Last updated: August 15, 2023

This PSA replaces and supersedes all previous versions of the PSA and Cloud Subscription Agreement referenced in any Order dated on or after August 15, 2023.

Click here to jump to Matterport’s SDK/API Terms.

Click here to jump to Matterport’s Professional Services Terms.

Click here to jump to Matterport’s Enterprise Addendum.

BY CREATING AN ACCOUNT, ACCESSING, OR CONTINUING TO USE THE SERVICES PURSUANT TO AN EXISTING AGREEMENT, OR CLICKING THAT YOU AGREE WHEN PROMPTED BY MATTERPORT, YOU AGREE TO BE BOUND BY THE FOLLOWING PLATFORM SUBSCRIPTION AGREEMENT, AND ANY APPLICABLE SCHEDULES THAT FORM A PART HEREOF (“PSA”). IF YOU ARE ENTERING INTO THIS PSA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS PSA, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.

This PSA is entered into between Customer (“Customer”) and Matterport Inc., (“Matterport”), with its headquarters located at 352 East Java Drive Sunnyvale, CA 94089, as of the date of Customer’s first use of the Services, the Order Effective Date as set out in an Order, or the date Customer’s Platform Subscription is activated by Matterport (“Effective Date”).

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. 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.

 

1. Definitions and Interpretation

Capitalized definitions used herein are defined in the Appendix. Any capitalized terms used but not defined in this PSA shall have the meanings set forth in the Terms of Use or any other applicable terms or Documentation applicable to the services.

 

2. Provision of Services

Platform Subscription Services.

2.1. Commencement of Platform Services. Customer’s Platform Subscription shall, unless specified otherwise in the relevant Order, commence on the later of (i) the date Matterport first provides Customer the ability to access the Platform,(ii) the effective date specified in an Order with Matterport (or an Authorised Reseller pursuant to Paragraph 13), or (iii) the date of any upgrades pursuant to an Order (such date being the “Platform Subscription Commencement Date”) 

2.2. Licence to Platform Subscription Services. Subject to the payment of all Platform Subscription Fees that are due and payable as of Platform Subscription Commencement Date, and Matterport’s rights to suspend and terminate services as set out in the Terms of Use and in Paragraph 11 below, Matterport hereby grants to Customer, a non-exclusive, revocable, worldwide, non-transferable (except as expressly permitted in the Terms of Use), non-sublicensable, limited right to use and access the Platform Subscription Services during the Subscription Period, solely for Customer’s internal business operations and in each case in accordance with the relevant Documentation.

2.3. NOTICE OF AUTOMATIC RENEWAL. Customer’s Platform Subscription shall remain in place for the Initial Subscription Period, following the expiry of which it shall automatically renew for successive periods of equivalent length to the Initial Subscription Period (each such period being a “Renewal Period”), unless terminated earlier in accordance with its terms. Such renewal will occur automatically on the applicable anniversary of the Platform Subscription Commencement Date. Either Party may terminate the Platform Subscription for convenience by providing the other with written notice of not less than thirty (30) days prior to the expiration of the Initial Subscription Period or the then-current Renewal Period so that the Subscription Period will end on the last day of the current subscribed period. Customer’s Platform Subscription may be cancelled at any time by accessing the account settings on Customer’s Matterport Platform Account at https://my.matterport.com/. Customer agrees that upon such renewal, the credit card or other designated payment method in Customer’s account settings will be billed the applicable Platform Subscription Fee for Customer’s Platform Subscription Plan then in effect at the time of renewal.

2.4. Platform Subscription Plans. Customer may have the ability to select from several Subscription Plans which are set out in the Matterport Website or in an Order and updated from time to time (a “Platform Subscription Plan”). Matterport reserves the right to modify the features of any Subscription Plan at any time, subject to any Subscription Plan features agreed in an Order for the Subscription Period of such Order.

2.5. Affiliates.

2.5.1. The Parties each acknowledge and agree that Customer's Affiliates shall be entitled to place Orders with Matterport pursuant the terms of this PSA, subject to:

2.5.2. the compliance by each such Affiliate with the terms of this PSA (it being acknowledged that, save to the extent expressly stated otherwise (including, without limitation, in Clause 12.3), the terms of this PSA shall apply to such Affiliate in the same manner and to the same extent as such terms apply to Customer); and

2.5.3. Customer shall remain liable for the acts and omissions of any such Affiliate; and

2.5.4. In the event that Customer or its Affiliate wishes to enter into a new Order, it shall notify Matterport and Matterport shall prepare a new Order. Following the execution of the order form by both Matterport and Customer (or its Affiliate, as applicable), the order form shall constitute a valid and binding Order for the purposes of this PSA.

2.6. Trials. Matterport may, in its sole discretion, offer Customer a free of charge trial in order to enable Customer to test and experience the Platform Subscription Services (a “Trial”). Where applicable, Customer’s Trial will commence on the date notified to Customer in writing by Matterport, immediately prior to which Customer shall be provided with access to the Platform. For the avoidance of doubt, the terms of Paragraph 5 of this PSA (Fees and Payment) shall not apply to any free Trial (provided, however, that if Customer places an Order for a Platform Subscription following the end of a Trial, Customer’s continued use and access to the Platform Subscription Services will be subject to the payment of all relevant Fees due pursuant to such Order to Matterport or an Authorized Reseller).

2.7. Additional Services.

2.7.1. From time to time, Matterport may make available through the Platform or otherwise, pursuant to an Order, additional services, optional features, and their related assets or output generated pursuant to the provision of such services (“Matterport Digital Assets”) that are not Platform Subscription Services and may require the payment of Additional Fees.  These additional services (“Additional Services”) include, but are not limited to (a) schematic floor plans created from a Matterport Space (”Schematic Floor Plan Services"); (b) “BIM files”, from Customer’s existing Matterport Spaces (“Matterport BIM File Services”); (c) Matterport’s creation of a standard .obj export file, point cloud file, RCP file or other supported file (or set thereof) that is exportable from Customer’s existing Matterport Spaces and which can be utilized by Customer outside of the Platform (“MatterPak File Services”) (d) TruePlan files from Customer’s existing Matterport Spaces stored on the Platform (“TruePlan Services”); (e) files generated by Matterport in the format “.E57” containing a high-density point cloud for all scan locations in a Matterport Space “Matterport E57 File”); or (f) retrieval of an Archived Space 

2.7.2. All use of Additional Services shall require Customer to designate and make available to Matterport the Matterport Space(s) in respect of which Customer is requesting the Additional Services. Customer will be invoiced at the end of each calendar month in respect of each Matterport Digital Asset which has been successfully made available to view and download from the Platform during the preceding calendar month. Subject to the payment of all applicable Additional Fees to Matterport or an Authorized Reseller, Customer shall have the right to download the associated Matterport Digital Assets an unrestricted number of times during the Subscription Period. Matterport reserves the right to terminate the Additional Services at any time in its sole discretion, provided however that in such circumstances, Matterport or an Authorized Reseller, as applicable, will provide Customer with a refund in respect of any amounts paid to Matterport in advance which relate to Additional Services which have not, as at the date of termination of the relevant Additional Service, been provided to Customer. Once the Additional Services terminates, Matterport will have no further obligation to create or provide any further Additional Services ordered or requested after the date of termination.

2.7.3. NOTICE OF AUTOMATIC RENEWAL. Subject to Paragraph 2.8.1 of this PSA, Customer’s subscription in respect of each Additional Service shall, unless specified otherwise in the relevant Order, commence on effective date specified in the relevant Order and remain in place for the duration of the specified subscription period (the “AS Subscription Period”), following the expiry of which it shall automatically renew for successive periods of equivalent length to the AS Subscription Period (each such period being a “AS Renewal Period”), unless terminated earlier in accordance with its terms. Either Party may terminate an Additional Service Subscription for convenience by providing the other with written notice of not less than thirty (30) days prior to the expiration of the AS Subscription Period or the then-current AS Renewal Period so that the Subscription Period will end on the last day of the current subscribed period. Customer’s subscription in respect of each Additional Service may be cancelled at any time by accessing the my.matterport.com page on Customer’s Matterport Platform Account.

2.7.4. The provisions set out in this Paragraph 2.8. of this PSA shall not apply with respect to the Matterport BIM Service, the term of any subscription in respect of which shall remain in force only for the duration specified in the relevant Order.

2.8. Additional Functionality. To the extent that Customer places an Order which requests the use of and access to Additional Functionality, the provision of such Additional Functionality (and Customer’s access to and use of the same) shall be governed by the terms set out in Schedule 1 to this PSA. 

2.9. Third-Party Services. From time to time, Matterport may make Third-Party Services available through the Platform, the use of which may (in each case) be subject to: (a) the payment of Additional Fees; and (b) Customer’s acceptance of the terms and conditions of the relevant Third-Party Contract (which shall be presented to Customer for acceptance in accordance with the terms set out in Paragraph 7 of this PSA (Third-Party Services)). If Customer does not agree to abide by the applicable Third-Party Contract, then Customer should not install, access, or use such Third-Party Services.

 

3. Customer’s Use of and Access to the Platform and Services

3.1. Provision of Access. Upon the commencement of Customer’s Subscription Period, Customer shall be provided with User Credentials (or otherwise provided with the means to generate User Credentials), following which Customer may allow its Authorized Users to use the Platform Subscription Services (and, where relevant, Additional Services) for the purposes set out in this PSA, and Customer is responsible for their compliance with the terms set out herein.

3.2. Use Restrictions. Without prejudice to the terms set out in paragraph 2 of the Terms of Use, Customer shall further not (and shall not permit any Authorized Users to, either directly or indirectly, in whole or in part to

3.2.1. use the Platform, the Additional Services or the Additional Functionality, for any purpose other than as set out in or as otherwise permitted by the Terms of Use or this PSA.

3.2.2. use any deep-link, page-scrape, spider, robot, crawl, index, or other automatic device, program, algorithm, or technology to use, access, copy, acquire information from, generate impressions on, input information to, store information on, search on, generate searches on or monitor any portion of the Platform, other than as explicitly permitted by Customer’s Platform Subscription and/or any Matterport API.

 

4. Customer's Responsibilities

4.1. Acceptable Use. Customer will not (and shall ensure that each Authorized User does not) use the Platform Services or the Additional Functionality for any unlawful, fraudulent, offensive, or obscene activity in violation of Matterport’s Terms of Use and shall ensure that all usage of the Platform Services and, where relevant, the Additional Functionality, by Customer and its Authorized Users is at all times in compliance with the terms of this PSA and the Terms of Use.

4.2. Responsibility for Customer Image Data. Customer is solely responsible for the development, content, operation, maintenance, accuracy, legality, integrity and use of Customer Image Data and shall ensure that Customer Image Data does not comprise: (a) any content which Customer does not own or otherwise have an appropriate license, consent or permission in respect of; (b) any content that is or is otherwise reasonably considered by Matterport to be harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (c) any content that infringes or misappropriates any third-party right (including Intellectual Property Rights), or is invasive of any privacy or publicity right. For the avoidance of doubt, Customer shall obtain in advance all consents, approvals, licenses, and permissions necessary to capture and use imagery of any Subject Property. Matterport shall have the right (but not the obligation) in its sole discretion and at any time to remove from the Platform any Customer Image Data that violates this PSA, the Documentation, or that is otherwise objectionable.  

4.3. Responsibility For Appropriate Designation. 

4.3.1. Generally. Customer has the ability to designate any Matterport Space or Customer Image Data hosted on the Platform as “private” (i.e., only accessible by Customer via the Platform), “restricted” (i.e., accessible by anyone that possesses the related password or link), or “public” (i.e., accessible by anyone on the internet and publicly available and discoverable on the Platform). Customer acknowledges this is a feature which is a part of, and cannot be removed from the Platform, and Customer is solely responsible for ensuring the appropriate designation of its Spaces. 

4.3.2. Third-Party Interaction. In the event that Customer designates a Matterport Space or Customer Image Data as “public” or “restricted” access, Customer acknowledges that third parties may interact with such Matterport Space or Customer Image Data (which shall include being permitted to take measurements, adding annotations or comments, saving and sharing links to such Matterport Space or Customer Image Data), and any rights (including Intellectual Property Rights) that arise as a result of such third-party interactions shall be solely owned by Matterport. 

4.3.3. Public Links. In the event Customer designates any Matterport Space or Customer Image Data as “public” and publicly shares, or otherwise makes available on the internet a link to any Matterport Space, Matterport shall not be responsible for the resulting discoverability or accessibility of the Matterport Space or Customer Image Data on the Platform, and Matterport will have the same right to share such link as any other internet user.

4.4. Matterport Digital Assets. Customer shall be responsible for: (a) any content of the Matterport Spaces; (b) the content of any Matterport Digital Assets created from the Matterport Spaces; and (c) the consequences of sharing or publishing any Matterport Digital Assets, including (without limitation) the disclosure of Customer’s confidential information or Customer Personal Data. Customer hereby affirms, represents, and warrants that Customer owns or has the necessary licenses, rights, consents, and permissions necessary for the creation of any Matterport Digital Assets.

4.5. User Credentials. Customer is responsible for keeping its User Credentials secure and confidential and shall, where applicable, take steps to ensure that all Authorized Users do the same. Customer is (and, where applicable, each Authorized User is) prohibited from selling or transferring (or seeking to sell or transfer) any User Credentials to any other person or entity. Customer will promptly notify Matterport if Customer becomes aware of any unauthorized access to User Credentials. Customer is responsible for maintaining and managing its User Credentials and authorised account administrators.

4.6. Account Data. Customer shall provide Matterport with complete and accurate information for Customer’s Platform account, including Customer’s billing and payment information, and shall ensure that such information remains up to date throughout Customer’s Subscription Period. From time to time, Matterport may require certain additional information from Customer in order to maintain Customer’s account, or to satisfy certain government and regulatory requirements. Customer agrees to provide such information in a timely fashion.

 

5. Fees and Payments

5.1. Fee Increases. Matterport reserves the right to increase or otherwise modify any applicable Platform Fees at any time by posting details of the revised Platform Fees the Matterport Website, provided that the revised amount of such Platform Fees shall not apply to Customer until: (a) with respect to Platform Subscription Fees, the commencement of the next Renewal Period; b) with respect to Services subject to AS Subscription Fees, the commencement of the next AS Renewal Period; and (c) with respect to any other Additional Fees, at such time as the relevant Service in respect of which the relevant Additional Fees are payable is consumed or renewed in a subsequent Order.

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.

 

6. Service Levels and Support

6.1. Service Levels. Subject to the terms and conditions of this PSA, Matterport shall use commercially reasonable efforts to make the Platform available, exclusive of downtime necessary for scheduled and emergency maintenance.

6.2. Support. During the Subscription Period, Matterport shall provide reasonable technical support (including clarification of the functions and features of Platform Subscription Services and guidance regarding their operation but excluding any form of specific consulting). 

 

7. Third-Party Services

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 agent 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.

7.2. Customer acknowledges and agrees that Matterport is a third-party beneficiary of each Third-Party Contract and may, where relevant, therefore enforce such Third-Party Contract against Customer. 

7.3. Matterport will make available to Customer, in respect of each Third-Party Service that is purchased by Customer, a link to the applicable Third-Party Contract. In respect of some Third-Party Services, Matterport may facilitate the payment of Fees due in respect of a Third-Party Service to the relevant Third-Party Provider (however, for the avoidance of doubt, the pricing applicable to all Third-Party Services is determined by the Third-Party Provider (in each case)). 

7.4. If Customer chooses to purchase any Third-Party Service: (a) Customer agrees that Matterport may provide or make available all necessary Customer Image Data to the relevant Third-Party Provider(s) in connection with the Third-Party Service; (b) if applicable, Customer agrees to designate to Matterport the Customer Image Data that Customer desires to use in connection with the Third-Party Service; (c) Customer shall be responsible for: (i) any Customer Image Data that Customer designates for use; (ii) content created from any such Customer Image Data; and (iii) the consequences of sharing or publishing such Customer Image Data or content generated from the Customer Image Data, including without limitation the disclosure of Customer’s confidential information or Customer Personal Data; and (d) Customer affirms, represents, and warrants that Customer owns or has the necessary licenses, rights, consents, and permissions to use Customer Image Data in connection with any Third-Party Service. 

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 (4) 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.

 

8. Privacy, Data Security & Confidentiality

8.1. Customer shall not via any means provide or make available to Matterport any special category data (as such term is defined in the UK GDPR or other applicable privacy laws).

8.1.1. Without prejudice to the foregoing, Customer agrees that neither Customer nor any Authorized User shall intentionally upload any Personal Data (as such term is defined in the UK GDPR or other applicable privacy laws) to the Platform. Customer shall take all steps reasonably necessary to ensure the risk of the unintentional capture of Personal Data by the Platform (howsoever arising) is minimized. 

8.1.2. Without prejudice to Paragraph 8.1 of this PSA, to the extent that any Personal Data is captured in or is otherwise evident from Customer Image Data, Customer shall ensure that it has obtained (or are otherwise in possession of) all necessary rights, permission or consents necessary to enable the upload of such Customer Image Data to the Platform. All such Personal Data shall be processed by Matterport in accordance with Matterport’s Privacy Policy and, where relevant, Matterport’s Data Processing Addendum. Customer acknowledges that, if Customer purchases Platform Services or other Matterport services from an Authorized Reseller, in order to permit Matterport to provision such services, such Authorized Reseller may share Customer Personal Data with Matterport, or Matterport may share Customer Personal Data with such Authorized Reseller. Customer hereby expressly consents to such disclosure and use of Customer Personal Data.

8.2. Data Security. Matterport shall implement and maintain appropriate security measures (including, among other things, technical, physical, and organizational measures) for the purposes of securing the Services. Further details of such measures may be found on the Matterport Website, here: https://matterport.com/legal/security-practices.

8.3. Confidentiality.

8.3.1. In the event Customer discloses any confidential information to Matterport, Matterport will maintain the confidentiality of Customer’s confidential information and to use it only for purposes related to the performance of this PSA. Matterport further agrees to protect Customer’s confidential information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, and to disclose such information only to those of its employees and agents who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those set forth herein. 

8.3.2. None of the obligations or restrictions set forth in this Paragraph 8 shall apply to Matterport’s use and disclosure of Customer Image Data, Aggregated Data, or to Matterport’s distribution to third parties or public display of any Matterport Space or Customer Image Data to the extent such distribution or publication was directed by Customer or any Authorized User via the Services or otherwise.
 

9. Intellectual Property Rights

9.1. General Ownership. As between Customer and Matterport, (a) Matterport owns all right, title, and interest, including all Intellectual Property Rights, in and to the Matterport Technology; and (b) Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data.  

9.2. Ownership of Matterport Spaces. Without prejudice to Paragraph 9.1, but subject to Paragraphs 4.3 and 9.3 of this PSA, Customer shall own all rights (including Intellectual Property Rights) in and to each Matterport Space and Matterport hereby assigns to Customer, by way of a present assignment of a future right, all its right, title, and interest in and to each Matterport Space.

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.

9.4. License of Customer Data.  Subject to the terms and conditions of this PSA, Customer hereby grants to Matterport a non-exclusive, irrevocable, non-transferable (except as expressly permitted under this PSA), non-sublicensable (except as expressly permitted under this PSA), worldwide, royalty-free right and license to Customer Data: (a) during the Subscription Period, to host, reproduce, modify, process, publicly display, distribute, use and prepare derivative works from the Customer Data for the purpose of providing the Platform Services; and (b) during the Subscription Period and thereafter to create Matterport Data.

9.5. Matterport Digital Assets.  As between Matterport and Customer, all right, title and interest in and to the Matterport Digital Assets created by Matterport on behalf of Customer (and all Intellectual Property Rights therein) are and shall be owned by Matterport. Subject to the payment of all relevant Additional Fees that are due to Matterport or an Authorized Reseller in respect of the applicable Additional Services, Matterport hereby grants to Customer an irrevocable, sublicensable, non-exclusive, perpetual, worldwide license to use, evaluate, reproduce, display, and distribute each Matterport Digital Asset that is produced from the performance of the Additional Services; provided however that Customer shall ensure all such sub-licensees utilize such Matterport Digital Assets in accordance with the Terms of Use. Notwithstanding the foregoing, Customer acknowledges that Matterport Digital Assets can only be generated through the Platform (and that there are therefore technical limitations on the extent to which Matterport Digital Assets may be accessed or otherwise viewed by third parties), however, pursuant to the license herein, Customer will be free to host, reproduce and distribute any Matterport Digital Assets that Customer downloads. Customer acknowledges that it will not have the right to (a) to resell any Digital Assets; and (b) access any of the Matterport Digital Assets stored on the Platform following the expiration or termination of the Subscription Period. All rights not expressly granted herein are reserved by Matterport, and Customer may use Matterport Digital Assets only as expressly permitted by this Paragraph 9.5.

9.6. Matterport Data. Customer acknowledges and agrees that Matterport may throughout the Subscription Period: (a) monitor Customer’s use of the SaaS Services to create Usage Data; and (b) develop LPI Data and Generic Space Data. Customer further acknowledges that Matterport may (a) make Matterport Data publicly available in compliance with applicable law, and (b) use Matterport Data to the extent and in any manner permitted under applicable law (it being acknowledged, for the avoidance of doubt, that Matterport Data does not identify Customer, the Subject Property or Customer’s confidential information). For the avoidance of doubt, the Parties acknowledge and agree that Matterport shall be entitled to (i) combine Matterport Data obtained in connection with this PSA with similar data held by Matterport (whether obtained by Matterport from other customers of Matterport or from third parties); and (ii) use such combined/aggregated data to the extent and in any manner permitted by applicable law. 

9.7. Digital Millennium Copyright Act. Matterport will respond to notices of alleged infringement in compliance with the Digital Millennium Copyright Act (“DMCA”). If Customer is a copyright owner or an agent thereof, and Customer believes that any content hosted on the Platform infringes Customer’s copyrights, then Customer may submit a notification to [email protected].  

9.8. Marks. The Marks displayed on or in the Platform, the Services and the Documentation are the property of Matterport. Customer shall not: (a) use or allow the use of any Mark without the prior written consent of Matterport; or (b) take steps to alter, cover or otherwise obscure from view any Mark that is displayed on the Documentation or the Platform Services or any Matterport Space, Matterport Digital Asset or other Matterport property. In the event Customer displays any trademark, logo, service mark, trade name or other branding on any page on which Customer displays any Matterport Space or Matterport Digital Asset or in any other place where Customer promotes the use of a Matterport Space or Matterport Digital Asset, Customer shall not do so in a manner that implies, or reasonably could imply, that the whole or any portion of the Matterport Technology used to generate or provide any Matterport Space or Matterport Digital Asset is owned by Customer or any third-party. In the event that Matterport becomes aware that Customer’s use of the Marks does not comply with the terms of this PSA (as determined by Matterport in its sole discretion), Matterport shall notify Customer of this, and Customer shall remedy the relevant non-compliance in accordance with the requirements set out in such notice. Any failure to fully comply with such notice shall constitute a material breach of this PSA.

 

10. Representations, Limited Warranty and Disclaimer

10.1. Matterport Limited Warranty.  Subject to Paragraph 10 of the Terms of Use, Matterport warrants that it (a) provides the Platform Subscription Services using commercially reasonable efforts in accordance with standards generally accepted in Matterport’s industry; and (b) uses industry-standard methods designed to ensure that the Platform Subscription Services do not contain software viruses or other unauthorized or malicious code. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING WARRANTY IN THIS PARAGRAPH AND PARAGARPH 10 OF THE TERMS OF USE DOES NOT APPLY TO, AND MATTERPORT STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES.

10.2. Customer Warranty. Customer warrant that: (a) Customer own all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data and has all rights, consents and/or permissions necessary to grant Matterport the licenses of Customer Data set out in this PSA; and (b) that both the Customer Data and Customer’s use of the Platform are and shall throughout the Subscription Period be in compliance with the Terms of Use and shall not infringe the rights (including Intellectual Property Rights) of any third-party.

 

11. Effect of Suspension and Termination 

11.1. Suspension. Notwithstanding the provision of Paragraph 9 of the Terms of Use, Matterport may suspend Customer’s access to and use of the Platform Subscription Services and or Additional Services at any time on notification to Customer for any breach of any agreement between Customer and Matterport. 

11.2. Access. Upon the termination or expiry of Customer’s Platform Subscription, Customer’s access to the Platform Services (and the access of every Authorized User) will be deactivated and Customer will cease to have any ability to export any previously purchased Matterport Digital Assets or Customer Image Data in Customer’s Platform account in file formats available through functionality in Customer’s Platform account. Matterport will cease to have any obligation following the termination or expiry of Customer’s Platform Subscription to provide to Customer: (a) any Matterport Technology (including, without limitation, any technology used to display any Matterport Space); or (b) access to the Platform for the purpose of exporting Matterport Digital Assets.

11.3. Licenses Granted to Matterport. Save to the extent expressly stated to expire upon the termination or expiry of Customer’s Platform Subscription, no license granted to Matterport by Customer shall terminate as a result of the termination or expiry of Customer’s Platform Subscription and Matterport shall be entitled to continue to utilize all such licensed rights.

11.4. Deletion of confidential information and Personal Data. To the extent legally permissible, at termination or expiration of Customers Platform Subscription, and upon receipt of a written demand from Customer sent to Matterport pursuant to the Notice provision of the Terms of Use, Matterport, will delete all copies of Customer’s confidential information in its possession or under its control. All Customer Personal Data shall be deleted by Matterport in accordance with Matterport’s Privacy Policy and, where relevant, Matterport’s Data Processing Addendum.

 

12. Limitation of Liability

12.1. Generally. Notwithstanding Paragraph 11 of the Terms of Use, in no event will the total cumulative liability of either Party (whether such liability arises in contract, tort (including negligence) or otherwise) to the other Party in respect of Losses arising out of, or in connection with this PSA, exceed the total Fees paid to Matterport or an Authorized Reseller, as applicable, during the twelve (12) month period immediately prior to the date the cause of action arose. Neither Party shall be liable to the other Party (whether such liability arises in contract, tort (including negligence) or otherwise), even if such Party was notified or was otherwise aware of the possibility of such Loss, for: (a) any loss of profit, loss of or damage to data, loss of anticipated savings or interest, loss of use, loss of or damage to reputation or goodwill, the cost of procurement of substitute goods or services; or (b) any indirect, special, consequential, exemplary or reliance damages, loss, costs, claims or expenses of any kind. Matterport shall not be liable to Customer in respect of any Loss incurred by Customer as a result of: (a) the unauthorized redistribution or display of the Services (or portion thereof) by any third-party, including without limitation through any unauthorized embedded links or code on a third-party website or app; (b) any Loss arising from a failure or delay in the performance of its obligations under this PSA to the extent that such failure or delay was caused or contributed to by an act or omission of Customer or its employees, or any third-party; (c) any disruption to Services, including downtime, outages; or (d) inaccurate information received by Customer as a result of Matterport performing maintenance of the Services.

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.

12.3. Applicability to Affiliates. If applicable, and notwithstanding any other Clauses of this PSA, Customer acknowledges and agrees that in the event that a Customer Affiliate enters into an Order with Matterport: (a) any Losses incurred by such Customer Affiliate pursuant to or in connection with such Order will be treated as a Loss suffered by Customer and, to the extent that pursuant to the terms of this PSA such Loss would be recoverable by Customer from Matterport had such Loss been suffered by Customer, such Loss shall only be recoverable by Customer against Matterport; and (b) any Losses incurred by Matterport pursuant to or in connection with such Order due to an act or omission of Customer's Affiliate (or an Authorised User of such Customer Affiliate) will be treated as if such Loss had been caused by or contributed to by Customer and shall be recoverable by Matterport against Customer to the same extent that Customer would be liable to Matterport pursuant to the terms of this PSA had the relevant act or omission been committed by Customer. 

 

13. Reseller Orders

If Customer orders any Platform Services from an Authorized Reseller pursuant to an Order between Customer and the Authorized Reseller: (a) all references to an Order in this PSA shall mean the applicable the Order between Customer and the Authorized Reseller; (b) Paragraph 5 (Fees and Payments) is superseded by the terms set forth in the applicable Order between Customer and the Authorized Reseller, and fees set forth in such Order shall paid directly to the Authorized Reseller, as applicable; (c) Matterport shall provide all credits or refunds owed by Matterport to the Authorized Reseller and not to Customer, and Customer shall look to the Authorized Reseller for such credits and refunds; (d) Paragraph 6 (Service Level Support) is superseded by the applicable Order between Customer and the Authorized Reseller; and (e) Matterport shall have no responsibility or liability with respect to any failure by the Authorized Reseller to issue credits or refunds to Customer. Notwithstanding anything to the contrary, unless Matterport provides signed written authorization to Customer, no additional terms in any Order between Customer and an Authorized Reseller shall be binding on Matterport, and this PSA shall prevail in the event of any conflict between this PSA and any Order between Customer and an Authorized Reseller.

 

14. Publicity Rights

Unless Customer notifies Matterport in writing that Customer do not wish for Matterport to list Customer’s name and logo, Matterport will have the right to include, Customer’s name and Customer’s logo (if any) in any lists that identifies customers of Matterport, including but not limited to on the Matterport Website, sales collateral, and marketing materials.

 

15. Force Majeure

Neither Party shall be considered in breach of, or have any liability under this Agreement for any delay or failure in performance under this Agreement arising as a result of any occurrence of a Force Majeure. The delayed Party shall send written notice of the delay and the reason thereof to the other Party as soon as possible, and the time for performance of the relevant Party’s obligations hereunder shall automatically be extended for a period equal to the duration of any such delay. The delayed Party shall (a) use commercially reasonable endeavours to avoid or minimise the consequences of the event of Force Majeure; (b) carry out its obligation in such other way as may be reasonably and commercially practicable; and (c) use  commercially reasonable endeavours to bring the Force Majeure in question to an end as soon as reasonably practicable. This Paragraph 15 shall not be construed as relieving either Party from its obligation to pay any sums due to the other Party.

 

1. Definitions Appendix

In this PSA, the following words and expressions shall have the following meanings, unless the context requires otherwise:

“Additional Fees” means, if applicable, Additional Functionality Subscription Fees, as well as any fees payable to Matterport or an Authorized Reseller in respect of: (a) Platform Subscription Services provided in excess of those within the scope of Customer’s Platform Subscription Plan; (b) Additional Services (as defined herein); (c) if applicable, Third-Party Services.

“Additional Functionality” means the Matterport SDK and Matterport API functionality made available by Matterport via the Platform, or offered as part of a third party integration where applicable (to the extent the subject of an Order), subject to the payment of the applicable Additional Fees to Matterport or an Authorized Reseller.

“Affiliate” means any current or future entity that directly or indirectly controls or is controlled directly or indirectly by or is under common control with, a Party. For the purposes of the foregoing “control” shall be understood as direct or indirect ownership of at least 50% of the share capital or the voting rights of an entity, or of the right to direct the management of an entity.

“Anonymized Data” means any data extracted from Customer Data, from which all Personal Data has been removed, such that the Customer is no longer identifiable from such data (or may otherwise be associated with such data).

“Authorized Reseller” means any third-party reseller who has a reseller agreement with Matterport to resell Matterport services, including but not limited to, Platform Services.

“Authorized Users” means each of Customer’s employees, consultants, contractors, agents, and third-party collaborators who are authorized by Customer to access and use the Platform and the Platform Services and, where applicable, Additional Functionality, pursuant to this PSA (whether via the provision of a username and password combination via which the Platform is made accessible by Matterport (“User Credentials”) or otherwise).  

“Customer Data” means any and all information, data, and other content, in whatever form or medium, that is submitted, posted, or otherwise transmitted to Matterport in connection with the use of the Platform by Customer (or its Authorized Users), including (without limitation) Customer Image Data and Customer Personal Data, but excluding Matterport Data.

“Customer Image Data” means any Customer Data that is uploaded, submitted, or otherwise posted to the Platform by or on behalf of Customer in the form of images (whether 2D or 3D), and including (without limitation) all associated text, notes, tags, annotations, hyperlinks, images, videos, and any other rich media content (“Mattertags”) that may be uploaded by Customer or an Authorized User to a Matterport Space

“Customer Personal Data” means any Customer Data which would be considered Personal Data, as such term may be defined in any privacy and data protection laws applicable to the Platform Services.  

“Documentation" means any user manuals, help guides, technical documentation, specifications, and other materials, made available by to Customer, on the Matterport Website or otherwise, in connection with the use of the Platform Services including, but not limited to, the Subscription Plans, and price list, and any updates, modifications, or enhancements to such materials that may be provided from time to time. 

“Generic Space Data” means Anonymized Data relating to the structure, materials and fixtures of  a Subject Property.

“Initial Subscription Period” means the the period from the Platform Subscription Commencement Date through (i) for a monthly Platform Subscription, the last day of the current monthly term; or (ii) for an annual Platform Subscription, the date which is twelve (12) calendar months from and including the Platform Subscription Commencement Date, or as otherwise specified in an Order.

“Learning and Process Improvement (LPI) Data” means Anonymized Data, content and other materials that result from the Matterport Production Process for the purpose of providing or improving the Platform. 

“Matterport Data” means Anonymized Data that Matterport extracts through the analysis of Customer Data, and includes all Generic Space Data, Usage Data and LPI Data.

“Matterport Space” or “Space” means a 3D representation of a property created (a) via the Matterport Production Process and (b) displayed and accessible only via a visual web web page, available solely via a link to the Platform (“Showcase”).

“Matterport Technology” means all technology and data created by Matterport, including without limitation: (a) the Platform; (b) embedded technology in any camera equipment developed by or on behalf of Matterport from time to time and made available for use by customers (a “Matterport Cameras”); (c) the Matterport Production Process and any artificial intelligence, machine learning, depth-perception or other algorithms therein; (d) the Positional Technology that detects specifies the location digital objects within a Matterport Space; (e) Matterport Data; (f) Matterport Digital Assets; (g) system performance data, workflows, know-how, object segmentation, auto-generated labels, space indexing, computer vision created by Matterport; (h) the Additional Functionality; and (i) and any subsequent improvements to any of the foregoing.

“Order” means a written, click to accept or electronic document entered into between Customer and Matterport (or an Authorized Reseller) for ordering the Services.

“Platform” means Matterport’s proprietary cloud-based application platform, via which the Platform Services are made available by Matterport.

“Platform Fees” means the Platform Subscription Fees and any applicable Additional Fees

“Platform Services” means the Platform Subscription Services and any Additional Services that are the subject of an Order.

“Platform Subscription” means Customer’s right (and the right of its Authorized Users) to access and use the Platform Subscription Services in accordance with the terms set out in this PSA for the duration of the Subscription Period, at the Subscription Plan and in respect of the number of Authorized Users, in each case, as may be specified in an Order.

“Platform Subscription Services” means the services that are provided by Matterport as part of a Platform Subscription, including, without limitation, the Platform, and the creation of Matterport Spaces.

“Platform Subscription Fees” means the fees payable to Matterport or an Authorized Reseller in respect of a Platform Subscription, as set out in the Order.

“Subject Property” means the structure, location, or premises in respect of which: (a) a Matterport Space is created; and (b) to the extent specified in an Order, Capture Services are provided. 

“Subscription Period”means the Initial Subscription Period and each subsequent Renewal Period