You (either an individual or an entity, who will be referred to in this Agreement as “you" or “your”) and Artec Europe S.a r.l. and/or its affiliates (“Artec”) for the use of Artec’s software program being installed by you on your device, and related documentation (“Software”). The Software also includes any software updates and upgrades that Artec may provide to you or make available to you, or that you obtain after the date you obtain your initial copy of the Software, to the extent that such items are not accompanied by a separate License agreement. BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU HAVE NO RIGHTS TO THE SOFTWARE AND SHOULD NOT INSTALL, DOWNLOAD, ACCESS OR USE THE SOFTWARE.
1. License Grant. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, Artec hereby grants to you, and you accept, a limited, non-exclusive, non-transferrable, revocable license to download, install and use one (1) copy of the Software in object code format, only on your personal computer or mobile device, if applicable, (the “Device”) for the sole function of personally using for entertainment purposes, only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by Artec. Notwithstanding the foregoing, Artec shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
2. Ownership. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software includes trade secrets and information that is confidential and proprietary to Artec and you agree to take all necessary actions to protect the confidentiality of such information. All ownership rights in the Software, including any related documentation and any new releases, modifications, and enhancements thereto belong solely to Artec and its licensors, if any, including all intellectual property rights therein. The Software is licensed, not sold. Title does not pass to you. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, service mark, invention or other intellectual property right. Artec hereby expressly reserves all rights in the Software which are not expressly granted to you hereunder. All software that is not owned by Artec is proprietary to and protected by its titleholder.
4. Additional Restrictions. You further represent that you shall not (i) use the Software for any illegal or unauthorized purpose, (ii) to commercially exploit the Software, (iii) use the Software in any manner which could damage, disable, overburden or impair any of its items, (iv) use the Software in a manner which could endanger your well-being or the well-being of others, (v) transmit worms, viruses or any code of a destructive nature, (vi) display, transmit or share any content consisting of objects or any type of materials, information or communications (“Content”) deemed hateful, threatening, pornographic, obscene, abusive, racially or ethnically offensive, libelous or defamatory, or any Content that encourages conduct that would be considered a criminal offense or bring forth civil liability, (v) attempt to hack, destabilize or adapt the Software (or its source code), or alter any website or a mobile application, if applicable, so as to falsely imply that it is affiliated with Artec. By installing, downloading, accessing or using the Software You acknowledge and agree that all objects made by you through and/or using the Software and the Device will automatically be uploaded to Artec’s server. The Software is intended to be used only with Microsoft Kinect for Windows.
5. Third Parties. The Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Software falls under the scope of this Agreement. Any Open Source Software that may be accompanying the Software is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein "Open Source Software" mean open source software components provided with the Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Software. This Agreement does not apply to any Open Source Software accompanying the Software and Artec hereby disclaims any and all liability to you or any third party related thereto.
6. New Versions of the Software. Artec, in its sole discretion, reserves the right to add additional features or functions, or to modify or provide programming fixes, updates and upgrades, to the Software. Artec has no obligation to make available to you any modifications, updates, support, maintenance or subsequent versions of the Software. You may have to agree to a renewed version of this Agreement in the event you want to download, install or use any modifications, updates or new versions of the Software. You acknowledge that Artec may automatically issue any modifications, updates or upgraded versions of the Software and, accordingly, may modify, update or upgrade the version of the Software that you are using or have installed on your Device. You hereby agree that your Device may automatically request and/or receive such modifications, upgrades or updates.
7. Disclaimer of Warranties.
7.1. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
7.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KINDS AND ARTEC HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.3. ARTEC DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE OR APPLICATIONS. YOU EXPRESSLY AGREE TO HOLD ARTEC HARMLESS FROM ANY DAMAGE THAT MAY ARISE FROM THE USE OF THE SOFTWARE WITH OTHER THIRD PARTY SOFTWARE OR HARDWARE.
7.4. YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, ARTEC, ITS LICENSORS, ITS PARTNERS, AND ITS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS AND SUPPLIERS (INCLUDING ARTEC, COLLECTIVELY THE “ARTEC PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LIABILITY, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF (A) YOUR VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) YOUR VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) YOUR USE OR MISUSE OF THE SOFTWARE. Artec reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Artec, and you agree to cooperate with Artec’s defense of these claims. You agree not to settle any matter without the prior written consent of Artec.
7.5. LIMITATION OF LIABILITY AND DAMAGES. IN NO EVENT SHALL THE ARTEC PARTIES BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR ANY LOSSES, LIABILITIES, CLAIMS OR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR ANY OTHER DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THIS AGREEMENT OR THE PERFORMANCE, SUSPENSION, TERMINATION OR BREACH HEREOF, EVEN IF ARTEC OR ANY OTHER ARTEC PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE ARTEC PARTIES SHALL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT OR USE OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ARTEC’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE DOLLAR ($1.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR ARTEC SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN ARTEC AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE ARTEC SERVICES. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ARTEC ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE ARTEC PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE ARTEC PARTIES.
7.6. YOU AND ARTEC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOFTWARE MUST COMMENCE WITHIN FIFTEEN (15) DAYS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
7.7. YOU ACKNOWLEDGE AND AGREE THAT ARTEC HAS OFFERED ITS SOFTWARE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ARTEC, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ARTEC. ARTEC WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
8. Termination. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until termination as provided herein (the “Term”). You may terminate your use of Software at any time by uninstalling and deleting the Software from all of your Devices.
Without limiting any other remedies, Artec may limit, suspend, discontinue or terminate this Agreement and/or your use of all or any part of the Software, with immediate effect, in its sole discretion, automatically, with or without notice and without recourse to the courts, for any reason or for no reason, including without limitation if Artec believes that you are (i) in breach of any of the terms of this Agreement, (ii) creating problems or legal liabilities (actual or potential), (iii) infringing a third party’s intellectual property rights, or (v) engaging in fraudulent, immoral or illegal activities.
Artec shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Software upon reasonable notice. If you do not accept amendments made to this agreement, then this Agreement will be immediately terminated pursuant to this Section 8.
9.1 This Agreement is a complete statement of the agreement between you and Artec, and sets forth the entire liability of Artec and your exclusive remedy with respect to the Software and its use. The agents, employees, VARs, distributors, and dealers of Artec are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Artec. Any waiver of the terms herein by Artec must be in a writing signed by an authorized officer of Artec and expressly referencing the applicable provisions of this Agreement.
9.2 If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable but only to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. No term or provision in the Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach. No modifications or amendments to this Agreement will be binding upon Artec unless made in writing and duly executed by you and an authorized representative of Artec.
9.3 This Agreement is governed by the laws of Luxembourg. You irrevocably consent to the exclusive jurisdiction and venue of the courts in Luxembourg for all disputes arising out of or relating to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in Luxembourg City.
9.4 Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement does not limit any rights that Artec may have under trade secret, copyright, patent or other laws.
9.5 You may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Artec’s prior express written consent.
9.6 By using the Software, if you are located in the European Union, then you understand and consent to the processing of personal information outside of the European Union, including the USA, where privacy controls may be less stringent than in the European Union.
9.7 You hereby affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with the terms and conditions this Agreement.