Matterport Scenes End User License Agreement

Last updated: November 1, 2016

This Matterport Scenes 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 Scenes application (the “App”).

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT AND YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING AND SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU DO NOT HAVE THE RIGHT TO INSTALL OR USE THE APP.

Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting, such changes to be effective prospectively. Thus, You should check here periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the App. Your continued use of the App after a change has been posted constitutes Your acceptance of the change thereafter.

  1. Parties. This Agreement is between You and Matterport only, and not any third-party distribution channel or third-party equipment manufacturer, or any other third party. Third-party distribution channels for the App, such as Google Play, may have their own terms of use and privacy policy that govern Your use of their services, and neither this Agreement nor the Matterport Privacy Policy will govern any such use. Your use of these third-party services is beyond the control of Matterport, and, except as otherwise expressly set forth in this Agreement, Matterport is not responsible for the obligations or privacy practices of these third-party distribution channels. However, Matterport is solely responsible for the App and the content thereof.
  2. Use of the App; Imprecision of Measurements. Provided that You are running the App on a suitable mobile device that has the necessary 3D scanning hardware and technology, You will have the ability to capture, process, modify, save and display through the App three dimensional models of physical spaces or objects (“Models”). In addition, You will have the ability to share Models with others in ways supported by the App and to display Models that are shared with You.
    The performance of Models will vary based on Your mobile device running the App. Matterport will support third-party mobile devices in its sole discretion. Matterport has the right to make changes to the App, including adding, modifying or removing features, at any time without notice. Without limiting the generality of the prior sentence, Matterport has the right to change the file format(s) of the Models, to modify certain rights and/or restrictions relating to use of Models, and to modify the ways in which You may share Models, including without limitation requiring You to share Models only through Matterport’s online portal. Any use of such portal will additionally be governed by the terms and conditions for such portal.
    The App will also allow You to measure the distance between any two points in the Model. You acknowledge and agree that measurements of Models taken within the App are inherently imprecise due to dimensioning capabilities and imperfect quality of captured Models, and such measurements must not be used for any purpose requiring exact measurements. Any information provided by Matterport about the accuracy of measurements of the App is an estimation only and should not be relied upon as a performance specification for the app.
  3. Ownership; Feedback. You acknowledge that the software code underlying the App and Models is Matterport’s confidential and proprietary information. At all times, Matterport and its licensors will retain ownership of all proprietary rights in and to the App and any technology of Matterport embodied in the Models (the “Matterport Technology”), and any copies thereof, including any copyright, patent, trade secret, trademark or other intellectual property rights therein, look and feel thereof, and any derivatives of the foregoing. Matterport and its licensors reserve all rights that are not specifically granted to You hereunder.
    As between You and Matterport, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own the copyrights in the point cloud data of all Models that You capture and process using the App (excluding any Matterport Technology embodied in such Models) and any Model-related metadata that You input into the App, such as Model names and descriptions.
    Matterport may solicit, or You may elect to volunteer, feedback, ideas or other suggestions regarding the App (“Feedback”). You will not be obligated to provide Feedback to Matterport. However, if You elect to provide any Feedback, You hereby assign to Matterport, all right, title and interest (including, without limitation, all intellectual property rights including patent rights, copyrights and trade secrets) in such Feedback. Without additional consideration, You agree to perform all acts reasonably necessary for Matterport to perfect and enforce such rights.
  4. Limited License. Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement to: (a) download, install and use the App for lawful purposes solely for capturing, processing, modifying, displaying and sharing Models (as limited by the version of the App that You are running), and only on a mobile device that is capable of running the App and that You own or control; (b) to use any Matterport Technology embodied in the Models for the sole purpose of displaying the Models; and (c) reproduce and distribute the Matterport Technology solely to the extent embodied in Models and solely for the purpose of sharing Models as specifically described in this Agreement. You acknowledge and agree that when You share Models with others You are directly granting such users all of Your rights in such Models necessary to download, store and display such Models.
  5. License Restrictions. Except as expressly set forth in this Agreement, You shall not, directly or indirectly, in whole or in part: (a) copy the App, except for downloading the App from an authorized distribution channel, such as Google Play, onto Your mobile device capable of running the App as authorized under the license granted herein; (b) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App; (c) cause or permit any reverse engineering or decompilation of any Model (or any component thereof, including without limitation any Matterport Technology embodied in such Model); (d) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Matterport’s prior written consent; (e) modify, or create derivative works based upon, the App (or any component thereof, including without limitation associated technology) or any Matterport Technology embodied in any Model; (f) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; or (g) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the App or Models, or adversely affects Matterport’s right, title or interest in or to the App or Models. You shall not use the App to capture, store or share: (i) any content subject to copyright that is not Your original work, unless You have permission from the rightful owner; (ii) any confidential or private information of any third party without the express consent of such third party; (iii) any content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (iv) any content that infringes or misappropriates any third-party intellectual property right, or is invasive of any privacy or publicity right.
  6. 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, and deleting all copies 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.
  7. Warranty Disclaimer. THE APP IS PROVIDED “AS IS.” MATTERPORT MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MATTERPORT MAKES NO WARRANTY REGARDING THE QUALITY OF THE APP, THAT THE APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP WILL MEET YOUR REQUIREMENTS. MATTERPORT MAKES NO WARRANTY OR GUARANTEE WHATSOEVER REGARDING THE ACCURACY OF ANY MEASUREMENTS TAKEN THROUGH THE USE OF THE APP. 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. Privacy. Matterport may use certain information collected through the App as generally described in Matterport’s Privacy Policy (available at www. matterport.com/legal/privacy-policy), which is incorporated herein by reference. Through Your use of the App, You consent to the collection and use (as set forth in the Privacy Policy) of information we and our service providers collect from You, including the transfer of this information within and between the United States and/or other countries for storage, processing, and use by Matterport, its affiliates and service providers, and third parties with which it has strategic relationships. Third-party distribution channels for the App, such as Google Play, may also track Your usage of the App and use and disclose such information as described in the privacy policies of such channels. Such disclosure may include disclosure of App usage to Matterport. Neither this Agreement nor the Matterport Privacy Policy will govern any such collection, use or disclosure, and we encourage You to read the posted privacy policy of these channels whenever interacting with their services. Matterport is not responsible for the privacy practices of these channels. When You use supported features in the App to communicate over Wi-Fi and cellular networks, You acknowledge that transmitting data over such networks is not 100% secure or free from risk of compromise.
  9. Technical Support. Matterport may, but is not obligated to, provide maintenance or other technical support for the App. Nothing in this Agreement obligates Matterport to support or provide You with updates or error corrections to the App. Matterport reserves the right to discontinue support for the App at any time.
  10. Third-Party Claims; Product Claims. As between the parties to this Agreement, You are responsible for all point cloud data of Models that You capture and process through the App, including for the accuracy, legality and integrity of such content. You shall defend, indemnify and hold harmless Matterport, its affiliated companies, and their respective officers, directors, employees and representatives from and against all claims, actions or suits by any third party, including all associated liability, judgments, fines, losses, costs, damages, and settlements, including reasonable legal fees and expenses, arising out of or relating in any way to: (a) Your breach of any of Your covenants, representations and/or warranties set forth in this Agreement; or (b) Your capture, use, sharing, distribution, display or publication of any Model. In the event of a claim in respect of which Matterport seeks indemnification from You hereunder, Matterport will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys; provided, however, that You shall not settle any claim unless such settlement completely and forever releases the indemnified Matterport party from all liability with respect to such claim or unless the indemnified Matterport party consents to such settlement in writing.
    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. Nothing in this Agreement shall be deemed an admission that any such claims may arise.
  11. 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS HAVE ANY LIABILITY OF ANY NATURE FOR ANY HARM THAT IS BASED ON OR ARISES OUT OF THE INACCURACY OF ANY MEASUREMENTS TAKEN THROUGH THE USE OF THE APP, OR RELIANCE ON THE ACCURACY OF ANY SUCH MEASUREMENTS. IN ADDITION, IN NO EVENT WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY THIRD-PARTY USE OR REDISTRIBUTION OF ANY MODEL THAT YOU SHARE. 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.
  12. Health and Safety Warnings. TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT OR PROPERTY DAMAGE, YOU SHALL ENSURE THAT, BEFORE USING THE APP, ALL USERS OF THE APP READ CAREFULLY ALL HEALTH AND SAFETY WARNINGS PROVIDED TO YOU BY THE MANUFACTURER OF YOUR MOBILE DEVICE.
  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. Compliance with Law. You represent and warrant that: (a) 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 (b) 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. 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 Santa Clara County, California, and the parties specifically consent to Santa Clara County, 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. 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 effect 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 Your use of the App, and supersedes any and all prior agreements and representations between Matterport and You related to the same subject matter. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (a) 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 Drive, Sunnyvale, CA 94089, Attn: Legal Notices; or (b) if to You, by in-App notification, email, or by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier to Your mailing address set forth in Your Matterport Portal registration. No amendment of any provision of this Agreement shall be effective unless made in accordance with preliminary paragraphs hereof or set forth in a writing signed by a representative of Matterport and You, and then only to the extent specifically set forth therein.
  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 Drive, Sunnyvale, CA 94089.