Sign InMatterport Capture Services Terms - October 1, 2022
Last updated: October 1, 2022
BY CLICKING THE “CONFIRM” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING MATTERPORT CAPTURE SERVICES TERMS AND CONDITIONS (“CAPTURE SERVICE TERMS”). IF YOU ARE ENTERING INTO THESE CAPTURE SERVICES TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE CAPTURE SERVICES TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
These Capture Service Terms are entered into between You and Matterport Inc., (“Matterport”), with its headquarters located at 352 East Java Drive Sunnyvale, CA 94089, as of the date (“Effective Date”) that You click “Submit”.
These Capture Service Terms supplement Matterport’s online Terms of Use (“Terms of Use”) and the Matterport Platform Subscription Agreement, or any successor agreement (the “PSA”), which govern Your use of our services and the Matterport Platform. Undefined capitalized terms used herein shall have the meaning set forth in the Terms of Use or PSA.
WHEREAS, You desire to engage Matterport or its subcontractor to provide certain services necessary to scan requested locations (or physical addresses) (each a “Subject Property”) for the purpose of creating a Model of the Property (“Services”).
NOW, THEREFORE, for adequate consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Definitions and Interpretation
The following words and expressions shall have the following meanings, unless the context requires otherwise:
“Cancellation Fee” means an amount equal to 50% of the Capture Services Fees and any applicable Surcharges.
“Capture Commitment” means the total volume of Capture Services Jobs that Customer commits to purchasing from Matterport pursuant to (and as identified in) an Order.
“Capture Services Fees” means the Fees payable in respect of the Capture Services, as indicated on the Order.
“Capture Services Job” means the performance of the Capture Services in respect of a particular Subject Property.
“Complex Property” means any Subject Property that: (a) requires a custom plan for the performance of the relevant Capture Services Job Capture Plan; (b) has particular property specific requirements (whether by reference to its physical design, location or otherwise)
“In-Network Cities” means those locations in which Capture Services operatives are located, as updated from time to time and the details of which are available via the Matterport Website or shall otherwise be provided to Customer (each an “In-Network City”).
“Large Property” means a Subject Property that is larger than 200,000 square feet in size.
“Off Hours” means a required start time for the performance of a Capture Services Job of between 19:01 - 06:59, in the time zone in which the relevant Subject Property is located.
“Off Hours Surcharge” has the meaning given in Clause 5.6 of these Capture Services Terms.
“Property Information” means the information regarding each Subject Property to be provided via the Subject Property Form and which shall include, without limitation, details of: (a) the location (including the address) of each Subject Property; (b) the size (in square feet) of each Subject Property; (c) the name and contact details of the relevant On-Site individual(s) who will grant Matterport and/or Third-Party Operatives access to each Subject Property; (d) any applicable safety rules and procedures which are in force (or otherwise apply) at each Subject Property and with which Customer requires the relevant Third-Party Operative to comply; (e) any particular hazards (or similar) at each Subject Property.
“Relevant Time” has the meaning given in Clause 2.3 of these Capture Services Terms.
“Subject Property Form” means the form made available to Customer by Matterport via which the Property Information must be provided to Matterport.
“Surcharge” means, as applicable, the Travel Surcharge and the Off Hours Surcharge.
“Third-Party Operative” means a third-party sub-contractor appointed by Matterport to perform the Capture Services for and on Matterport’s behalf.
“Travel Surcharge” has the meaning given in Clause 5.7 of these Capture Services Terms.
2. Provision of Capture Services
2.1 Subject to the terms, the Terms of Use and PSA, and in consideration of the payment of the Capture Service Fees (and any relevant Surcharges), Matterport hereby agrees to procure the performance of the Capture Services at (and in respect of) each Subject Property. Without prejudice to the generality of Matterport’s rights to assign its rights under, grant any trust in respect of, or sub-contract, the whole or any part of these Capture Service Terms to any one or more persons. Customer agrees not to withhold its consent to a novation of these Capture Service Terms by Matterport to any person, Customer acknowledges and agrees that each Third-Party Operative who performs the Capture Services on behalf of Matterport shall be a third-party sub-contractor of Matterport and shall not be employed by Matterport.
2.2 To commence a Capture Services Job, Customer shall provide Matterport with a completed Subject Property Form. Customer is solely responsible for providing accurate information about each Subject Property via the Subject Property Form and shall be liable for any costs incurred by Matterport arising out of or in connection with any incorrect information that is given.
2.3 Following the return of the completed Subject Property Form to Matterport, the Parties shall mutually agree in writing the date(s) and time(s) on which the Capture Services Job(s) shall be performed (the “Relevant Time”). In the event that Matterport identifies a Subject Property as being either a Large Property or a Complex Property, Matterport shall notify Customer of this via email and the terms set out in Clause 5.4 of these Capture Services Terms shall apply.
2.4 The Capture Services must be completed within the Capture Period (as set out in the Order), such that the full Capture Commitment is exhausted during such period (by virtue of the Capture Commitment being proportionally reduced in respect of each completed Capture Services Job). Any portion of the Capture Commitment that is not used within the Capture Period will be automatically forfeited by Customer, with no further action being required to be taken by either Party in such circumstances. Customer will not be entitled to a refund or credit towards other Services, for any unused portion of the Capture Commitment in respect of which Fees have been paid.
3. Matterport Obligations
3.1 Matterport shall ensure that the Third-Party Operative who performs each Capture Services Job shall comply with all reasonable applicable safety rules and procedures which are in force (or otherwise apply) at a Subject Property, provided that details of such rules and procedures (including, where relevant, copies of the same) are provided to Matterport no less than twenty-four (24) hours before the commencement of any Capture Services Job.
3.2 For the avoidance of doubt, Matterport acknowledges and agrees that all Matterport equipment that is utilised in relation to the provision of a Capture Services Job shall be Matterport’s sole risk and responsibility whilst utilised or otherwise held at the Subject Property.
3.3 Matterport hereby warrants that any and all Intellectual Property Rights which may arise in connection with the performance of the Capture Services by a Third-Party Operative and which vest in such Third-Party Operative are legally and beneficially assigned to Matterport.
4. Customer Obligations
4.1 Customer is responsible for providing appropriate access to each Subject Property at the Relevant Time. If the Third-Party Operative is unable to: (a) access a Subject Property (or relevant area thereof in respect of which the Capture Services have been ordered) at the Relevant Time; or (b) contact the Customer’s On-Site Contact, the relevant Capture Services Job shall be cancelled by Matterport and the terms of Clause 5.9(a) of these Capture Services Terms shall apply.
4.2 Customer hereby warrants and represents to Matterport that: (a) it has all necessary rights, permissions, and licenses to permit Matterport to: (i) procure the provision of the Capture Services by the Third-Party Operative at each Subject Property; and (ii) host and display the resulting Matterport Space on the Platform; and (b) the Property Information shall be complete and accurate.
4.3. Customer shall ensure that it complies and shall ensure that each of its personnel and employees present at each Subject Property at the Relevant Time comply, with Matterport’s COVID-19 Guidelines (details of which are set out on the Matterport Website).
5. Fees and Payments
5.1. Capture Services Fees - General. Subject to Clause 5.4 of these Capture Services Terms with respect to Large Properties and Complex Properties, the Capture Services Fee payable in respect of a Subject Property will be determined by reference to the cumulative square footage identified by Customer on the associated Subject Property Form and the rates identified in the Order. If a Subject Property is determined by Matterport to be larger than identified in the Subject Property Form, Customer shall be subject to additional charges based on such rates. Customer acknowledges and agrees that Capture Service Jobs that require the performance of Capture Services at multiple Subject Properties cannot exceed a cumulative total of 50,000 sq. ft (4,645 sq. m).
5.2. Notwithstanding anything to the contrary in the Terms of Use or PSA, but subject to Clause 5.3 of these Capture Services Terms, the Parties acknowledge and agree that the Capture Services Fees payable by reference to Customer’s Capture Commitment shall be invoiced in equal quarterly instalments, commencing on the Order Effective Date (as set out in the Order). Any additional amounts or unbilled balances, where applicable, will be invoiced at the end of the Order Initial Term or any subsequent renewal period (as applicable).
5.3. In the event that full amount of the Capture Commitment is exhausted by Customer prior to the expiry of the Capture Period, then, notwithstanding the terms of Clause 5.2 of these Capture Services Terms, Matterport shall be entitled to immediately invoice Customer is respect of the full amount of the Capture Services Fees that remain outstanding in respect of the exhausted Capture Commitment. Should Customer require the provision of further Capture Services, Customer shall immediately enter into a new Capture Commitment (which shall be subject to the terms set out in this MEA). Customer acknowledges and agrees that in the event that Customer requires the provision of further Capture Services and fails to enter into a new Capture Commitment, such Capture Services shall be performed subject to Matterport’s standard Capture Services terms (and not, for the avoidance of doubt, the terms set out in this MEA).
5.4. Large Properties and Complex Properties. Where a Subject Property is determined by Matterport in accordance with Clause 2.3 of this Capture Service Terms to be a Large Property and/or a Complex Property, the Capture Services Fees payable in respect of the provision of Capture Services at such Subject Property shall be determined by Matterport on a bespoke basis (and not by reference to the standard fee table set out above).
5.5. Discounts. Any applicable discounts to which Customer is entitled will be applied to the sum of all Capture Services Fees associated with a Capture Services Job, exclusive of any applicable Stitching Fees (as set out in Clause 5.8 below).
5.6. Off Hours Surcharge. If a Capture Services appointment requires a start time during the hours of 7:01pm - 6:59pm local time of the property to be captured, a 25% surcharge will be added to the Capture Services Fee (the “Off Hours Surcharge”).
5.7. Travel Surcharge. If a Subject Property is located outside of an In- Network City, Customer shall be obliged to pay a travel surcharge in addition to the Capture Services Fees, in the amount notified to Customer by Matterport following the submission of the completed Subject Property Form (the “Travel Surcharge”). The Travel Surcharge shall be payable by Customer in the currency specified on the Order.
5.8. Stitching Fee. Matterport Spaces that are created in respect of a Subject Property with an area in excess of 50,000 sq. ft may require combining in a process known as “stitching”. In such circumstances, an additional fee in the amount identified in the Order will be applied (a “Stitching Fee”). For the avoidance of doubt, any discount(s) applied to the Capture Services Fees payable by Customer will not apply to any Stitching Fee. Further details regarding the terms which shall apply to the provision of stitching services are set out in Appendix 5 of this MEA.
5.9. Cancellation. In the event that Customer requires the cancellation or rescheduling of a Capture Services Job:
(a) less than 24 hours before the Relevant Time, Customer shall be obliged to pay Matterport a Cancellation Fee, and 50% of the Capture Commitment attributable to the relevant Capture Services Job shall be deducted from Customer’s total remaining Capture Commitment; or
(b) more than 24 hours before the Relevant Time, the performance of the Capture Services Job may be rescheduled for an alternative date and time mutually agreed to by the Parties (and, for the avoidance of doubt, no Cancellation Fee shall be charged, and Customer’s Capture Commitment shall be unaffected by such cancellation).
6. Limited Warranty
Notwithstanding Clause 10 of the Terms of Use, Matterport hereby warrants that the Capture Services will be performed in a professional and workmanlike manner. For any breach of this warranty, Customer’s sole and exclusive remedy, and Matterport’s entire liability shall be the re-performance of the non-conforming Capture Services. In the event that Customer regards the foregoing warranty as having been breached, it shall notify Matterport of this in writing within ten (10) days of the completion of the performance of the relevant Capture Services. Matterport shall have no liability in respect of any warranty claim brought after the expiry of this period. THE WARRANTY AND REMEDY IN THIS CLAUSE 6 IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, USEFULNESS, OR TIMELINESS.
7. Indemnity
Subject to the provisions of the Terms of Use, Matterport shall defend and hold Customer harmless from all Third-Party Claims and associated Losses arising from the personal injury, death or property loss or damage caused by the negligence or wilful misconduct of Matterport and/or the relevant Third-Party Operative in the performance of the Capture Services, provided that, in respect of any claim made pursuant to this Clause 7: (a) Customer shall promptly, and in any event within five (5) days, provide Matterport with written notice of the Third-Party Claim; (b) Customer provides all reasonable information and cooperation to Matterport in the defence and settlement of the Third-Party Claim (at Matterport’s expense); and (c) Matterport is given sole authority to defend or settle the Third-Party Claim. Matterport shall not be liable for any costs or expenses incurred by Customer without Matterport’s written authorisation.