Jurisdiction Addendum
Last updated: February 23, 2024
This Jurisdiction Addendum (“JA”) supplements the Platform Services Agreement (“PSA”) and Terms of Use for Customers purchasing an Matterport Subscription Plan (the PSA, Terms of Use and any addendum collectively referred to as the “Agreement”).
This JA only applies to Customers who have this JA referenced in their Order Form.
Whereas
Matterport and the Customer mutually agree that this JA applies exclusively to the specific Order Form citing this JA. The purpose of this JA is to modify select terms of the existing Agreement, thereby making it governed by Netherlands law.
1. Governing Law
The following shall be added to the PSA as Clause 12:
“This Agreement shall be governed by and construed in accordance with the laws of the Netherlands. Any dispute, controversy, or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach, or termination thereof, shall be subject to the jurisdiction of the competent courts of the Netherlands. However, Matterport shall have the right to initiate legal proceedings in any jurisdiction where the Customer is located or where an infringement of its rights is taking place. The Customer agrees to submit exclusively to the jurisdiction of the courts of the Netherlands for any proceedings initiated by Matterport, but retains the right to bring claims against Matterport only within the Netherlands..“
2. Formation
Paragraph 4 on the PSA shall be amended so as the add the words below to the end of the first sentence:
“and any other documents or general purchase conditions of the Customer are herewith rejected”
The new paragraph 4 shall read as follows::
“This PSA supplements and incorporates Matterport’s online Terms of Use (“Terms of Use”) which govern Customer’s use of our Services and the Matterport Platform, defined below, and any other documents or general purchase conditions of the Customer are herewith rejected. Undefined capitalised terms used herein shall have the meaning set forth in the Terms of Use. The PSA and the Terms of Use together constitute a binding agreement between Customer and Matterport.”
3. Fees and Payments
Clause 5.2 shall be amended so as to add the words below at the end of the Clause.
All Fees are exclusive of applicable taxes and fees.
The new Clause 5.2 shall read as follows:
5.2. Fees. Matterport shall invoice Customer in respect of: (a) Platform Subscription Fees, upon the Subscription Commencement Date and at the commencement of each Renewal Period; and (b) any Additional Fees which are payable pursuant to an Order, in accordance with the terms set out therein or as otherwise detailed in the Price List on the Matterport Website. All Fees are exclusive of applicable taxes and fees.
4. Third Party Services
Clause 7.1 shall have the word “agent” in the second sentence replaced with the word “intermediary”.
The new Clause 7.1 shall read as follows:
7.1. Use of Third-Party Services. The Platform facilitates the purchase of certain services (“Third Party Services”) provided by third parties (“Third-Party Providers”). All such Third-Party Services are provided by and licensed to Customer by the relevant Third-Party Provider, subject to the terms of a relevant contract between Customer and the Third-Party Provider (“Third-Party Contract”). Matterport acts as an intermediary for Third-Party Providers in relation to the marketing, and in some instances, sales of Third-Party Services and is not a party to any Third-Party Contract that is entered into. The Third-Party Provider will be solely responsible for fulfilling any order that Customer places for Third-Party Services and for: (a) the quality, content, and availability of such Third-Party Services; and (b) any Claims that Customer may wish to bring in relation to any Third-Party Service. For the avoidance of doubt, Matterport will not provide any customer support or technical support with respect to any Third-Party Service.
Clause 7.5 shall have the following words added to the end of the Clause “Notwithstanding the foregoing, this limitation of liability does not apply to damages caused by Matterport’s willful intent or gross negligence.”
The new Clause 7.5 shall read as follows:
7.5. Disclaimer; Limitation of Liability for Third-Party Services. Matterport hereby disclaims all warranties and conditions with respect to any Third-Party Service, and warranties, if any, with respect to any Third-Party Service are made solely by the applicable Third-Party Provider in the relevant Third-Party Contract. In no event will Matterport or its affiliates or licensors have any liability to customer, customer’s affiliates, or its or their respective users or customers for any damages of any nature (whether, direct, indirect, or otherwise) arising out of or related to any act or omission of a Third-Party Provider (or any sub-contractor acting on its behalf) including, without limitation: (a) any failure of any Third-Party Provider to deliver any Third-Party Service or Customer’s use of or inability to use any Third-Party Service; (b) any Security Incident caused by any Third-Party Provider or its sub-contractors; (c) any failure of a Third-Party Provider or its sub-contractors to use appropriate organizational and/or technical security measures to protect Customer Data from any Security Incident; or (d) any unauthorized redistribution or display of any Customer Image Data (or portion thereof) by any third-party, including without limitation through any unauthorized embedded links or code on a third-party website or app. Notwithstanding the foregoing, this limitation of liability does not apply to damages caused by Matterport’s willful intent or gross negligence.
5. Intellectual Property Rights
Clause 9.3 shall have the following words added to the end of the Clause “and which right shall survive any expiration or termination of this PSA.”
The new Clause 9.3 shall read as follows:
9.3. Right to Use Matterport Spaces. Matterport shall, both during the term of this PSA and thereafter, have the right to otherwise use each Matterport Space for such purposes and in such ways as Matterport may require in connection with the operation of its business (the “Purpose”) and Customer hereby grants to Matterport a non-exclusive, irrevocable, perpetual , royalty-free, sub-licensable license to otherwise use each Matterport Space for the Purpose, and which right shall survive any expiration or termination of this PSA.
6. Limitation of Liability
Clause 12.3 shall have the following words added to the end of the Clause “Notwithstanding the foregoing, this limitation of liability does not apply to damages caused by Matterport’s willful intent or gross negligence.”
The new Clause 12.2 shall read as follows:
12.2. Exclusions. The exclusions and limitations of liability in this PSA shall not apply in respect of: (a) any liability of Customer to pay any Fees; (b) any violation by Customer of the Terms of Use or this PSA; (c) any Loss suffered by any person arising out of the fraud and/or fraudulent misrepresentation of the Party seeking to rely on the exclusion or limitation; (d) death or personal injury resulting from negligence on the part of the Party seeking to rely on the exclusion or limitation; or (e) any liability of either Party that cannot otherwise be excluded or limited under applicable law. Notwithstanding the foregoing, this limitation of liability does not apply to damages caused by Matterport’s willful intent or gross negligence.