Matterport Hardware Terms of Sale - April 1, 2022
The Matterport Hardware Terms and Conditions of Sale (“Terms of Sale”) set forth below govern Your purchase of any Matterport hardware including the range of Matterport Pro 3D Cameras including the Matterport Pro 3D Camera (MC200), the Matterport Pro2 3D Camera (MC250) or any subsequent 3D camera developed by Matterport (each, a “Camera”), the Matterport AXIS Mount accessory including the Matterport AXIS Mount (Axis) or any subsequent AXIS mounting accessory developed or supplied by Matterport (each, an “AXIS Mount”), and any other hardware subsequently developed by Matterport. (Collectively referred to as the “Hardware”) To use the Camera, You must have access to a supported Apple iOS or Android device (as specified now or in the future by Matterport) (“Smart Device”), and must download onto the Smart Device the Matterport 3D Capture application (the “App”) from Apple App or Google Play 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 and use of the Matterport Cloud is subject to the Matterport Cloud Subscription Agreement. 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. The AXIS Mount is designed to be used solely with any Apple or Android Smartphone in production at the date of these Terms and Conditions, Matterport cannot be responsible for any other use with any other item you attach or use the AXIS Mount and such use 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 HARDWARE, 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 HARDWARE; AND (B) YOU MAY RETURN THE HARDWARE 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 Hardware, 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 provided that such changes shall be effective from the moment a revised posting is made only with respect to Hardware purchased after the revision date. Thus, You should view these Terms of Sale periodically to review changes. If You disagree with these Terms or any changes thereto, Your sole remedy is to discontinue future Hardware purchases. Acceptance by You of the Hardware after a change has been posted constitutes Your acceptance of the change thereafter.
2. Pricing; Payment Terms.
(a) The price of Hardware purchased hereunder is as designated in Your online shopping cart or other price quote provided by Matterport. Once an order for the Hardware is received, before the order is accepted by Matterport, Matterport shall have the right to revise the pricing for the Hardware
(b) Prices do not include any taxes, now or hereinafter enacted, applicable to the Hardware 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 Hardware(s) plus any applicable sales, value added, goods and/or use tax ("
Sales Tax
"). Such Sales Tax is based on the ship-to address and Sales Tax rate in effect at the time You purchase the Hardware(s). Matterport will charge Sales Tax only in countries, territories or US 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 Hardware and any taxes with a validly authorized credit card.
(d) Matterport will deliver an invoice to You when the Hardware 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 Hardware 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 1.5% of the total amount payable per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance.
(e) All Hardware sales are final. If the Hardware 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.
(g) Matterport reserves the right to recover any and all fees incurred as a result of the referral for collection of any of the above fees to an agency or legal firm.
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 Hardware to You.
(b) Any delivery date specified by Matterport is approximate only. Matterport shall not be liable for any loss or expense, howsoever arising, 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 Hardware shall pass to You at the FOB origin point.
(d) Matterport will retain title to the Hardware until payment of the price of the Hardware is received in full by Matterport. If You fail to make payment for the Hardware, and it has already been delivered: (i) Matterport may use all legal means to recover the outstanding amounts and or such Hardware at Your expense; and (ii) Matterport will have the right to block Your use of the Matterport Cloud in connection with processing or hosting any imagery from such Camera.
(e) Until title to the Hardware has passed to You, You shall: (i) store the Hardware 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 Hardware, (iii) maintain the Hardware 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 Hardware as Matterport may require from time to time.
4. Return Policy and Product Recall.
(a) Return Policy for Hardware Without Faults. One time only, You may, at Your expense of using a trackable and insured courier,, return to Matterport the first item of Hardware purchased by You within 30 days of the date of the original shipment of such Hardware to You, provided that such Hardware is in the original packaging with the original receipt. If the Hardware 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 item of Hardware purchased by You. Subject to those rights set out below regarding Hardware with faults, You will have no right to return any subsequently purchased Hardware without the prior written consent of Matterport, which consent Matterport may grant or withhold in its sole discretion. For clarity: (i) any Hardware obtained in a trade-in or upgrade transaction is not eligible for return under this subsection; and (ii) the limitations set forth in this subsection will not apply to any limited buy-back program offered by Matterport, and the written terms of such program provided by Matterport shall apply instead with respect to the return of Hardwares subject to such program.
(b) Return Policy for Hardware With Faults. If the Hardware develops either a manufacturing or operational fault within twenty-one (21) days of delivery, You have the option of an exchange or refund.. 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 Hardware and verify the fault.
(c) Limitations. Your right to return the Hardware 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 Hardware without the written consent of Matterport, or (iii) a defect or fault arises as a result of wear and tear, damage, negligence, or abnormal storage or working conditions.
Product recall
If You become aware of or are the subject of any court order, request, or other directive of a governmental or regulatory authority to withdraw any Hardware from sale in any market (“Recall Notice”), then You must notify Matterport in writing immediately including a copy of any Recall Notice.
Matterport, may as its sole discursion, issue its own notice to withdraw or recall any Hardware from sale from any market (“Voluntary Recall Notice”)
If a Recall Notice or Voluntary Recall Notice is sent or received, then You must comply with any such notice and with Matterport’s instructions regarding the same and give all reasonable assistance as Matterport may require to withdraw any Hardware from sale from any market.
5. Limited Warranty.
Matterport warrants each item of Hardware against defects in material and workmanship for a period of one (1) year from original date of shipment to the end purchaser, 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 item of Hardware shipped as part of a trade-in or upgrade transaction, and to each refurbished Hardware sold. A refurbished item of Hardware 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 Hardware that Matterport ships to You in exchange for a defective or damaged Hardware, the Warranty Period for such shipped Hardware shall not be extended beyond the end of the Warranty Period for the original Hardware. 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 HARDWARE 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 Hardware 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 Hardware 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 Hardware is returned to Matterport in the undamaged original Hardware packaging, and (c) Matterport’s examination of the Hardware 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 Hardware 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 Hardware to or from any non-U.S. location, and all shipping costs to and from Matterport for any Hardware 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 HARDWARE, 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 HARDWARE 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 HARDWARE 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 HARDWARE IN THE UNDAMAGED ORIGINAL PACKAGING OR IF YOU HAVE INSTALLED ANY FIRMWARE IN THE HARDWARE OTHER THAN THE FIRMWARE INITIALLY EMBEDDED IN THE HARDWARE 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.
6. Other Goods.
Any accessories required to use or transport the Hardware, such as a tripod, Axis, 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 Hardware 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 Hardware 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 Hardware other than the Firmware or an update to the Firmware provided by Matterport. If You install any firmware on the Hardware 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 Hardware, 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 Hardware and other property described in this Section.
10. Miscellaneous.
(a) Your failure to perform and of Your obligations hereunder including, without limitation, the payment in full of the purchase price for the Hardware, shall constitute a default under these Terms of Sale.
(b) You represent and warrant that You are not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. government embargo (currently (for reference only), Crimea, Cuba, Iran, North Korea, Syria, Russia and Venezuela); and (b) You are not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted. You shall not export, re-export, import, or transfer the Hardware in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and You shall not assist or facilitate others in doing any of the foregoing
(c) A waiver of any condition or default is not a waiver of any subsequent default.
(d) 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.
(e) 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.
(f) Notwithstanding anything to the contrary in Section 1, these Terms of Sale do not govern: (i) any use of the Matterport Cloud that communicates with Hardware and processes Camera imagery to produce 3D models, which use is governed by the Matterport Cloud Subscription Agreement (available via https://matterport.com/legal); or (ii) use of the Matterport 3D Capture application made available through Apples App Store, which is governed by Matterport’s End User Licence Agreement for the App (available at matterport.com/legal/eula/).
(g) 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 Cloud.
(h) 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. Preprinted terms on or attached to any order You issue hereunder and all other separate terms and/or documents introduced after the acceptance of this Agreement or the performance of Services or delivery of the Hardware, even if signed by Matterport, shall be null and void and of no effect without a mutually signed amendment hereto expressly citing this Agreement.
(i) You acknowledge that You have read these Terms of Sale, understand them, and agree to all terms and conditions in these Terms of Sale.
(j) A person who is not a party to these Terms of Sale shall not have any rights to enforce its terms.
Prior version can be viewed here Matterport Pro 3D Camera Terms and Conditions of Sale.