MATTERPORT, INC. CAPTURE APP END USER LICENSE AGREEMENT

Last updated: March 1, 2017

This Matterport 3D Capture App End User License Agreement (“Agreement”) is between Matterport, Inc. (“Matterport”) and you or the entity that you represent (collectively, “You”), and governs Your use of the Matterport application (the “App”) on an Apple device.

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP ON AN APPLE DEVICE, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING, MATTERPORT DOES NOT AUTHORIZE YOU TO INSTALL OR USE THE APP.

  1. 1. Parties. This Agreement is between You and Matterport only, and not Apple, Inc. (“Apple”). Matterport, not Apple, is solely responsible for the App and the content thereof. Notwithstanding the foregoing, Apple has the right to enforce this Agreement against You as a third party beneficiary.
  2. 2. Access to Matterport Pro 3D Camera and Matterport Cloud To use the App, You must have access to a Matterport Pro 3D Camera (a “Camera”) and subscribe to the Matterport Cloud. Use of the Camera is subject to Matterport’s Camera Terms and Conditions of Sale and use of the Matterport Cloud is subject to the Matterport Cloud Subscription Agreement. Please read the Camera Terms and Conditions of Sale and Matterport Cloud Subscription Agreement carefully.
  3. 3. Limited License. Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, non-exclusive, non-transferable, revocable license to install and use the App for lawful purposes solely in connection with a Camera and Your Matterport Cloud account, and only on an iPhone, iPod Touch, iPad, or other Apple device as permitted by Apple’s App Store Terms of Service. The App is designed to communicate with a Camera and the Matterport Cloud over Wi-Fi networks, and You are authorized to use the App with such networks. You acknowledge that transmitting data over a Wi-Fi network is not 100% secure or free from risk of compromise.
  4. 4. License Restrictions. Except as expressly set forth in this Agreement, You shall not, directly or indirectly, in whole or in part: (i) copy the App, except as authorized under the license granted herein; (ii) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App; (iii) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Matterport’s prior written consent; (iv) modify, or create derivative works based upon, the App, in whole or in part; (v) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; or (vi) do anything which adversely affects Matterport’s right, title or interest in or to the App. You acknowledge that the source code underlying the App is Matterport’s confidential and proprietary information.
  5. 5. Term. The term of this Agreement and the license granted herein continues until this Agreement is terminated by either party. You may terminate this Agreement at any time by discontinuing use of the App. This Agreement terminates automatically if You fail to comply with any of the terms of this Agreement. Upon any termination of this Agreement, You must cease use of the App and destroy all copies of the App.
  6. 6. Ownership. Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the App, and any copies thereof, is and will at all times remain the property of Matterport. Matterport retains all right, title and interest in and to the App that are not specifically granted to You hereunder.
  7. 7. Warranty Disclaimer. THE APP IS PROVIDED “AS IS.” MATTERPORT MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MATTERPORT MAKES NO WARRANTY THAT THE APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP WILL MEET YOUR REQUIREMENTS. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You.
  8. 8. Privacy. Matterport may use certain information collected through the App as set forth in our Privacy Policy, which is incorporated by reference to this Agreement.
  9. 9. Technical Support. Matterport may, but is not obligated to, provide maintenance or other technical support for the App. To the extent that any technical support is required by applicable law, Matterport, not Apple, shall be obligated to furnish any such support. Matterport may make changes to the App at any time without notice. Nothing in this Agreement obligates Matterport to support or provide You with updates or error corrections to the App.
  10. 10. Third-Party Claims. Matterport shall not be obligated to indemnify, defend or hold You harmless with respect to any third-party claims arising out or relating to the App, including without limitation any claims for intellectual property infringement. To the extent Matterport is required by applicable law to provide such indemnification, Matterport, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such claim. Nothing in this Agreement shall be deemed an admission that any such claims may arise.
  11. 11. Product Claims. Matterport, not Apple, is responsible for addressing any of the following claims by You relating to the App: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that You may have any such claims.
  12. 12. Limitation of Liability. IN NO EVENT WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL 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 UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID TO MATTERPORT BY YOU 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. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.
  13. 13. Notice to United States Government End Users. If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the App for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that by installing and using the App, the App qualifies as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the App and associated documentation, and shall supersede any conflicting terms or conditions.
  14. 14. Compliance with Law. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You may not export, re-export, import, or transfer the App in violation of any applicable export laws or regulations, and You may not assist or facilitate others in doing any of the foregoing. You acknowledge that it is Your responsibility to comply with any and all applicable export and import laws.
  15. 15. Governing Law; Venue. This Agreement 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. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
  16. 16. Miscellaneous. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed to the extent necessary to make it enforceable so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Matterport’s prior written consent, and any such attempt is void. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto. The parties acknowledge and agree that a material breach of this Agreement adversely affecting Matterport’s proprietary rights would cause irreparable harm to Matterport for which a remedy at law would be inadequate and that Matterport shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. This Agreement is the complete agreement between Matterport and You concerning the App, and supersedes any and all prior agreements and representations between Matterport and You related to the same subject matter.
  17. 17. Contact. If You have any questions regarding the App or this Agreement, please contact us at info@matterport.com or at 352 E Java Dr, Sunnyvale, CA 94089.