Terms of Service 1. Definition. "You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this document. 2. Acceptance of Terms 2.1. Any use of OpenKapow software and any of its services (as defined below) at any time is subject to Kapow Technologies, Inc. (“Kapow”) then-current Terms of Service ("TOS"), which may be updated from time to time as set forth below. You may review the then-current TOS at any time at: http://openkapow.com/tos. Additionally, Your use of particular Services may be subject to specific guidelines or rules posted from time to time and incorporated by this reference into the TOS (“Service-specific Rules”). Your use of OpenKapow and/or its Services constitutes full acceptance of and agreement to the TOS; if You do not accept our TOS, You are not granted rights to use OpenKapow or any of its Services, as defined herein, and should refrain from accessing OpenKapow and its Services. 2.1.1. To update the TOS or any Service-specific Rules, Kapow will post both the modified version and its effective date at http://openkapow.com/tos. Concurrently, with any change to the core TOS, Kapow will email notice of the change to You and any known users at least fifteen (15) days (or such shorter or longer time as mandated by law or any judicial or government body) in advance. If Kapow changes any Service-specific Rules, Kapow will post the changed version on the location where those Service-specific Rules normally appear, reference the change on the primary page for that Service and include a link to the previous version of the rules. 2.2. Kapow reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, OpenKapow or any Service thereon (or any part thereof) with notice to users and the public as described above, or immediately in the event of technical difficulties. Kapow shall not be liable to You or third party for any such modification, suspension or discontinuance except as expressly provided herein. 3. Description of Services 3.1. OpenKapow is a website owned and operated by Kapow, for the purpose of hosting robots on the OpenKapow RoboServer™ to foster software development and content creation (the “Purpose”). OpenKapow currently offers registered users access to a rich collection of on-line resources for open source software/robot development and content creation, including various communications tools, RoboSuite™ integration tools, source code control and project management tools, online forums, message boards, community interaction and 3rd party developed services, (collectively, the "Services"). To use the Services, You must independently obtain access to the World Wide Web, either directly or through devices that access Web-based content, and complete the applicable registration as defined in Section 3 hereinbelow. 4. Registration Obligations 4.1. To register, You must: (a) provide true, accurate, current and complete information on the Service's registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that the user’s information is untrue, inaccurate, not current or incomplete, we may suspend or terminate Your account and prohibit any and all current or future use of the Services (or any portion thereof) by You other than as expressly provided herein. 4.2. You will receive a password and account designation upon completing the Service's registration process and are wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring thereunder. Kapow cannot and will not be liable for any loss or damage arising from the user’s failure to comply with this Section, including any loss or damage arising from Your failure to (a) immediately notify Kapow of any unauthorized use of Your password or account or any other breach of security and (b) ensure that the user exits from its account at the end of each session. 4.3. Usage Guidelines Kapow manages user Registration Data in accordance with the OpenKapow Privacy Policy accessible at http://openkapow.com/privacypolicy. 4.4. Content 4.4.1. All information, data, text, software, graphics, video, messages or any other materials whatsoever (collectively, "Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Content originated. This means that You, and not Kapow, is entirely responsible for all Content that You upload, post, email or otherwise transmit via OpenKapow or any Service. You shall not transmit Content or otherwise conduct or participate in any activities on OpenKapow and/or any Service which, in the opinion of Kapow's counsel, are prohibited by law in applicable jurisdictions, including laws governing the encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property. 4.4.2. Kapow will not pre-screen or review Content, but Kapow reserves the right to refuse or delete any Content of which it becomes aware which it reasonably deems not to fulfill the Purpose. In addition, Kapow shall have the right (but not the obligation) in its sole discretion to refuse or delete any Content which it reasonably considers to violate the TOS or be otherwise illegal. Kapow, in its sole and absolute discretion, may preserve Content and may also disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined necessary by us to protect the rights, property or personal safety of OpenKapow, its users and the public. Kapow does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Kapow be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via OpenKapow or any Service thereon. 4.4.3. By using OpenKapow or any Service, You may be exposed to Content that is offensive, indecent or objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. 4.5. 3rd Party Rights. You shall bear the burden of ensuring that Your use of OpenKapow software will not violate any 3rd party intellectual property rights or terms of service. Kapow reserves the right to immediately disable robots or terminate Your account access if Kapow directly or indirectly receives complaints of Your violation of any such 3rd party rights. Further, You agree to indemnify and hold Kapow and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any 3rd party due to or arising out of Content you submit, post, transmit or otherwise make available through the Service, your use of the Services, your connection to the Services, your violation of the TOS, or your violation of any rights of another. 4.6. Brand Feature License 4.6.1. For purposes of the TOS, "Brand Features" shall be defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. Kapow hereby grants to You a non-transferable, non-sublicenseable, non-exclusive license during the Term to display OpenKapow's Brand Features for the purpose of promoting or advertising that You are using the Service in accordance with this Section 4.d.i and for the purpose of fulfilling Your obligations under Section 4. d.ii below. You hereby grant to Kapow a non-transferable, non-exclusive license during the Term to use its Brand Features to advertise that You are using the Service. 4.6.2. In using Kapow Brand Features, You may not: 4.6.2.1. display an OpenKapow Brand Feature in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by OpenKapow, other than Your involvement in the Service, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Kapow or Kapow personnel; 4.6.2.2. use OpenKapow Brand Features to disparage Kapow, its products or services; 4.6.2.3. display an OpenKapow Brand Feature on Your site if it contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age; 4.6.2.4. display an OpenKapow Brand Feature as the most prominent element on any page of user’s website; 4.6.2.5. display an OpenKapow Brand Feature in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Kapow; 4.6.2.6. display an OpenKapow Brand Feature on a site that violates any law or regulation; or 4.6.2.7. remove, distort or alter any element of an OpenKapow Brand Feature (this includes squeezing, stretching, inverting, discoloring, etc.). 4.6.3. You understand and agree that Kapow has the sole discretion to determine whether your use of Kapow brand features is in accordance with the above restrictions. 4.6.4. Except as set forth in this Section 4, nothing in the TOS shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Brand Features. All use by You of OpenKapow's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Kapow. At no time during or after the Term shall You challenge or assist others to challenge the Brand Features of OpenKapow (except to the extent such restriction is prohibited by law) or the registration thereof by OpenKapow, nor shall You attempt to register any Brand Features (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of OpenKapow. 4.7. Attribution 4.7.1. The software provided to You through the Service may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of OpenKapow and its partners. You may not delete or in any manner alter these trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. 4.7.2. Any websites using the OpenKapow hosted service must provide a prominent attribution of OpenKapow’s Brand Feature on their site. 4.8. No Commercial Use. 4.8.1. You agree not to sell, resell or offer for any commercial purposes, any portion of the Services, use of the Services, or access to the Services. 4.8.2. OpenKapow is not intended for use by sites that monetize traffic, whether direct monetization through subscriptions or payments, or indirect monetization through advertising. 4.9. Other Use Restrictions. You agree, when using the Service, not to: 4.9.1.defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; 4.9.2.upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful Content; 4.9.3.upload, post, email or transmit or otherwise make available any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless You are the owner of the Rights or have the permission of the owner to post such Content; 4.9.4.upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms of Service or any applicable policies or guidelines. 4.9.5.download any file posted by another that You know, or reasonably should know, that cannot be legally distributed in such manner; 4.9.6.impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material; 4.9.7.restrict or inhibit any other user from using and enjoying the Services; 4.9.8.use the Services for any illegal or unauthorized purpose; 4.9.9.remove any copyright, trademark or other proprietary rights notices contained in or on the Services; 4.9.10. interfere with or disrupt the Services or servers or networks connected to OpenKapow services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; 4.9.11. use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information about users for any unauthorized purpose; 4.9.12. submit Content that falsely expresses or implies that such Content is sponsored or endorsed by Kapow; 4.9.13. create user accounts by automated means or under false or fraudulent pretenses; 4.9.14. promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or 4.9.15. transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature. 4.10. International Use. If You are an international user, You agree to comply with Your own local rules regarding online conduct and acceptable content, including laws regulating the export of data to the United States or Your country of residence. You agree to indemnify, defend and hold harmless each of OpenKapow and its affiliates and their respective officers, employees and agents, and any of OpenKapow’s website partners from any and all claims or demands, including reasonable attorneys' fees, made by any third party due to or arising out of Your acts or omissions regarding online conduct, content and export of any such content. 4.11. Rate Limits. Your use of the Services will be limited to a specific number of server requests per twenty-four (24) period as defined by Kapow’s rate limiting policy (please refer to http://openkapow.com/ratelimits.) Usage beyond these limits shall require You to upgrade to the enterprise version of RoboServer™. 5. No Support Requirements 5.1. Kapow may elect, but is no way obligated, to provide support for the Services. Kapow may change, suspend or discontinue its provision of support at any time and without notice. 5.2. The OpenKapow website shall include user forums and message boards to enable users to share information and assist one another with use of OpenKapow software and Services. In addition to its users, Kapow may post questions and answers to these forums and message boards. 6. General Practices Regarding Use and Storage 6.1. OpenKapow may establish general practices and limits concerning use of the Services, as defined by posted Service-specific Rules. While OpenKapow will use reasonable efforts to back up site data and make such data available in the event of loss or deletion, OpenKapow has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by any Service. OpenKapow reserves the right to mark as "inactive" and archive accounts and/or projects that are inactive for an extended period of time. OpenKapow reserves the right to change these general practices and Service Specific Rules at any time, in its sole discretion, with notice to users and the public as described in Section 1 above. 7. Term & Termination 7.1. The term of the TOS shall commence on the date upon which You agree to the TOS and shall continue in force thereafter, unless terminated as provided herein. 7.2. Your account and/or access to OpenKapow may be terminated for reasons that include, but are not limited to, the following: (i) violation of Terms of Service(s); (ii) abuse of site resources or attempt to gain unauthorized entry to the site or site resources; (iii) use of Service in a manner inconsistent with the Purpose; (iv) Your request for such termination; (v) requirement of applicable law, regulation, court or governing agency order or (vi) immediately for any reason without notice to You. 7.3. Kapow's termination of Your account and/or access to OpenKapow or any Service hereunder may be effected without notice and, on such termination, Kapow may immediately deactivate or delete Your account and/or bar any further access to such files, that Service or OpenKapow. Kapow shall not be liable to You or any other third party for any termination of Your access or account hereunder. 7.4. Notwithstanding the foregoing, unless prohibited by law or judicial or governmental order, Kapow shall make reasonable efforts to make available all information in Your account to that You prior to deleting that account or marking that account "inactive", including emailing to You fifteen (15) days prior notice of such termination and the location of Your information, and retaining all information for at least fifteen (15) days after emailing such notice. 8. Privacy Policy. OpenKapow’s collection and use of personal information is governed by Kapow’s Privacy Policy, available at http://www.openkapow.com/privacypolicy. You understand and agree that Kapow may access, preserve, and disclose Your personal information and the contents of Your account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property and/or safety of Kapow, its affiliates or the public. Personal information collected by OpenKapow may be stored and processed in the United States or any other country in which Kapow or its agents maintain facilities. By using the Service, You consent to any such transfer of information outside of your country. 9. Links. OpenKapow, any Service or a third party may provide links to other Websites. OpenKapow exercises no control whatsoever over such other Websites and Web-based resources and is not responsible or liable for the availability thereof or the Content, advertising, products or other materials thereon. OpenKapow shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by You in connection therewith. 10. Intellectual Property Rights. 10.1. For purposes of the TOS, "Intellectual Property Rights" shall mean any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. As between Kapow and You, You acknowledge that Kapow owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Services and that You shall not acquire any right, title, or interest in or to the Service, except as expressly set forth in the TOS. 10.2. Kapow respects the intellectual property of all parties and asks You to do the same. If You or a third party believes that its Content has been copied in a way that constitutes copyright infringement, You or the third party should provide Kapow with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that has been infringed; (c) a description of where the allegedly infringing material is located on the Website; (d) Yours or third party's address, telephone number and email address; (e) a statement by You or the third party that You or they have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by You or the third party, under penalty of perjury, that the above information is accurate and that You or the third party is the copyright owner or is otherwise authorized to act on the copyright owner's behalf. If Kapow receives such a claim, Kapow reserves the right to refuse or delete Content as described under Section 10.2 hereto, or to terminate Your account in accordance with Section 7. 11. Indemnity. You shall indemnify, defend and hold harmless each of OpenKapow and its affiliates and their respective officers, employees and agents, and any of OpenKapow’s website partners from any and all claims or demands, including reasonable attorneys' fees, made by any third party due to or arising out of that user's acts or omissions, including claims arising out of that Your use of OpenKapow, Your submission, posting or transmission of Content or Your violation of the TOS. 12. Disclaimer OF Warranties; Limitation of Liability 12.1. Your use of the Services is at Your sole risk. The Services are provided on an "as is" and "as available" basis and Kapow assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any of Your communications or personalization settings. You will be solely responsible for any damage to his or her computer system or loss of data which results from the download of any such material. Kapow expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Specifically, Kapow makes no warranty that: (i) OpenKapow or any Service will meet Your requirements or service levels, (ii) Your access will be uninterrupted, timely, secure or error-free, (iii) the quality of any content, products, services, information or other material obtained by You will meet Your expectations, and (iv) any errors in the software will be corrected. 12.2. If You desire guaranteed performance, SLA commitments and/or to access Services inside OpenKapow firewalls, the You must purchase an upgrade to Kapow’s enterprise Roboserver™. 12.3. EXCLUDING ONLY DAMAGES ARISING OUT OF KAPOW’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, KAPOW SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KAPOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY USE OR INABILITY TO USE THE SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR ANY OTHER MATTER RELATING TO KAPOW OR ANY SERVICE. IN NO EVENT SHALL KAPOW’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY UNDER THESE TERMS OF SERVICE OR OTHERWISE EXCEED $1,000.00. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 12.4. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY CAUSED BY THE FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY ASSET, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOUR, NEGLIGENCE OR ANY OTHER COURSE OF ACTION BY KAPOW. 12.5. AS NOTED ABOVE, KAPOW DOES NOT AND CANNOT CONTROL THE ACTIONS OF KAPOW USERS, VISITORS OR LINKED THIRD PARTIES. KAPOW RESERVES THE RIGHT TO REPORT ANY MALFEASANCE WHICH COMES TO ITS ATTENTION TO THE APPROPRIATE AUTHORITIES. KAPOW DOES NOT GUARANTEE CONTINUOUS UNINTERRUPTED OR SECURE ACCESS TO OPENKAPOW OR ANY SERVICES. OPERATION OF THE WEBSITE MAY BE SUBJECT TO INTERFERENCE FROM NUMEROUS FACTORS OUTSIDE KAPOW’S CONTROL. FURTHER, SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO THE WEBSITE. 13. General. The provisions of the Agreement are severable and if any one or more of the provisions hereof are illegal or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding on and enforceable by and between the parties hereto and the illegal or otherwise unenforceable provision shall be reformed by the appropriate judicial body to as closely as possible approximate the legal and economic impact of the original provision and yet be enforceable, legal and valid. The failure of either party at any time to require performance by the other of any provision hereof shall not affect the right of either party to require performance at any time thereafter; nor shall the waiver of either party of a breach of any provision hereof be taken or held to be a wavier of any succeeding breach of such provision or as a waiver of any provision itself. This Agreement (including the documents it incorporates and references) constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, representations, statements and undertakings, oral or written, are hereby expressly superseded and canceled. No purchase order, acknowledgment or similar document generated by You shall supersede this Agreement. The rights and obligations of the parties to this Agreement shall be governed and construed in accordance with the laws of the State of California, excluding that body of law known as Conflicts of Law. The United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded from application to this Agreement. Any dispute in connection with the Licensed Materials or arising out of or related to this Agreement will be resolved exclusively in state or federal courts located in Santa Clara County, California, U.S.A., and, as such, You irrevocably consent and waive any objections to the exclusive, personal jurisdiction of such courts.
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