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Matterport SDK & API Agreement

Last updated: January 17, 2020

1. INTRODUCTION AND ACCEPTANCE OF AGREEMENT

This API and SDK Agreement (this “Agreement”) is between Matterport, Inc. (“Matterport”) and you or the entity that you represent (collectively, “You”), and governs Your use of any Matterport API and/or Matterport SDK (defined below).

BY CLICKING “I AGREE” IN CONNECTION WITH THIS AGREEMENT, BY ELECTRONICALLY OR MANUALLY SIGNING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING ANY MATTERPORT API AND/OR ANY MATTERPORT SDK, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU MAY NOT ACCESS OR USE ANY MATTERPORT API OR ANY MATTERPORT SDK

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. Thus, You should visit this page periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of all Matterport APIs and Matterport SDKs. Your continued use of any Matterport API and/or any Matterport SDK after a change has been posted constitutes Your acceptance of the change thereafter.

2. DEFINITIONS

2.1 “CSA Agreement” means the online Matterport Cloud Subscription Agreement available at matterport.com/legal/cloud-subscription-agreement, or any successor agreement at that URL.

2.2 “Developer Application” means an application, software functionality or web page developed and provided by You that uses a Matterport API and/or Matterport SDK.

2.3 “Developer Application Content” means any data, images, text, content, code or other copyrightable materials or other information or materials of any kind (other than any Matterport Cloud Content and Matterport Branding) that are included in, provided through or used in connection with the Developer Application.

2.4 “Distribution Channels” means any third-party distribution channels for the Developer Application, including without limitation the website of Oculus VR, LLC and the app stores Google Play and the Apple App Store.

2.5 “Matterport APIs” means Matterport’s collection of services that allow You to transfer content and data between Developer Applications and the Matterport Cloud, as further described in this Agreement.

2.6 “Matterport API Documentation” means such technical documentation and sample code applicable to the use of the Matterport APIs as Matterport may provide to You from time to time during the term of this Agreement.

2.7 “Matterport Branding” means any instance of the Matterport name, trademark, service mark or logo displayed via a Matterport API and/or Matterport SDK, within Matterport Cloud Content, or in another mutually agreed location in the Developer Application.

2.8 “Matterport Cloud” means Matterport’s proprietary hosted application platform (and other technologies available therein).

2.9 “Matterport Cloud Content” means any content or data on the Matterport Cloud that Matterport makes available to You or the Developer Application through use of the Matterport API and/or Matterport SDK.

2.10 “Matterport SDK” means Matterport’s proprietary software development kit that may be used to develop features or functionalities in the Developer Application that interoperate with the Matterport Cloud, as further described in this Agreement.

2.11 “Restricted Content” means any content, code or terms that: (a) promote or are related to fraudulent, deceptive or illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes or chain letters); (b) promote or are related to illegal gambling or weapons; (c) are related to pornographic or obscene material; (d) are related to excessively graphic or explicit violence; (e) are defamatory, inappropriate or profane; (f) are disparaging to Matterport or its licensors; (g) are discriminatory or constitute “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; (h) promote or contain viruses, worms, trap doors, hidden sequences, hot keys, time bombs, corrupted files, cracks or other malicious code or materials that are intended to or may damage or render inoperable software, hardware or security measures of Matterport, any end user, or any other third party; (i) contain advertising functionality that is intrusive, deceptive or contrary to generally accepted industry standards; or (j) are otherwise designated by Matterport as unacceptable content from time to time.

3. ACCESS TO MATTERPORT APIS; MATTERPORT CLOUD CONTENT

3.1 Access to Matterport APIs; API Keys.  After Your acceptance of this Agreement, if You elect to use the Matterport API, You will receive keys generated for your Matterport account or for the account of the applicable third-party Matterport Cloud customer (“API Key(s)”) and receive API Documentation that will allow You to access the Matterport Cloud and Matterport Cloud Content via the Matterport APIs.  You agree to keep any such API Keys confidential and not to share them with any third party. You are fully responsible for all activities that occur through the use of such API Keys.  You shall, at all times during the term of this Agreement, cause the Developer Application(s) to comply in all material respects with the technical requirements of the Matterport API Documentation.  Access to the Matterport Cloud and Matterport Cloud Content via the Matterport APIs shall be accomplished using the security and other protocols as specified by Matterport in the Matterport API Documentation.

3.2 Matterport Cloud Content.  Matterport will make available to You certain types of Matterport Cloud Content based on the type of Matterport API account that You establish with Matterport and the type of API Key You use.  Matterport reserves the right withhold or suspend Your access, via the Matterport API(s), to certain types of Matterport Cloud Content in Matterport’s sole discretion.

3.3 Monitoring and Limits on Usage.  Matterport has the right to monitor Your use of the Matterport APIs and Matterport Cloud Content, including without limitation monitoring the Developer Application, to ensure quality, improve Matterport products and services, verify your compliance with this Agreement, and to calculate and assess fees to You based on Your usage of the Matterport APIs. You shall not interfere with such monitoring or otherwise obscure from Matterport Your use of the Matterport APIs and/or Matterport Cloud Content.  Matterport may in its sole discretion set limits on Your Matterport API usage, which Matterport may change at any time with or without notice to You. In its sole discretion, Matterport may allow Your usage to exceed such limits, for an additional charge. You shall not attempt to circumvent automated use restrictions.

4. ACCESS TO MATTERPORT SDKS

4.1 Access to Matterport SDKs; SDK Keys. If You elect to use the Matterport SDKs, Matterport shall provide the Matterport SDKs and associated documentation to You by download or in another manner determined by Matterport.  Matterport will also provide You with one or more keys that will allow You to access and use the Matterport SDKs (“SDK Key(s)”).  You agree to keep the Matterport SDKs and any SDK Keys confidential and not to share it them with any third party.  You are fully responsible for all activities that occur under through the use of Your SDK Keys.

4.2 Additional Access and Support Terms Applicable to the VR SDK.  If You elect to use the VR SDK, Matterport will make Your Owned Content and Your Licensed Content available to You via the VR SDK. In the future, in Matterport’s sole discretion, Matterport may also notify You in writing (email sufficient) that Matterport is making certain Public Content available to You via the VR SDK. You acknowledge and agree that the VR SDK has external dependencies, such as the third-party software development kits for Oculus, Unity, Cardboard, and other VR platforms, that may impact Your ability to demonstrate a Developer Application built using the VR SDK. With each version of the VR SDK that Matterport provides to You, Matterport will specify the VR platforms that are supported by that version of the VR SDK, and Matterport will have no obligation to provide technical support or meet any service levels with respect to any VR platforms that are not specified as supported. “Your Owned Content” means a digital copy of the VR Spaces (as defined in the CS Agreement) associated with Your Matterport Cloud account that is hosted by Matterport. “Your Licensed Content” means a digital copy of the VR Spaces owned by Matterport’s third-party customers that is hosted by Matterport, where such customers have directly granted You all necessary licenses and permissions to download, cache and display such content via the Developer Application. “Public Content” means a digital copy of the VR Spaces owned by Matterport’s third-party customers that is hosted by Matterport and that such customers: (a) have designated as publicly available and generally accessible by any user; but (b) have not directly licensed to You as Your Licensed Content.

5. MAINTENANCE; SUPPORT

Matterport will use commercially reasonable efforts to keep the Matterport APIs operational on a continuous basis during the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance.  During the term of this Agreement, Matterport will provide technical support in its sole discretion with respect to errors and vulnerabilities in the current version of the Matterport APIs and Matterport SDKs; provided, however, that Matterport has no obligation to provide any development support to You or technical support to Your end users under this Agreement with respect to the Developer Application. Matterport will have the right to discontinue all technical support for the Matterport APIs and/or Matterport SDKs at any time without providing You with any notice. In addition, with or without prior notice to You, Matterport will have the right to make changes to any Matterport API and/or Matterport SDK at any time, including discontinuing features thereof and changing security and other protocols. Such changes may impact older versions of the Matterport SDK and any Developer Application built using older versions of the Matterport APIs and/or Matterport SDK. Matterport will use commercially reasonable efforts to minimize changes to technical requirements associated with Your use of the Matterport APIs and Matterport SDKs, but reserves the right to do so as a result of bug fixes, security updates, changes to the third-party software development kits for other platforms, or other issues.

6. FEES AND PAYMENT

6.1 Fees and Payment for Matterport APIs and Matterport SDKs.  Matterport will have the right to charge You fees, or modify any fees, for use of the Matterport APIs and/or Matterport SDKs as specified in any written notice to You or as specified during the registration process for such services, and subject to any additional payment terms and billing schedules specified in such notice or during such process. Matterport reserves the right to modify such fees at any time by posting revised fees on the Matterport website.  In addition, Matterport will have the right to require You to enter into a separate agreement for Your commercial use of the Matterport APIs and/or Matterport SDKs, in which You are obligated to pay fees to, or share revenue with, Matterport with respect to Your commercial use of the Matterport APIs and/or Matterport SDKs, and Matterport will have the right to terminate You access to, and right to use, the Matterport APIs and/or Matterport SDKs for commercial purposes if You do not agree to such separate agreement.

6.2 Remedies; Taxes. Your right to access and use the Matterport APIs and Matterport SDKs is subject to Matterport’s receipt of all applicable fees for such services.  Matterport may suspend or terminate Your use or access to the Matterport APIs and/or Matterport SDKs if any such payment is overdue, and Matterport may impose a late fee equal to 1.5% per month or the maximum rate allowed by law, whichever is lower, on any overdue amounts. You are responsible for the payment of all applicable taxes and duties, if any, associated with Your use of the Matterport APIs and Matterport SDKs and other associated products and services, excluding taxes based on Matterport’s income.

7. LICENSES

7.1 Matterport APIs

(a) License Grant to You.  Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable (except as provided below) license, during the term of this Agreement, to use the Matterport APIs as provided by Matterport, in the manner permitted by this Agreement:  (i) in accordance with the Matterport API Documentation, to access the Matterport Cloud Content and other Matterport Cloud data through the Matterport API and to use and display such Matterport Cloud Content and other data in the Developer Application(s) and authorized third-party applications and services; (ii) in accordance with the Matterport API Documentation, to transmit Developer Application Content and other data from the Developer Application(s) and authorized third-party applications and services through the Matterport API to the Matterport Cloud; and (iii) to copy and use the Matterport API Documentation internally for the sole purpose of integrating the Developer Application(s) with the Matterport API(s).  In each case to the extent permitted by the Matterport API Documentation and any available and authorized API functionality, the foregoing rights may include the ability to modify Matterport Cloud Content and other data stored on the Matterport Cloud, to create new content on the Matterport Cloud, to change the state of Spaces (as defined in the CS Agreement) on the Matterport Cloud (e.g., public/private, active/archived), to buy and retrieve associated Matterport services and products on the Matterport Cloud, to create accounts and users on the Matterport Cloud, to change privileges for users in Matterport Cloud accounts, to discover and buy third-party services offered in Matterport’s marketplace, and to publish Spaces to third-party real estate portals.

(b) Sublicenses to End Users.  You may permit end users to display and use the Matterport Cloud Content solely through the Developer Application; provided that You will make any such use subject to written terms and conditions that contain standard license restrictions, ownership statements, disclaimers of warranty and limitations of liability that are generically applicable to the Matterport Cloud Content and Your licensors (e.g., Matterport), and that are reasonably consistent with this Agreement.  You will not, in any such terms and condition applicable to the Developer Application, or otherwise: (1) impose or purport to impose any obligation on Matterport that would be inconsistent with this Agreement; or (2) make or purport to make any representation, warranty or covenant on behalf of Matterport. Use of Matterport Cloud Content is also subject to any Matterport terms of service referenced or set forth in the Matterport Cloud Content. You shall explicitly state in the Developer Application’s terms of use that, by using the Developer Application, end users are agreeing to be bound by any such Matterport terms of service.  You shall not set forth in the Developer Application’s terms anything that conflicts with this Agreement or the Matterport terms of service, and You shall not remove, obscure, or alter any such Matterport terms of service, or any links to or notices of such terms of service.

(c) Sublicenses to Third-Party Developers.  You may permit third-party developers to:  (a) incorporate the Developer Application into such developers’ application; and (b) use the Matterport API(s) solely within the Developer Application; provided that You will make any such use subject to written terms and conditions stating that:  (i) the developer’s use is additionally governed by a hyperlink reference to this Agreement, and the developer’s application will be deemed a Developer Application hereunder; and (ii) Matterport is a third-party beneficiary to such terms and conditions with the developer.  You may share API Keys with any such third-party developers through the use of available and authorized API functionality on the Matterport Cloud. You will not, in any such terms and conditions applicable to the Developer Application, or otherwise: (A) impose or purport to impose any obligation on Matterport that would be inconsistent with this Agreement; or (B) make or purport to make any representation, warranty or covenant on behalf of Matterport.

(d) License Grant to Matterport.  You hereby grant Matterport a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable license to use the Developer Application Content that You transmit via the Matterport API(s) to:  (a) enable Matterport to provide services to You under this Agreement in connection with the Matterport API(s); (b) create aggregate and statistical information about Your use of the Matterport API(s); (c) use the Developer Application Content for machine learning training and testing; (d) as provided in Section 15.2; and (e) as provided in the CS Agreement.

7.2 MATTERPORT SDKs

(a) License Grant to You. Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable (except as provided below) license, during the term of this Agreement: (a) to receive the Matterport SDKs by download or in another manner determined by Matterport; (b) to store and use a copy of the Matterport SDKs internally for the purpose of developing and testing a Developer Application; (c) where possible, to embed necessary portions of the Matterport SDKs in compiled format solely within the Developer Application in a manner that does not permit extraction by third parties; (d) to use the Matterport SDKs to create, delete and update mattertags in Matterport Cloud Content; (e) to use the Matterport SDKs to insert 3D objects (e.g., furniture) into Matterport Cloud Content; (f) to use the Matterport SDKs for the additional specific purposes described in Sections 7.2(b) and 7.2(c) below; and (g)  to use the Matterport SDKs for the purposes specified in the documentation for the Matterport SDKs that Matterport posts in the Matterport Cloud from time to time. For the avoidance of doubt, any updates the You make to Developer Application Content in the Developer Application (in the absence of an update transmitted via an authorized Matterport API) will not be replicated in the Matterport Cloud.

(b) Licensed Uses Specific to VR SDK. Subject to Sections 7.2(a) and 8, You may use the VR SDK solely within the Developer Application: (i) to distribute to end users (whether on a commercial basis or otherwise) through the Distribution Channels all necessary portions of the VR SDK in compiled format and solely embedded within the Developer Application; and (ii) to distribute, cache and display Your Owned Content, Your Licensed Content and Public Content (to the extent that Matterport makes Public Content available) to mobile devices of end users solely through the Developer Application or Your non-VR native mobile applications (to the extent that, after the Effective Date, Matterport commences supporting use of the VR SDK in conjunction with such non-VR applications). You may permit end users to use the Developer Application to download Your Owned Content, Your Licensed Content and Public Content (to the extent that Matterport makes the Public Content available) via the VR SDK to such end users’ mobile devices, and to cache and display Your Owned Content, Your Licensed Content and Public Content in such mobile devices via the VR SDK; provided that You will make any such use subject to written terms and conditions that contain standard license restrictions, ownership statements, disclaimers of warranty and limitations of liability that are generically applicable to Your Owned Content, Your Licensed Content and Public Content, the VR SDK and Your licensors (e.g., Matterport), and that are reasonably consistent with this Agreement. You will not, in any such terms and condition applicable to the Developer Application, or otherwise: (1) impose or purport to impose any obligation on Matterport that would be inconsistent with this Agreement; or (2) make or purport to make any representation, warranty or covenant on behalf of Matterport.

(c) Licensed Uses Specific to 3D Showcase SDK. Subject to Sections 7.2(a) and 8, You may use the 3D Showcase SDK solely within the Developer Application: (i) to distribute or make available to end users or third-party developers all necessary portions of the 3D Showcase SDK in compiled format (where possible) and solely embedded within the Developer Application; (ii) to trigger, from the Developer Application, actions in Spaces displayed in Showcase; and (iii) to monitor events in Spaces displayed in Showcase to trigger actions in the Developer Application. You may permit end users to use the 3D Showcase SDK solely within the Developer Application to trigger actions in Showcase from the Developer Application and to monitor events in Showcase to trigger actions in the Developer Application; provided that You will make any such use subject to written terms and conditions that contain standard license restrictions, ownership statements, disclaimers of warranty and limitations of liability that are generically applicable to the 3D Showcase SDK and Your licensors (e.g., Matterport), and that are reasonably consistent with this Agreement. You may permit third-party developers to: (1) incorporate the Developer Application into such developers’ application; and (2) use the 3D Showcase SDK solely within the Developer Application to trigger actions in Showcase from the Developer Application and to monitor events in Showcase to trigger actions in the Developer Application; provided that You will make any such use subject to written terms and conditions stating that: (A) the developer’s use is additionally governed by hyperlink reference to this Agreement, and the developer’s application will be deemed a Developer Application hereunder; and (B) Matterport is a third-party beneficiary to such terms and conditions with the developer. You are prohibited from sharing Your SDK Keys with any such third-party developers, who will be required to obtain SDK Keys directly from Matterport. You will not, in any such terms and condition applicable to the Developer Application, or otherwise: (1) impose or purport to impose any obligation on Matterport that would be inconsistent with this Agreement; or (2) make or purport to make any representation, warranty or covenant on behalf of Matterport.

7.3 Subcontractors. You may permit Your subcontractors to exercise the foregoing rights licensed to You under this Section 7 on Your behalf, provided that: (a) such subcontractors only exercise such rights in the course of performing services for You; and (b) You shall be responsible for Your subcontractors, and any breach of this Agreement caused by Your subcontractors shall be deemed a breach by You.

8. RESTRICTIONS

8.1 General Restrictions. Except as expressly authorized in this Agreement or as otherwise specifically agreed by Matterport in the CS Agreement or in another writing (email sufficient), You shall not, and shall not authorize any third party to: (a) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of any software underlying the Matterport APIs, Matterport SDKs, the Matterport Cloud or any Matterport Cloud Content, except to the extent that this restriction is expressly prohibited by applicable law; (b) create any derivative work based on the Matterport APIs, Matterport SDKs, Matterport Cloud Content or Matterport Cloud (or portion thereof); (c) copy or modify the Matterport SDKs, Matterport Cloud Content or Matterport Cloud (or portion thereof); (d) attempt to gain unauthorized access to any Matterport APIs, Matterport SDKs or the Matterport Cloud or take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Matterport APIs, Matterport SDKs or Matterport Cloud, or adversely affect Matterport’s right, title or interest in or to the Matterport APIs, Matterport SDKs or Matterport Cloud; (e) use the Matterport APIs, any third-party API, Matterport SDKs, or Matterport Cloud Content to download raw data, to re-create any Matterport proprietary service or app or to create any product or service that competes with a Matterport product or service; (f) modify any functionality of the core Matterport APIs or Matterport SDKs, circumvent any restrictions enforced by the Matterport APIs or Matterport SDKs, or remove/modify the headers sent by the Matterport APIs or Matterport SDKs; (g) distribute, transfer, sell or make available any portion of the Matterport APIs, Matterport SDKs, any Matterport Cloud Content, or the Matterport Cloud, in any format, to the public or to any third party, including any of Your customers or partners (whether or not under a non-disclosure agreement), in any manner other than through the Developer Application as provided in Section 7; (h) use any Matterport API or Matterport SDK to download any third-party content unless such content is Matterport Cloud Content that Matterport makes available to You via the Matterport API or Matterport SDKs; (i) access any portion of the Matterport Cloud Content except via the applicable Matterport API, the applicable Matterport SDK, and the Developer Application, or access the Matterport APIs without a valid API Key; (j) display Your branding in the Developer Application in a manner that implies, or reasonably could imply, that any technology contained in the Matterport Cloud Content, the Matterport APIs, the Matterport SDKs or the Matterport Cloud is owned by You or any third party, such as without limitation overlaying any Matterport branding with Your branding or third-party branding, or modifying any Matterport branding to misrepresent ownership of content or technology; (k) combine or integrate any portion of any Matterport API or Matterport SDKs with any software or other content licensed under any “open source” license that would have the effect of subjecting the Matterport API, Matterport SDKs or Matterport Cloud Content to the terms and conditions of such license or imposing an obligation to distribute source code from the Matterport API, Matterport SDKs or Matterport Cloud Content; (l) supply or authorize any Developer Application Content that contains Restricted Content; (m) use the Matterport APIs, Matterport SDKs, Matterport Cloud Content or the Matterport Cloud for any abusive, fraudulent, unethical or illegal purpose, as determined by Matterport in its sole discretion; (n) use the Matterport APIs, Matterport SDK or Matterport Cloud Content for any activities where the use or failure of the Matterport APIs, Matterport SDK or Matterport Cloud Content could lead to death, personal injury, or environmental damage (such as the operation of nuclear facilities, air traffic control, or life support systems); (o) alter, remove or obscure any attribution or proprietary rights notices (including confidential legends, copyright and trademark notices, terms of use links, or Matterport Branding) displayed or provided through the Matterport APIs, Matterport SDKs or Matterport Cloud Content; (p) disable or modify any hyperlinks contained in any Matterport Cloud Content; (q) incorporate the Matterport Cloud Content as the primary content in the Developer Application(s); or (r) violate any terms and conditions of any Distribution Channels governing Your distribution of the Developer Application through such Distribution Channel, if applicable. You will use all reasonable efforts to prevent any use of the Matterport APIs, Matterport SDKs, the Matterport Cloud or any Matterport Cloud Content in violation of this Agreement and to terminate any such use. You agree to maintain a data security program that includes physical, technical, and managerial procedures that are up-to-date and generally accepted in the industry and that are effective at preventing unauthorized access to or use of any Matterport API, Matterport SDK code or Matterport Cloud Content. Matterport will have the right, in its discretion, to review and approve (email sufficient) Your implementation of the Matterport Cloud Content on the Developer Application prior to the date on which You commence displaying the Matterport Cloud Content to any end user through the Developer Application.  In addition, prior to distributing any Developer Application for use by any third party in such third-party’s application or website, Matterport will have the right, it its discretion, to review and approve such Developer Application in writing (email sufficient), and to list such Developer Application on the page of Matterport’s website dedicated to third-party applications. Without limiting any other remedy available to Matterport, Matterport reserves the right to suspend Your access to the Matterport APIs, without prior notice, in the event You violate any restriction of this Agreement.

8.2 Restrictions for Specific Matterport SDKs

(a) VR SDK. Except as expressly authorized in this Agreement or as otherwise specifically agreed by Matterport in writing (email sufficient), You shall not, and shall not permit any third party to, export or extract any portion of Your Owned Content, Your Licensed Content or Public Content from the mobile devices to which it is downloaded hereunder (whether via the VR SDK or any API of Matterport). In addition, prior to distributing any Developer Application to any end user, You must permit Matterport to review and approve such Developer Application in writing (email sufficient).

(b) 3D Showcase SDK. Except as expressly authorized in this Agreement or as otherwise specifically agreed by Matterport in writing (email sufficient), You shall (and shall cause Your end users and other third-party licensees): (i) only use the 3D Showcase SDK to monitor or trigger actions in Spaces that are either publicly available via the Matterport Cloud or not publicly available via the Matterport Cloud with proper authorization from model owners (as determined by Matterport); (ii) only use the 3D Showcase SDK within Developer Applications that are available or accessible on a free and open basis to the public (i.e., the Developer Application is not for purchase or accessible behind a firewall or paywall); (iii) not use the 3D Showcase SDK within Developer Applications that display paid advertisements or generate revenue indirectly through affiliate programs or promotional or strategic alliances with third parties; and (iv) modify data on the Matterport Cloud in strict compliance with any content restrictions set forth in the CS Agreement.

8.3 Confidentiality of APIs, Matterport SDKs and Keys. The Matterport APIs, Matterport SDKs and any API Keys and SDK Keys (collectively, “Keys”) will be deemed the confidential information of Matterport. You shall: (a) strictly preserve and protect the confidentiality of the Matterport APIs, Matterport SDKs and Keys and not disclose such Matterport APIs, Matterport SDKs or Keys to any third party other than Your employees, subcontractors and agents who have a need to receive such Matterport APIs, Matterport SDKs and Keys and who are subject to nondisclosure obligations as protective as those set forth herein; and (b) refrain from using the Matterport APIs, Matterport SDKs or Keys except as contemplated in this Agreement. You shall use no less care to prevent unauthorized disclosure or use of the Matterport APIs, Matterport SDKs and Keys than You use to maintain the confidentiality of Your own non-public information, and in no event less than a reasonable degree of care. You shall be responsible for ensuring that Your employees, subcontractors and agents fully comply with the restrictions of this Section, and any Keys provided to You will remain Your responsibility. You acknowledge that the unauthorized disclosure or use of the Matterport APIs, Matterport SDKs or Keys may cause irreparable harm to Matterport, which harm cannot be compensated by damages alone. Therefore, in addition to all other rights and remedies at law and in equity, Matterport may seek an injunction to prevent a violation of the obligations of confidentiality. The foregoing confidentiality restrictions shall not apply to any portion of the Matterport APIs or Matterport SDKs that Matterport provides through a public webpage.

9. PROPRIETARY RIGHTS

9.1 Matterport APIs, Matterport SDKs, Matterport Cloud and Matterport Cloud Content.  All rights not expressly granted to You are reserved by Matterport and Matterport’s licensors, and You shall make no use of the Matterport APIs, Matterport SDKs, Matterport Cloud Content or Matterport Cloud except as expressly provided herein or in another agreement between You and Matterport. Matterport owns all right, title and interest (including all associated intellectual property rights) in and to the Matterport APIs, Matterport SDKs, the Matterport Cloud and any technology and documentation thereof. Ownership of Matterport Cloud Content is governed by the CS Agreement or other agreement entered between Matterport and You or third-party customers associated with such content. You shall not, without limitation, assert any ownership interest in:  (a) the Matterport APIs, Matterport SDKs, the Matterport Cloud or any technology and documentation thereof; or (b) any portion of code taken directly from the Matterport API or Matterport SDK, including without limitation filing any copyright registration with respect to the foregoing. Materials Matterport reserves the right to create and commercially offer, in its sole discretion in the future, products and services that are similar to, or compete with, any code or solution that You develop that includes or is based on the Matterport APIs or Matterport SDKs.

9.2 Feedback and Aggregate Data.  Matterport may solicit, or You may elect to volunteer, feedback, ideas or other suggestions regarding the Matterport Cloud, Matterport APIs and/or the Matterport SDKs (“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.  Each party will own the aggregate and statistical data such party collects regarding Your use of the Matterport APIs and Matterport Cloud Content hereunder, provided that any such data disclosed to third parties shall contain no reference to and shall not be identifiable to the other party.

9.3 Developer Application and Developer Application Content.  As between You and Matterport, You retain all right, title and interest in and to, and Matterport obtains no rights of any kind in, the Developer Application(s) and Developer Application Content (including all associated intellectual property rights), subject to Matterport's underlying rights in the Matterport APIs, Matterport SDKs, Matterport Cloud Content, Matterport Cloud, and any portion taken directly from any Matterport API or Matterport SDK.

10. MATTERPORT BRANDING

The Matterport Branding displayed on the Matterport Cloud, in the Matterport Cloud Content, or on Matterport’s other products or services are the property of Matterport or third parties. Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable license, during the term of this Agreement, to use and display the Matterport Branding solely via the Matterport SDKs and in connection with displaying Matterport Cloud Content within the Developer Application, subject to the following terms and conditions:


(a) All use by You of the Matterport Branding shall be consistent with any Matterport trademark quality standards Matterport provides or makes available to You.

(b) Prior to displaying Your trademark, logo, service mark or tradename to directly brand or label Your display of any Matterport Cloud Content, You shall obtain the prior written consent of Matterport and enter into a trademark license agreement with Matterport permitting You to display Your trademark, logo, service mark or tradename in conjunction with the Matterport Branding.

(c) As between the parties, Matterport will have the sole right and discretion to determine whether the use of the Matterport Branding in connection with the Developer Application complies with the requirements of this Agreement. If Matterport becomes aware that You are using, or omitting to use, the Matterport Branding in an improper manner or in violation of this Agreement, as determined by Matterport in its sole discretion, Matterport will notify You of such improper use and You will promptly correct such use in a commercially reasonable manner, or cease such use if directed by Matterport. You shall not alter, remove, cover, obscure or destroy any attribution, branding, or proprietary markings (e.g., copyright and trademark notices) placed upon or contained within any Matterport Cloud Content.

(d) You acknowledge and agree that the Matterport Branding is owned by Matterport. You shall not oppose, protest or otherwise challenge the validity of the Matterport Branding, or the rights of Matterport or any of its licensors in the Matterport Branding. You acknowledge that all use of the Matterport Branding in connection with the Developer Application, whether authorized or not, including any goodwill associated therewith, shall inure to the benefit of Matterport and that You derive no rights in the Matterport Branding by virtue of this Agreement except for the right to use as expressly set forth herein.

11. DISCLAIMER

THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT BRANDING, MATTERPORT CLOUD AND MATTERPORT CLOUD CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. MATTERPORT DISCLAIMS, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT BRANDING, MATTERPORT CLOUD AND MATTERPORT CLOUD CONTENT. MATTERPORT DOES NOT REPRESENT OR WARRANT THAT THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT WILL BE ACCURATE OR RELIABLE, THAT USE OF THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT WILL BE CORRECTED. IN ADDITION, MATTERPORT MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING THE APPROPRIATENESS OF THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT BRANDING, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT FOR USE OUTSIDE OF THE UNITED STATES.  Some jurisdictions do not allow the disclaimer of certain warranties, so these disclaimers may not apply to You. Matterport does not disclaim any warranty under this Agreement that cannot be excluded or limited under applicable law.

12. 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, COST TO PROCURE SUBSTITUTE GOODS OR SERVICES, 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 OR IN CONNECTION WITH THE MATTERPORT APIS, MATTERPORT SDKS, MATTERPORT BRANDING, MATTERPORT CLOUD AND/OR MATTERPORT CLOUD CONTENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY UNAUTHORIZED REDISTRIBUTION OR DISPLAY OF ANY MATTERPORT CLOUD CONTENT BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION THROUGH ANY UNAUTHORIZED EMBEDDED LINKS OR CODE ON A THIRD PARTY WEBSITE OR APP. 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 certain conditions or types of loss or damages, so these limitations may not apply to You. Matterport does not exclude or limit any liability under this Agreement that cannot be excluded or limited under applicable law.

13. INDEMNIFICATION

You, at Your own expense, will indemnify, defend and hold harmless Matterport, its corporate affiliates and their respective officers, directors, employees, representatives and agents (each a “Matterport Indemnitee”) from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising therefrom (each a “Claim”), brought by any third party against a Matterport Indemnitee to the extent that such Claim is based on, or arises out of: (a) a breach of any of Your obligations, representations or warranties under this Agreement or the CS Agreement (if applicable); (b) any use of the Developer Application(s) or any allegation that the Developer Application(s) or the Developer Application Content violate any applicable law or regulation or misappropriate or infringe the rights of any person or entity, including any intellectual property right or right of publicity or privacy, or otherwise contain any Restricted Content; (c) any allegation that You failed to obtain all necessary licenses and permissions from third parties to download, cache and display any Matterport Cloud Content through any Matterport API or Matterport SDK; (d) the conduct of Your business or the use of or inability to use the Matterport APIs, Matterport SDKs, Matterport Cloud or Matterport Cloud Content; (e) Your use, distribution, display or publication of any Matterport Cloud Content (or component of any of the foregoing); or (f) any alleged or actual fraud, gross negligence or willful misconduct of You or Your agents. In the event of a Claim in respect of which a Matterport Indemnitee seeks indemnification from You under this Section, the Matterport Indemnitee 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 Matterport Indemnitee from all liability with respect to such Claim or unless the Matterport Indemnitee consents to such settlement in writing.

14. TERM OF AGREEMENT; TERMINATION

14.1 Term. The term of this Agreement shall commence on the earlier to occur of the date You agree to be bound by this Agreement or the date You first access or use any Matterport API or Matterport SDK, and shall continue until either party terminates this Agreement in a manner provided below.

14.2 Termination. You may terminate this Agreement at any time by removing the Matterport API code and Matterport SDK code from the Developer Application(s) and discontinuing Your use of the Matterport APIs, Matterport SDK(s) and Matterport Cloud Content hereunder. You do not need to specifically inform Matterport when You have terminated this Agreement in accordance with the preceding sentence. Matterport may terminate this Agreement for any reason, at any time, with or without notice to You, and without liability or other obligation to You, except as expressly provided in this Agreement.

14.3 Effect of Termination. Upon any expiration or termination of this Agreement, You shall immediately: (a) cease all use of the Matterport APIs and Matterport SDKs; (b) cease all use of the Matterport Cloud Content in connection with the Developer Application, except to the extent You have the right to continue doing so pursuant to another agreement with Matterport; (c) delete all copies of the Matterport SDKs and Matterport Cloud Content in Your possession or under Your control, excluding any copies of the Matterport Cloud Content that are stored on the Matterport Cloud, and, upon written (email sufficient) request of Matterport, certify in writing that You have complied with such deletion obligation; and (d) promptly pay Matterport any fees then accrued and payable for Your use of the Matterport APIs and/or Matterport SDKs. Sections 2, 8, 9, 10(d), 11, 12, 13, 14.3 and 15 will survive any expiration or termination of this Agreement.

15. MISCELLANEOUS

15.1 Applicability of CS Agreement. If You subscribe to the Matterport Cloud, this Agreement supplements the terms and conditions set forth in the CS Agreement, which governs Your use of the Matterport Cloud. In the event of any conflict between the provisions of this Agreement and those of the CS Agreement, the provisions of this Agreement shall govern with respect to the subject matter of this Agreement.

15.2 Privacy.  Matterport may use certain information collected through the Matterport APIs, Matterport SDKs, Matterport Cloud and Matterport Cloud Content as set forth in our Privacy Policy. As further provided in our Privacy Policy, Matterport and its service providers may collect and use personal information and technical data and related information—including but not limited to technical information about Your device, system and application software, and peripherals—to facilitate the provision of the Matterport APIs, Matterport SDKs, Matterport Cloud, Matterport Cloud Content and related services to You. Through Your use of the Matterport APIs, Matterport SDKs, Matterport Cloud and/or Matterport Cloud Content, You consent to the collection, use and disclosure (as set forth herein and in the Privacy Policy) of information Matterport and its 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 affiliated companies and service providers, and third parties with which it has strategic relationships.  You shall also display and abide by a privacy policy in the Developer Application that: (a) adequately discloses the collection, use and disclosure of personal information in connection with the Matterport APIs; (b) notifies users that You are using Matterport APIs, if applicable; (c) does not conflict with Matterport’s Privacy Policy; and (d) includes a link to Matterport’s Privacy Policy. Without Matterport’s prior written consent, You shall not provide to Matterport any personally identifiable information or personal data, as defined under applicable law. You must comply with all applicable laws relating to the collection, use and disclosure of information from end users of the Developer Application.

15.3 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 accessing the Matterport APIs, Matterport SDKs, Matterport Cloud Content and/or Matterport Cloud 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 using the Matterport APIs, Matterport SDKs, Matterport Cloud Content and/or Matterport Cloud, the Matterport SDKs, Matterport Cloud Content and/or Matterport Cloud and all associated software and technology of Matterport 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 of the Matterport APIs, Matterport SDKs, Matterport Cloud Content and/or Matterport Cloud and associated software and documentation, and shall supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation.

15.4 Compliance with Law. You represent and warrant that:  (a) 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, Crimea, Cuba, Iran, North Korea, Syria 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 any good, service or other item that You received from Matterport or Your right to access the Matterport Cloud 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. You acknowledge that it is Your responsibility to comply with any and all applicable export and import and economic sanctions laws.

15.5 Policy Regarding Third-Party Copyrights.  Matterport responds to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) as provided in the Matterport Terms of Use.

15.6 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.

15.7 Notices. Any notice required or permitted to be given by Matterport under this Agreement shall be in writing and shall be delivered to the email address You provided for Your Matterport Cloud account that You use in connection with the Matterport APIs or the email address You provided in connection with Your registration to use the Matterport SDKs, or via registered mail return receipt requested or an internationally recognized courier addressed to the address, if any, You provided in connection with Your registration to use the Matterport APIs or Matterport SDKs. Any notice required or permitted to be given by You under this Agreement must be sent to Matterport via registered mail return receipt requested or an internationally recognized courier to 352 E. Java Dr., Sunnyvale, CA 94089. Any such notice will be deemed to have been given when sent.

15.8 Severability. If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid or unenforceable provision.

15.9 Amendment; Waiver. No amendment of any provision of this Agreement shall be effective unless made in accordance with Section 1 of this Agreement or set forth in a writing signed by a representative of each party, and then only to the extent specifically set forth therein. No course of dealing on the part of either party, nor any failure or delay by either party with respect to exercising any of its rights, powers or privileges under this Agreement or law shall operate as a waiver thereof. A waiver of any default is not a waiver of any subsequent default.

15.10 Assignment. You may not assign or otherwise transfer any of Your rights hereunder without Matterport’s prior written consent, and any such attempt is void. Matterport may assign any part of this Agreement without written consent.  This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto.

15.11 Injunctive Relief. 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.

15.12 Entire Agreement. Except as otherwise provided in Section 15.1, this Agreement and any terms and policies incorporated herein by reference constitute the complete agreement between Matterport and You concerning Your access to and use of the Matterport APIs, Matterport SDKs, Matterport Branding, Matterport Cloud, and Matterport Cloud Content, and supersede any and all prior discussions, negotiations, agreements and representations between Matterport and You related to the same subject matter.

15.13 Customer List. Unless You notify Matterport in writing that You do not wish for Matterport to list Your name and logo, Matterport will have the right to include, on its website and sales collateral, Your name and Your logo (if any) in lists that identify customers of Matterport, provided that Your name and logo shall be no more prominently featured than references to any other customers.

15.14 Authority to Accept the Agreement. You represent that you have full power, capacity, and authority to accept this Agreement.  If You are accepting on behalf of Your employer or another entity, You represent that You have full legal authority to bind Your employer or such entity to this Agreement.  If You don't have the legal authority to bind, please ensure that an authorized person from Your entity consents to and accepts this Agreement.