Matterport for Government Addendum

This Matterport for Government (“MFG”) Addendum (“Addendum”) supplements and amends the Matterport Platform Subscription Agreement located at https://matterport.com/legal/platform-subscription-agreement (“PSA”), the Terms of Use located at https://matterport.com/terms-of-use (“Terms of Use”) and the Matterport Hardware Terms and Conditions of Sale located at https://matterport.com/legal/hardware-terms-of-sale (“Hardware Terms”) (collectively, the “Agreement”) that together with this Addendum govern Customer’s use of the MFG Platform (defined below) and Services, and purchase of any Hardware, as applicable. 

1. Definitions

MFG Platform” means Matterport’s proprietary cloud-based MFG application platform hosted on the AWS GovCloud (U.S.) via which the Platform Services are made available by Matterport.

State or Local government entity in the United States” means any (1) an agency, department, or entity of a state or local government in the United States, or (2) any United States county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer’s state and located within Customer’s state’s jurisdiction and geographic boundaries.

U.S. Government entity” means a federal agency, department, or other entity of the U.S. Government.

Any and all references to “Platform” or “Matterport Platform” in the Agreement shall be deemed a reference to the MFG Platform. Any and all references to the “Matterport 3D Capture App” or the related “App” in the Agreement shall be deemed a reference to the MFG 3D Capture application from Apple App or Google Play Store (“MFG App”). Any and all references to “Matterport’s End User License Agreement” for the “App” in the Agreement shall be deemed a reference to the MFG App End User License Agreement located at https://matterport.com/legal/gov-end-user-license-agreement for the MFG App.

Undefined capitalized terms used herein shall have the meaning set forth in the Agreement.

2. MFG Platform Services and Hardware Terms

The following terms are applicable to all Customers purchasing the MFG Platform Services and Hardware and shall supplement and/or amend the Agreement. 

  • (a) Third-Party Services, Capture Services, Professional Services, and Delegated Access. Any and all terms regarding Third-Party Services, Capture Services, Professional Services, and Delegated Access in the Agreement shall not apply.

  • (b)BIM File Services, Schematic Floor Plan Services, and TruePlan Services. Any and all terms regarding Matterport BIM File Services, Schematic Floor Plan Services, and/or TruePlan Services in the Agreement shall not apply.

    • 4.3.1. Generally. Customer has the ability to designate any Matterport Space or Customer Image Data hosted on the Platform as “private” (i.e., only accessible by Customer via the Platform) or “restricted” (i.e., accessible by anyone who possesses the related password or link). Customer acknowledges this is a feature which is a part of, and cannot be removed from the Platform, and Customer is solely responsible for ensuring the appropriate designation of its Spaces.

    • 4.3.2 Third-Party Interaction. In the event that Customer designates a Matterport Space or Customer Image Data as “restricted”, Customer acknowledges that third parties may interact with such Matterport Space or Customer Image Data (which shall include being permitted to take measurements, adding annotations or comments, saving and sharing links to such Matterport Space or Customer Image Data), and any rights (including Intellectual Property Rights) that arise as a result of such third-party interactions shall be solely owned by Matterport.

  • (c) Responsibility for Appropriate Designation. Section 4.3 (Responsibility for Appropriate Designation) of the PSA is deleted and replaced in its entirety with the following: 

  • (d) Security Measures. Customer Image Data will not be stored outside the United States. 

  • (e)Right to Use Matterport Spaces. Section 9.3 (Right to Use Matterport Spaces) of the PSA is replaced in its entirety with the following: Matterport shall use each Matterport Space during the term of this PSA solely for the purpose of providing the Services to Customer (the “Purpose”) and Customer hereby grants to Matterport a non-exclusive, irrevocable, perpetual, royalty-free, sub-licensable license to use each Matterport Space during the term of this PSA for such Purpose.

  • (f) License of Customer Data. Clause (b) of Section 9.4 (License of Customer Data) of the PSA is deleted.

  • (g) Matterport Data. Any and all terms regarding Matterport Data, Anonymized Data, Generic Space Data, Usage Data and LPI Data under the Agreement shall not apply.

    • 4.7. Usage Limits. 

    • (a) For the purpose of paragraph 4.7 of this PSA, 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 Active Spaces and Archived Spaces.   

    • (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 the Usage Limit, Customer may execute a new Order to purchase the next level of Usage Limit of the particular Usage Limited Products.

    • (c) Additional Services. Matterport may notify Customer in the event that Customer’s Usage of the Additional Services is nearing the Usage Limits, 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 Additional Services meets or exceeds the Usage Limit, Customer shall execute a new Order to purchase the next level of Usage Limit for the Additional Services. If Customer fails to make such a purchase, Matterport may be entitled to suspend the Services or 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 4.7 (c) of this PSA 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 4.7(c) of this PSA 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.

  • (h) Usage Limits. The following is added to the end of Section 4 (Customer’s Responsibilities) under the PSA: 

  • (i) Simultaneous Subscriptions. If Customer procures and maintains simultaneous subscriptions in both the MFG Platform and the Matterport commercial SaaS platform, Customer acknowledges these separate and distinct platforms and agrees to maintain Customer data administration controls and oversight to prevent and prohibit data “spillage” and/or transfer of Customer Data by and between the Matterport commercial SaaS platform and MFG Platform. 

3. Terms Applicable to U.S. Government Entities and State and Local Government Entities.

If Customer is a U.S. Government entity or a State or Local government entity in the United States, the following additional terms shall supplement and/or amend the Agreement.

(a) Affiliates. Any and all terms regarding Affiliates in the Agreement shall not apply.

(b) Renewal. At the end of the relevant Subscription Period set forth in the Order, Customer’s MFG Platform Subscription, AS Subscription, and/or Additional Functionality Subscription may renew for successive periods upon mutual agreement of the parties. 

(c) Taxes. In the event Customer is exempt from sales tax, Customer will not be charged for Sales Tax upon Matterport’s receipt of a tax exemption certificate from Customer.

(d) Click-Through Terms. No provisions of any click-through agreement that may be provided in conjunction with the Services shall apply in place of, or serve to modify any provision of this Addendum, even if an Authorized User purports to have affirmatively accepted such click-through provisions.

(e) FedRAMP. The Matterport for Government Platform is not FedRAMP authorized, ready, in process, or approved. Customer shall not via any means provide or make available to Matterport any Customer Data that is required to be hosted in a FedRAMP authorized, ready, in process, or approved cloud platform, including (without limitation) any moderate risk data or high risk data (as such terms are defined in FIPS PUB 199, Standards for Security Categorization of Federal information and Information Systems).

(f) FOIA. The Parties acknowledge and agree that the Customer, as a State or Local government entity in the United States or a U.S. Government entity, may be subject to the Freedom of Information Act (5 U.S.C. §552(b)(4)) and/or related state statutes. Notwithstanding the foregoing, the Parties acknowledge and agree that any and all Confidential Information of Matterport, including without limitation the Order, is transmitted to the Customer under the assurance of privacy subject to the exemption provisions under the Freedom of Information Act for federal and state agencies. 

(g) Commercial Product. Each of the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is a U.S. Government entity or any contractor or subcontractor (at any tier) thereof, Customer receives only those rights with respect to the Services as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7202-4, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government entities and their contractors. The terms and conditions of this Agreement are fully applicable to the US Government’s use of the Services, and shall supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation. 

(h) Governing Law. This Addendum and the Agreement shall be governed by the laws of the Customer’s state if Customer is a State or Local government entity in the United States. If Customer is a U.S. Government entity, this Addendum and the Agreement shall be governed by federal law. Any claims against Customer, as a State or Local government entity in the United States or a U.S. Government entity, are subject to the jurisdictional and procedural requirements established under applicable federal or state law. Notwithstanding anything to the contrary, this Addendum and the Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded. 

(i) Termination. Customer, as a State or Local government entity in the United States or a U.S. Government entity, may terminate any Order entered into pursuant hereto for convenience as allowed by and in accordance with applicable federal or state law and Matterport reserves all associated rights and remedies. For the avoidance of doubt, no refunds of Fees shall be due following any such termination.