Matterport, Inc. 3D Showcase App End User License Agreement

Last updated: March 18, 2016

This Matterport 3D Showcase App End User License Agreement (“Agreement”) is between Matterport, Inc. (“Matterport”) and you or the entity that you represent (collectively, “You”), and governs Your use of the Matterport showcase application (the “App”) on an Apple device.

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

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

  1. Parties. This Agreement is between You and Matterport only, and not Apple, Inc. (“Apple”). Matterport, not Apple, is solely responsible for the App and the content thereof. Notwithstanding the foregoing, Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
  2. Access to Matterport Website and Matterport Portal. You will have the ability to access, directly through the App, featured 3D models made available by Matterport, as well as, in Matterport’s discretion, 3D models that other users make public on Matterport’s proprietary online portal (“Matterport Portal”). However, You will need to establish and log into a paid subscription account on the Matterport Portal to have access to Your private 3D models through the App. Use of the Matterport Portal and any content available through the Matterport Portal is subject to the Matterport Portal Subscription Agreement (available at www.matterport.com/legal/terms-of-service), as well as Matterport’s Terms of Use (available at www.matterport.com/legal/terms-of-use) governing use of its website. Please read the Matterport Portal Subscription Agreement and Terms of Use carefully.  By using the App, You agree to be bound by the Matterport Portal Subscription Agreement and Terms of Use.
  3. Limited License. Subject to the terms and conditions of this Agreement, Matterport hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the App for lawful purposes solely for downloading and displaying 3D models in connection with Your Matterport Portal account, and only on an iPad or other Apple device that You own or control as permitted by Apple’s App Store Terms of Service. The App is designed to communicate with the Matterport Portal over Wi-Fi and cellular networks, but You acknowledge that transmitting data over such networks is not 100% secure or free from risk of compromise.
  4. License Restrictions. Except as expressly set forth in this Agreement, You shall not, directly or indirectly, in whole or in part: (a) copy the App, except for downloading the App from the App Store onto Your Apple device as authorized under the license granted herein; (b) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App; (c) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Matterport’s prior written consent; (d) modify, or create derivative works based upon, the App, in whole or in part; (e) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; or (f) do anything which adversely affects Matterport’s right, title or interest in or to the App. You acknowledge that the software code underlying the App is Matterport’s confidential and proprietary information.
  5. Term. The term of this Agreement and the license granted herein continues until this Agreement is terminated by either party. You may terminate this Agreement at any time by discontinuing use of, and deleting all copies of, the App. This Agreement terminates automatically if You fail to comply with any of the terms of this Agreement. Upon any termination of this Agreement, You must cease use of the App and destroy all copies of the App.
  6. Ownership. At all times, Matterport will retain ownership of all proprietary rights in and to the App, and any copies thereof, including any copyright, patent, trade secret, trademark or other intellectual property rights therein, look and feel thereof, and any derivatives of the foregoing. Matterport reserves all rights that are not specifically granted to You hereunder.
  7. Warranty Disclaimer. THE APP IS PROVIDED “AS IS.” MATTERPORT MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MATTERPORT MAKES NO WARRANTY THAT THE APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP WILL MEET YOUR REQUIREMENTS. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You. In the event of any failure of the App to conform to any warranty required under applicable law, You may notify Apple, and Apple will refund the purchase price for the App to You; provided, however, that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty required under applicable law will be Matterport’s sole responsibility.
  8. Privacy. Matterport may use certain information collected through the App as generally described in Matterport’s Privacy Policy (available at www. matterport.com/legal/privacy-policy), which is incorporated herein by reference. Through Your use of the App, You consent to the collection and use (as set forth in the Privacy Policy) of information we and our service providers collect from You, including the transfer of this information within and between the United States and/or other countries for storage, processing, and use by Matterport, its affiliates and service providers, and third parties with which it has strategic relationships.
  9. Technical Support. Matterport may, but is not obligated to, provide maintenance or other technical support for the App. To the extent that any technical support is required by applicable law, Matterport, not Apple, shall be obligated to furnish any such support. Matterport may make changes to the App at any time without notice. Nothing in this Agreement obligates Matterport to support or provide You with updates or error corrections to the App.
  10. Third-Party Claims. Matterport shall not be obligated to indemnify, defend or hold You harmless with respect to any third-party claims arising out or relating to the App, including without limitation any claims for intellectual property infringement. To the extent Matterport is required by applicable law to provide such indemnification, Matterport, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such claim. Nothing in this Agreement shall be deemed an admission that any such claims may arise.
  11. Product Claims. Matterport, not Apple, is responsible for addressing any of the following claims by You relating to the App: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that You may have any such claims.
  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, OR FOR ANY OTHER CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF MATTERPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF MATTERPORT AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID TO MATTERPORT BY YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.
  13. Notice to United States Government End Users. If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the App for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that by installing and using the App, the App qualifies as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the App and associated documentation, and shall supersede any conflicting terms or conditions.
  14. Compliance with Law. You represent and warrant that: (a) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties. You may not export, re-export, import, or transfer the App in violation of any applicable export laws or regulations, and You may not assist or facilitate others in doing any of the foregoing. You acknowledge that it is Your responsibility to comply with any and all applicable export and import laws.
  15. Governing Law; Venue. This Agreement shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for Santa Clara County, California, and the parties specifically consent to Santa Clara County, California, as the exclusive venue for any such proceeding. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
  16. Miscellaneous. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed to the extent necessary to make it enforceable so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Matterport’s prior written consent, and any such attempt is void. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto. The parties acknowledge and agree that a material breach of this Agreement adversely affecting Matterport’s proprietary rights would cause irreparable harm to Matterport for which a remedy at law would be inadequate and that Matterport shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. This Agreement is the complete agreement between Matterport and You concerning Your use of the App, and supersedes any and all prior agreements and representations between Matterport and You related to the same subject matter. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (a) if to Matterport, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Matterport, Inc., 352 East Java Drive, Sunnyvale, CA 94089, Attn:  Legal Notices; or (b) if to You, by email or by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier to Your mailing address set forth in Your Matterport Portal registration.  No amendment of any provision of this Agreement shall be effective unless made in accordance with preliminary paragraphs hereof or set forth in a writing signed by a representative of Matterport and You, and then only to the extent specifically set forth therein.
  17. Contact. If You have any questions regarding the App or this Agreement, please contact us at info@matterport.com or at 352 East Java Drive, Sunnyvale, CA 94089.