(formerly Matterport Pro 3D Camera Terms and Conditions of Sale)
Last updated: October 23, 2019
The Matterport Camera Terms and Conditions of Sale (“Terms of Sale”) set forth below govern Your purchase of the Matterport Pro 3D Camera (MC200), the Matterport Pro2 3D Camera (MC250) or any subsequent 3D camera provided by Matterport (each, a “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 Cloud, 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 Cloud is subject to the Matterport Cloud Subscription Agreement (matterport.com/legal/terms-of-service). Please read the End User License Agreement for the App and the Matterport Cloud 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.
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.
Matterport warrants each 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 will also apply to each Camera shipped as part of a trade-in or upgrade transaction, and to each refurbished Camera sold. A refurbished Camera is tested and certified to look and work like new in all material respects at the time of shipment. The refurbishing process includes functionality testing, inspection, and repackaging. With respect to any Camera that Matterport ships to You in exchange for a defective or damaged Camera, the Warranty Period for such shipped Camera shall not be extended beyond the end of the Warranty Period for the original Camera. 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 THESE TERMS OF SALE 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 THESE TERMS OF SALE 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 THESE TERMS OF SALE 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 THESE TERMS OF SALE EXCLUDES OR LIMITS ANY LIABILITY OF MATTERPORT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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.
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.
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.
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 Cloud, 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.