Last updated: July 7, 2016
The Matterport Pro 3D Camera Terms and Conditions of Sale (“Terms of Sale”) set forth below govern Your purchase of the Matterport Pro 3D Camera (“Camera”). To use the Camera, You must have access to a supported Apple device (as specified now or in the future by Matterport), and must download onto the Apple device the Matterport 3D Capture application (the “App”) from Apple’s App Store. In addition, to generate 3D models from images You produce with the Camera, You must also subscribe to the Matterport Portal, which is subject to periodic subscription and processing fees. Use of the App is subject to Matterport’s End User License Agreement for the App (matterport.com/legal/eula/), and use of the Matterport Portal is subject to the Matterport Portal Subscription Agreement (matterport.com/legal/terms-of-service). Please read the End User License Agreement for the App and the Matterport Portal Subscription Agreement carefully. Use of the Camera with any other app or 3D model-generating software is not authorized by Matterport and is strictly prohibited.
BY CLICKING “I AGREE” IN CONNECTION WITH THESE TERMS OF SALE, BY ELECTRONICALLY OR MANUALLY SIGNING THESE TERMS OF SALE, AND/OR BY ACCEPTING DELIVERY OF A CAMERA, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS OF SALE. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES: (A) DO NOT USE THE CAMERA; AND (B) YOU MAY RETURN THE CAMERA IN ACCORDANCE WITH SECTION 4 OF THESE TERMS OF SALE, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN.
1. General. These Terms of Sale constitute the entire agreement between Matterport, Inc. (“Matterport”) and you or the entity that you represent (“You”) regarding Your purchase of a Camera, and supersede all prior communications and agreements, written or verbal, relating thereto. Any additional, inconsistent or different terms and conditions in any order or other communication from You are hereby expressly rejected. Matterport reserves the right to revise these Terms of Sale in its sole discretion at any time and without prior notice to You by updating these Terms of Sale at http://matterport.com/hf/camera-terms-of-sale/, provided that such changes shall be effective from the moment a revised posting is made only with respect to Cameras purchased after the revision date. Thus, You should visit matterport.com/hf/camera-terms-of-sale/ periodically to review changes. If You disagree with these Terms or any changes thereto, Your sole remedy is to discontinue future Camera purchases. Acceptance by You of a Camera after a change has been posted constitutes Your acceptance of the change thereafter.
2. Pricing; Payment Terms.
(a) The price of the Camera purchased hereunder is as designated in Your online shopping cart or other price quote provided by Matterport. Once an order for a Camera is received, before the order is accepted by Matterport, Matterport shall have the right to revise the pricing for the Camera
(b) Prices do not include any taxes, now or hereinafter enacted, applicable to the Camera sold hereunder. You agree to pay or reimburse any such taxes which Matterport is required to pay or collect. Your total invoiced amount will include the price of the Camera(s) plus any applicable sales and/or use tax. Such tax is based on the bill-to address and the sales and use tax rate in effect at the time You purchase the Camera(s). Matterport will charge sales and use tax only in states where local regulations and laws require it, to the best of Matterport’s knowledge.
(c) The payment option(s) available to You are as specified by Matterport upon purchase. Unless specified to the contrary in writing by Matterport, You shall pay the purchase price of the Camera and any taxes with a validly authorized credit card.
(d) Matterport will deliver an invoice to You when the Camera is shipped. Notwithstanding the foregoing, Matterport will extend credit for orders in Matterport’s sole discretion and reserves the right to require payment for an order before Matterport ships the Camera(s) for such order, including without limitation in the event You have any unpaid prior orders outstanding at the time an order is received. In the event that Matterport extends credit for an order, the associated invoice is payable within thirty (30) days of the date of such invoice unless otherwise specified, and You shall pay a late charge equal to the lesser of 1% of the total amount payable for the Camera per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance.
(e) All Camera sales are final. If a Camera becomes unavailable following Your purchase but prior to delivery, Your sole and exclusive remedy is a full refund of the purchase price. If technical problems prevent or unreasonably delay delivery of Your Camera, Your sole and exclusive remedy is either replacement or full refund of the purchase price, as determined by Matterport.
(f) You shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Matterport may at any time, without limiting any other rights or remedies it may have, set off any amount You owe to it against any amount payable by Matterport to You.
3. Delivery, Risk of Loss and Title.
(a) Unless specified to the contrary in writing by Matterport, You shall be liable for all costs associated with shipping the Camera to You.
(b) Any delivery date specified by Matterport is approximate only. Matterport shall not be liable for any loss or expense, whether arising in tort or contract, incurred by You if the delivery does not meet any specified approximate delivery date.
(c) Unless specified to the contrary in writing by Matterport, risk of loss or damage of the Camera shall pass to You upon delivery of the Camera to the carrier of the Camera.
(d) Matterport will retain title to the Camera until payment of the price of the Camera is received in full by Matterport. If You fail to make payment on the Camera, and it has already been delivered: (i) Matterport may use all legal means to recover such Camera at Your expense; and (ii) Matterport will have the right to block Your use of the Matterport Portal in connection with processing or hosting any imagery from such Camera.
(e) Until title to the Camera has passed to You, You shall: (i) store the Camera separately from all other goods held by You so that it remains readily identifiable as Matterport’s property, (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Camera, (iii) maintain the Camera in satisfactory condition and keep it insured against all risks for its full price from the date of delivery, and (iv) give Matterport such information relating to the Camera as Matterport may require from time to time.
4. Return Policy.
(a) Return Policy for Cameras Without Faults. One time only, You may, at Your expense, return an undamaged Camera to Matterport in the original packaging with the original receipt within 30 days of the date of the original shipment of the Camera to You. If the Camera and original packaging are returned within this timeframe and confirmed by Matterport not to be damaged, Matterport will provide a full refund based upon the original payment method. You cannot return unwanted items after 30 days. The foregoing return right applies only to the first Camera returned by You. In the event You have previously returned a Camera and received a refund from Matterport, subject to those rights set out below regarding Cameras with faults, You will have no subsequent right to return any other Camera without the prior written consent of Matterport, which consent Matterport may grant or withhold in its sole discretion.
(b) Return Policy for Cameras With Faults. If a Camera develops a fault, You have the option of an exchange or refund if the fault occurs within twenty-one (21) days of delivery. If the fault occurs after such 21-day period, Your warranty rights are as set forth in Section 5. In all cases, Matterport reserves the right to inspect the Camera and verify the fault.
(c) Limitations. Your right to return a Camera set forth in this Section 4 shall not apply if: (i) a defect or fault arises because You failed to follow Matterport’s instructions as to storage, commissioning, installation, use and maintenance or good trade practice regarding the same, (ii) You alter or repair the Camera without the written consent of Matterport, or (iii) a defect or fault arises as a result of wear and tear, willful damage, negligence, or abnormal storage or working conditions.
5. Limited Warranty. Matterport warrants the Camera against defects in material and workmanship for a period of one (1) year from original date of shipment, or such longer period under any extended warranty purchased by You at Matterport’s then-available extended warranty rate (collectively, the “Warranty Period”). This limited warranty is for the benefit of the original end purchaser only and is not transferable by the end purchaser. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITED WARRANTY SHALL NOT APPLY IF THE CAMERA HAS BEEN REPAIRED OR ALTERED, EXCEPT BY MATTERPORT, OR IF IT HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT. In the event any defect in the material or workmanship of the Camera arises during the Warranty Period, Matterport’s sole liability shall be (at the option of Matterport) to repair, provide a refund for, or replace any Camera returned by You during the Warranty Period, provided that (a) Matterport is notified in writing by You of the claimed defect(s) during the Warranty Period, (b) the Camera is returned to Matterport in the undamaged original Camera packaging, and (c) Matterport’s examination of the Camera discloses to its satisfaction that the defect(s) were not caused by misuse, negligence, accident, or unauthorized repair or alteration by You or on Your behalf. All shipping costs to Matterport from any location in the United States, or from Matterport to any location in the United States, for any Camera that is repaired or replaced under this limited warranty, will be at Matterport’s expense; provided, however, that You will bear the expense of shipping any such Camera to or from any non-U.S. location, and all shipping costs to and from Matterport for any Camera that is repaired or replaced outside the scope of this limited warranty will be at Your expense. MATTERPORT’S ONLY LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM OF A DEFECT IN THE CAMERA, WHETHER ARISING IN TORT OR CONTRACT, IS AS STATED IN THIS SECTION 5. IN NO EVENT SHALL MATTERPORT OR ITS AFFILIATES OR LICENSORS HAVE ANY OTHER LIABILITY FOR ANY LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF FORESEEABLE, ARISING IN CONNECTION WITH ANY CAMERA OR THIS AGREEMENT. IN PARTICULAR, MATTERPORT SHALL NOT BE LIABLE FOR (I) LOST PROFITS, (II) LOST DATA, (III) LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR (IV) FOR ANY OTHER SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF MATTERPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF MATTERPORT AND ITS AFFILIATES AND LICENSORS RELATING TO ANY CAMERA OR THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS YOU PAID TO MATTERPORT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. WITHOUT LIMITING ANY OTHER CONDITION SET FORTH IN THIS SECTION, MATTERPORT WILL HAVE NO WARRANTY OBLIGATION HEREUNDER IF YOU FAIL TO RETURN THE CAMERA IN THE UNDAMAGED ORIGINAL PACKAGING OR IF YOU HAVE INSTALLED ANY FIRMWARE IN THE CAMERA OTHER THAN THE FIRMWARE INITIALLY EMBEDDED IN THE CAMERA OR ANY FIRMWARE UPDATE SUBSEQUENTLY PROVIDED BY MATTERPORT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR SOME OR ALL OF THE FOREGOING LIMITATION OF LIABILITY, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS AND/OR LIMITATION MAY NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY OF MATTERPORT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. Other Goods. Any accessories required to use or transport the Camera, such as a tripod, camera carrying case, or other goods desired by You, must be purchased separately.
7. Governing Law; Venue. Unless prohibited by applicable law, these Terms of Sale shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for San Francisco County, California, and the parties specifically consent to San Francisco, California, as the exclusive venue for any such proceeding. These Terms of Sale and the transaction hereunder shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. Firmware. Certain software is embedded in the Camera by Matterport (the “Firmware”). Subject to these Terms of Sale, Matterport grants You a non-exclusive, revocable, limited license to use the Firmware solely with the Camera and in binary executable form only. The foregoing does not include a license to any source code. You shall not cause, or permit any third party to, reverse engineer, decompile, modify, translate or disassemble any of the Firmware; create derivative works based upon any of the Firmware; or do anything else that would adversely affect the intellectual property rights of Matterport and its licensors in and to the Firmware. You acknowledge that the source code underlying the Firmware is the confidential and proprietary information of Matterport and its licensors. You shall not install any firmware or other software on any Camera other than the Firmware or an update to the Firmware provided by Matterport. If You install any firmware on the Camera other than the Firmware (or any Firmware update provided by Matterport), such action will be deemed a material breach of these Terms of Sale that will void the warranty set forth in Section 5. In addition, without limiting any other remedy available to Matterport, Matterport reserves the right to bring an action against You for breach of contract and infringement of intellectual property rights in such event.
9. Intellectual Property. Except as set forth in Section 8, nothing in these Terms of Sale shall be deemed to convey any intellectual property right to You in and to the Camera, Firmware, Matterport Portal, the App, or any other technology of Matterport or its licensors. You agree that (although Matterport may request that You contribute towards the design and development of its products), as between the parties, Matterport is the sole owner of all intellectual property rights in and to the Camera and other property described in this Section.
(a) Your failure to perform its obligations hereunder including, without limitation, payment in full of the purchase price for the Camera, shall constitute a default under these Terms of Sale.
(b) A waiver of any condition or default is not a waiver of any subsequent default.
(c) You may not assign or otherwise transfer any rights hereunder without Matterport’s prior written consent, and any attempt to do so without consent is void. These Terms of Sale are binding upon and for the benefit of the respective successors and assigns of the parties hereto.
(d) If any provision of these Terms of Sale is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Sale and shall not affect the validity and enforceability of any remaining provisions.
(e) Notwithstanding anything to the contrary in Section 1, these Terms of Sale do not govern: (i) any use of Matterport’s hosted portal that communicates with Cameras and processes Camera imagery to produce 3D models, which use is governed by the Matterport Portal Subscription Agreement (available at matterport.com/legal/terms-of-service/); or (ii) use of the Matterport 3D Capture application made available through Apples App Store, which is governed by Matterport’s End User License Agreement for the App (available at matterport.com/legal/eula/).
(f) Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (i) if to Matterport, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Matterport, Inc., 352 E. Java Dr., Sunnyvale, CA 94089, Attn: Legal Notices; or (ii) if to You, by email or by posting a notice to Your account in the Matterport hosted portal.
(g) Except as provided in Section 1, any changes in these Terms of Sale are not valid unless in a writing signed by an officer of Matterport.
(h) You acknowledge that You have read these Terms of Sale, understand them, and agree to all terms and conditions in these Terms of Sale.
(i) Matterport will have the right to include, on its website and sales and marketing collateral, Your name and associated logo in lists that identify Matterport customers.
(j) A person who is not a party to these Terms of Sale shall not have any rights to enforce its terms.