Matterport Enterprise Addendum

Last updated: December 1, 2023

This Enterprise Addendum (“EA”) supplements the Platform Services Agreement (“PSA”) and Terms of Use for Customers purchasing an enterprise level Matterport Subscription Plan (the PSA, Terms of Use and EA collectively referred to as the “Agreement”).

This EA only applies to Customers who purchase an Enterprise Plan for your Matterport Subscription Plans (as updated from time to time).  

1. Enterprise Services

In consideration of Customer payment of the applicable fees set forth in an Order, Matterport shall provide Enterprise Services, as defined in this Paragraph 1, to Customer pursuant to this Agreement. The Enterprise Services shall include, but are not limited to, the following:

1.1. Customer Support: During the Subscription Period, Matterport shall provide technical support (including clarification of the functions and features of Platform Subscription Services and guidance regarding their operation but excluding any form of specific consulting (or similar)) during the following hours:

• Customers located in North America: 07:00 – 17:00 PST

• Customers located in the Asia Pacific Region: 08:00 – 17:00 SGT

• Customers located in Europe, the Middle East and Africa: 08:00 – 18:00 BST

1.2. Support Requests. Support requests may be submitted: (a) by filing a ticket via the support function on the Platform; (b) via the Chat Function; or (c) by contacting Matterport’s support line via the relevant local number set out below. For the avoidance of doubt, no technical support shall be provided in respect of Additional Services. Support will be provided in respect of Additional Functionality (where relevant) in accordance with Schedule I to the PSA (SDK and API Terms). 

1.3. Service Levels. Subject to the terms and conditions of this Agreement, Matterport shall use commercially reasonable efforts to make the Platform available, exclusive of downtime necessary for scheduled and emergency maintenance, in accordance with the following:

1.3.1. Definitions. For the purposes of this Service Level Agreement (“SLA”), “Downtime” means unavailability of the Platform. Any terms otherwise used in this SLA but not defined herein shall have the meaning given to them in the main body of the Agreement.

1.3.2. Availability. Matterport shall ensure that the Platform is available 99.5% of the time, calculated on a calendar monthly basis.

1.3.3. Downtime. The “Monthly Uptime Percentage” is determined by number of minutes the Platform is available during a calendar month as a percentage of the total number of minutes in such calendar month, excluding Downtime arising in those circumstances identified in Paragraph 3 below (“Excluded Downtime”), and is calculated with the following formula:((total minutes –downtime which is not Excluded Downtime – Excluded Downtime) / (total minutes – Excluded Downtime)) * 100

1.3.4. SLA Exclusions. This SLA does not apply to any Additional Services or Additional Functionality or any Downtime of the Platform arising due to a) scheduled maintenance for which Customer has received written notice (email or service notice is sufficient) at least 48 hours in advance of such maintenance outage, (b) reasons of Force Majeure, (c) outages resulting from network service provider outages or Internet outages resulting from failures outside the control of Matterport, or (d) outages resulting from Customer’s system, hardware or software application failures. 

1.4. User Training. Matterport shall provide Customer with training materials and webinars to help Customers users become proficient in using Matterport’s Platform. 

2. Usage Limits

2.1. Usage Limits.

• (a) For the purpose of paragraph 2.1 of this EA, the following terms have the following meanings:

  • “Active Matterport Space” means a Matterport Space that is in use, visible and currently accessible in Customer’s Showcase.

  • “Archived Matterport Space” means a Matterport Space that has been archived (but not deleted) and is not currently visible in or accessible via Customer’s Showcase.

  • “Usage” means the relevant use of a Service (whether by reference to a total number used or otherwise) at any measurement in time or in respect of a relevant period of time.

  • “Usage Limit” means the purchased limit for Usage as specified in the Order. For the avoidance of doubt, different Usage Limits can be purchased in respect of Usage Limited Products.

  • “Usage Limited Products” are the Services which have a Usage Limit, including, but not limited to Matterport Enterprise, Active Spaces, Archived Spaces and SpaceFlex.

• (b) Usage Limited Products. Matterport may notify Customer in the event that Customer’s Usage of Usage Limited Products is nearing the Usage Limit and, in such circumstances, Matterport may work with Customer to seek to reduce Customer’s Usage so that it continues to conform to the Usage Limit. Notwithstanding the foregoing, if Customer’s Usage of the Usage Limited Products meets or exceeds the Usage Limit, Customer shall either:

  • (i) enter into a new Order with Matterport or an Authorized Reseller to purchase the next level of Usage Limit of the particular Usage Limited Products for a period of at least one year; or

  • (ii) purchase additional quantities of the Usage Limited Products by following the on-screen message. This method of purchase will be on a monthly basis and Matterport shall bill for the maximum Usage used during the month, provided however that in the event that Customer fails to take either of those steps outlined in paragraph 2.1(b)(i) or (ii), Matterport may be entitled to suspend the Services or Matterport or an Authorized Reseller may invoice Customer in respect of Usage which exceeds the Usage Limit monthly in arrears and, without prejudice to any amounts to be invoiced as set out in the Order for Usage Limited Products, the Fees payable by Customer is respect of such additional Usage shall be calculated by reference to the unit price set out in the Order, increased by 20%. Archived Matterport Space overages shall be charged at 50% of the rate determined for Active Matterport Spaces.

• (c) Additional Services. Matterport may notify Customer in the event that Customer’s Usage of Additional Services is nearing the Usage Limits. Notwithstanding the foregoing, if Customer’s Usage of the Additional Services meets or exceeds the Usage Limit, Customer shall purchase additional quantities of such Additional Services via http://my.matterport.com or from any Authorized Reseller. If Customer fails to make such a purchase, Matterport may be entitled to suspend the Services or Matterport or an Authorized Reseller may invoice Customer in respect of Usage which exceeds the Usage Limit monthly in arrears and, without prejudice to any amounts to be invoiced as set out in the Order for Additional Services, the Fees payable by Customer in respect of such additional Usage shall be calculated by reference to Matterport’s then-current standard rates.

• (d) Customer acknowledges and agrees that: (a) any individual who makes a purchase as described in paragraph 2.1(b) or (c) of this EA is authorised to make such purchase and the actions of any such individual will be binding on Customer; and (b) any additional purchases made in accordance with paragraph 2.1(b) and/or paragraph 2.1(c) of this EA shall be governed by and in accordance with terms of Customer’s first Order setting forth such Usage Limits, or any subsequent Order which increased Customer’s Usage Limits.

• (e) All Usage Limited Products must be consumed within the applicable Subscription Period. Any additional quantity purchased for Usage Limited Products that remain at the end of Customer’s Subscription Period shall not be credited to future Subscription Periods and any such remaining amount shall be forfeited by Customer.

3. Privacy, Data Security & Confidentiality

3.1. Data Protection. The following shall supplement Paragraph 8.1 of the PSA. 

3.1.1. The Parties hereby undertake to comply at all times during the term of this Agreement with their respective obligations pursuant to the data privacy Laws. Without prejudice to the generality of the foregoing, in providing the Services, Matterport shall at all times comply with its Privacy Policy and, where applicable, the Data Processing Addendum and Standard Contractual Clauses, available at: https://matterport.com/legal/data-processing-addendum, which are incorporated herein

3.2. Security Measures. The following shall supplement Paragraph 8.2 of the PSA. 

3.2.1. Matterport shall monitor the Services for the purposes of preventing (and, where relevant detecting) any Security Incident. If Matterport has reason to suspect or has confirmed the existence of a Security Incident that impacts Customer Personal Data, it shall: (a) notify Customer of such Security Incident without undue delay, but in any event within seventy-two (72) hours, and provide Customer with all such information as may be required for Customer to meet its obligations under applicable law; and (b) at its cost, take all necessary steps to bring the Security Incident to an end and prevent the reoccurrence of such Security Incident. Matterport will provide Customer with Matterport’s latest SOC2 accreditation and supporting documentation upon Customer’s reasonable request from time to time. For the avoidance of doubt, Matterport does not provide or otherwise offer ‘in-person’ audits under any circumstances but will provide annual penetration test reports and other appropriate documentation, certifications, and attestations. Further details may be found on the Matterport Website, here: https://matterport.com/trust.

3.3. Confidentiality. The following shall replace Paragraph 8.3 of the PSA in its entirety. 

3.3.1. “Confidential Information” means all information in whatever form received or obtained by a Party (the “Receiving Party”) from, or on behalf of, another Party (the “Disclosing Party”) as a result of, or in connection with, this PSA (including any reports, summaries or analyses to the extent prepared from such information) other than: (a) any information which was rightfully in the possession of the Receiving Party prior to the disclosure by the Disclosing Party and acquired on a non-confidential basis from sources other than the Disclosing Party; (b) any information which is in the public domain otherwise than as a result of a breach of this Agreement by the Receiving Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

3.3.2. All Confidential Information communicated by a Party to the other Party shall be treated as confidential, regardless of its form, nature, or the way it has been communicated and each Party agrees that it shall use such Confidential Information solely in connection with the performance of its obligations and the exercise of its rights pursuant to this Agreement.

3.3.3. The Parties each agree that their respective employees and sub-contractors (if any) will be communicated Confidential Information of the other Party only on a need-to-know basis and shall ensure that such persons are subject to obligations of confidentiality that are no less stringent than those imposed in this Agreement

3.3.4. Following the termination or expiry of this Agreement, without prejudice to any other term of this Agreement, each Party shall, if requested to do so by the other Party, as soon as reasonably practicable, procure that all Confidential Information in its possession or under its control is returned, deleted or destroyed (save to the extent prohibited by relevant laws or regulations) in accordance with the written instructions of the other Party and shall confirm in writing to the other Party that it has done so.

3.3.5. Each Party undertakes to apply to the Confidential Information at least the same security measures and degree of care as it applies to its own confidential information.

3.3.6. Nothing in this Paragraph 2.3 shall (a) restrict Matterport’s right to use and disclose any Matterport Technology and Matterport Data (each as defined in the PSA) as provided elsewhere in this Agreement; or (b) apply to Matterport’s use and disclosure of Customer Image Data or Aggregated Data, or (c) prohibit Matterport’s distribution to third parties or public display of any Matterport Space or Customer Image Data to the extent such distribution or publication was directed by Customer or any Authorized User via the Services or otherwise. The provisions of this Paragraph 3.3 shall survive the termination of this Agreement and the return, deletion, or destruction of the Confidential Information.

4. Additional Indemnity

4.1. In addition to the indemnification obligations in Paragraph 12 of the Terms of Use:

4.1.1. Matterport hereby agrees to defend, indemnify, and hold harmless Customer, its Affiliates and their respective officers, directors, employees, sub-contractors, and representatives (“Customer Indemnitees”), and pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees (including all associated Losses) or payable pursuant to a settlement agreed by Matterport with respect to such claims, to the extent such claims arise out of: (a) any Third-Party Claim that Customer’s use of the Services in accordance with its terms infringes any third-party’s intellectual property rights; or (b) Matterport’s violation of its obligations pursuant to Paragraph 3.3 (Confidentiality). provided that, in respect of any claim made pursuant to this Paragraph 4.1.1(a): (a) Customer shall promptly, and in any event within five (5) days of the relevant Third-Party Claim arising, provide Matterport with written notice of the Third-Party Claim; (b) Customer provides all reasonable information and cooperation to Matterport in the defence and settlement of the Third-Party Claim (at Matterport’s expense); and (c) Matterport is given sole authority to defend or settle the Third-Party Claim. Matterport shall not be liable for any costs or expenses incurred by Customer without Matterport’s written authorisation.

4.1.2. Matterport will be relieved of its obligations under this Paragraph 3 to the extent that a Third-Party Claim arises from or relates to (a) the Customer’s breach of this Agreement; (b) the Customer’s violation of applicable law or regulation); (c) the combination, operation, or use of Matterport’s Services with any non-Matterport product or service; (d) the modification of Matterport’s Services at Customer’s request; or (e) the negligence or wilful misconduct of the Customer. 

4.1.3. If any Third-Party Claim is upheld, threatened or reasonably anticipated and for which Customer seeks indemnification pursuant to Paragraph 4.1.1(a), Matterport shall have the right, at its sole discretion to either: (a) modify the relevant Service (or portion thereof) such that it is non-infringing; (b) acquire any relevant right so as to ensure the relevant Service (or portion thereof) is no longer infringing; or (c) terminate the Order pursuant to which the relevant Service is made available to Customer or otherwise terminate this Agreement, in each case without liability to Customer.

4.1.4. Customer acknowledges and agrees that Paragraphs 4.1.1 and 4.1.2 set out Matterport’s entire liability, and Customer’s sole remedy, in respect of a Third-Party Claim that Customer’s use of the Services in accordance with the terms of this Agreement infringes any third-party’s Intellectual Property Rights.

4.1.5. Customer hereby agrees to defend, indemnify and hold harmless the Indemnified Parties from and against all Third-Party Claims, including all associated Losses, to the extent based on or arising out: (a) the conduct of Customer’s business or the use of or inability to use the Services; (b) Customer’s breach of any of its covenants, undertakings, representations and/or warranties set forth in this Agreement; or (c) the fraud, gross negligence or wilful misconduct of Customer or Customer’s Authorized Users.

5. Miscellaneous

This Agreement (including any and all documentation included by reference therein), contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, agreements, understandings, and arrangements (both written and oral) between the Parties. 

6. Force Majeure

Neither Party shall be responsible or liable for any delay or failure in performance under this Agreement arising as a result of any occurrence of a Force Majeure. The delayed Party shall send written notice of the delay and the reason thereof to the other Party as soon as possible, and the time for performance of the relevant Party’s obligations hereunder shall automatically be extended for a period equal to the duration of any such delay. The delayed Party shall (a) use all reasonable endeavours to avoid or minimise the consequences of the event of Force Majeure; (b) carry out its obligation in such other way as may be reasonably practicable; and (c) use all reasonable endeavours to bring the Force Majeure in question to an end as soon as reasonably practicable. This Paragraph 5 shall not be construed as relieving either Party from its obligation to pay any sums due to the other Party.