Last updated: July 6, 2018
These Matterport Service Partner Program Terms and Conditions (the “Terms”) govern your (“You” / “Your”) application to, and participation in, the Matterport Service Partner Program (the “Program”) provided by Matterport, Inc. (“Matterport”). To apply to and participate in the Program, You must click “I Agree” where indicated in the Program registration process. BY CLICKING “I AGREE”, OR BY OTHERWISE APPLYING TO OR PARTICIPATING IN THE PROGRAM, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU MAY NOT APPLY TO OR PARTICIPATE IN THE PROGRAM. Matterport reserves the right to revise any portion of these Terms in its sole discretion at any time and without prior notice to You by updating this posting, such changes to be effective prospectively. Thus, You should visit this page periodically for changes. If You disagree with any changes to these Terms, Your sole remedy is to discontinue Your participation in the Program. Your continued participation in the Program after a change has been posted constitutes Your acceptance of the change thereafter.
1. Program Overview.
The Program is a free program managed by Matterport, in which current customers of Matterport (“Partners”) can provide scanning services (“Scanning Services”) to clients (“Clients”) who wish to create Spaces of one or more location(s). As further provided in these Terms, Matterport will provide leads and marketing assistance to Partners. However, except in cases where Matterport has entered into another contract with a Partner that directly engages the Partner as a subcontractor to Matterport in connection with a pre-negotiated program: (a) Matterport is not involved in the relationship between Partners and Clients, and Partners will contract directly with Clients with respect to providing the Scanning Services; (b) all Partners provide scanning services as independent providers and are not contractors, employees, agents or legal partners of Matterport; and (c) participation in the Program does not create a contractor, employment, agency or partnership relationship with Matterport. You do not have the right to enter into contracts or make any representations or warranties on behalf of Matterport. “Space” has the meaning set forth in the Matterport Cloud Subscription Agreement available at http://matterport.com/terms-of-service/.
2. Requirements for Participation in Program; Ongoing Review.
To be considered for participation in the Program, each applicant to the Program must: (i) own a minimum of one (1) Matterport Pro 3D camera (Model MC200), Matterport Pro2 3D camera (Model MC250), or any next-generation 3D camera developed by Matterport (“Camera”); (ii) submit to Matterport at least one (1) sample Space; (iii) not be a Matterport employee, subcontractor, or vendor; (iv) not be affiliated with a brokerage or real estate company; (v) have a current subscription to the Matterport Cloud; and (vi) submit to Matterport a business license and other business information reasonably requested by Matterport as part of its vetting process. Matterport will review each application to the Program and will admit or reject each applicant in its sole discretion. Matterport will confirm admission to the Program through the email provided in the application. Matterport reserves the right to require You, from time to time, to provide written updates regarding any of the application requirements set forth in this Section 2. In the event that Matterport becomes aware that You have engaged in any fraudulent or unprofessional conduct, as determined by Matterport in its sole discretion, either before or after accepting Your application to the Program, Matterport reserves the right to terminate Your participation in the Program immediately pursuant to Section 10.
3. Program Benefits; Restrictions.
In addition, in Matterport’s sole discretion, Matterport may: (a) refer customer leads to You when available; (b) promote You in Matterport-generated material such as galleries, blogs, and/or newsletters; and/or (c) based on performance or other eligibility criteria determined by Matterport, make available to You certain market development funds to support Your marketing efforts to Clients. For clarity, however, Matterport is not obligated to promote the business of any Partner and reserves the right to withhold such promotion in Matterport’s sole discretion. You must receive written approval from Matterport prior to using any marketing materials or quotes outside of the stated marketing guidelines.
(b) You shall not sell, or offer to sell, to any customer leads that Matterport refers to You, any image scanning or capturing services for three-dimensional and/or virtual reality models that are not Spaces based on Matterport technology and service offerings. In addition, You shall not sell, or offer to sell, to any third party any customer lead information that you obtain from Matterport through the Program. Under no circumstances shall You input any data into the MSP lead matching system for any purpose, including testing whether You are matched with hypothetical customers in Your area or for the purpose of obtaining information about any competitors in Your area. Finally, You shall not input into the MSP Member Portal any false or misleading information regarding Your sales or completion of services to customer leads or false information regarding Your MSP account data. Your failure to comply with any restriction set forth in this subsection or in the usage guidelines provided in the Support Portal will be grounds, without limitation, for Matterport to terminate Your participation in the Program immediately pursuant to Section 10.
4. Use of Matterport Branding.
(a) As provided in Section 3 above, upon acceptance in the Program, Matterport will provide You with access to Matterport logos and other Matterport branding (the “Matterport Marks”) for use in Your marketing materials to market Your Scanning Services to Clients. Matterport will post these Matterport Marks in the MSP Member Portal. Subject to the following terms and conditions, Matterport hereby grants You a revocable, non-exclusive, non-sublicensable (except as provided below), non-transferable, worldwide, royalty-free license, during the term hereof, to use and display the Matterport Marks (under any trademark rights, rights of publicity, and/or other rights Matterport may have in the Matterport Marks) solely in accordance with these Terms and the branding usage guidelines set forth in the MSP Member Portal. Your use of the Matterport Marks shall additionally conform to any additional general written trademark usage standards as Matterport may provide to You from time to time. You must receive written approval from Matterport prior to using any Matterport Marks outside of the stated branding guidelines.
(b) Upon written (email sufficient) request of Matterport, for Matterport’s quality control and monitoring purposes, You shall forward to Matterport representative samples (e.g., screenshots, collateral) of Your uses of the Matterport Marks. If Matterport becomes aware of any use by You of the Matterport Marks that Matterport deems improper in its reasonable discretion, Matterport will notify You of such improper use and You will promptly correct such use in a commercially reasonable manner, or discontinue such use, as directed by Matterport.
(c) You acknowledge and agree that the Matterport Marks are owned by Matterport or its licensors. You shall not oppose, protest or otherwise challenge the validity of the Matterport Marks, or the rights of Matterport or its licensors in the Matterport Marks. All use of the Matterport Marks shall inure solely to the benefit of Matterport or its licensors and shall not create any rights, title or interest in You in or to any of the Matterport Marks. You derive no rights in the Matterport Marks by virtue of these Terms except for the right to use as expressly set forth herein. You shall not use or register any of the Matterport Marks as an Internet domain name or create a combination mark or logo using Your name or marks with any Matterport Marks. You shall not use the Matterport Marks as Your core brand identity in any website or marketing materials You use or create. In addition, You shall not bid on any Matterport Mark as a keyword for the purposes of search engine marketing.
5. Ownership of Matterport Materials; License; Restrictions.
(a) “Matterport Materials” means any branding materials, artwork, copy, collateral, webinars, demos and other information or materials that Matterport makes available to You in connection with the Program. As between Matterport and You, except for the limited license granted herein, all right, title, and interest in and to any Matterport Materials, including without limitation any intellectual property rights therein, are and will remain the exclusive property of Matterport. To the extent either party combines or merges any Matterport Materials with or into Your materials, no such action shall operate to create a new work, joint work, or compilation or in any way alter Matterport’s exclusive ownership of the Matterport Materials as set forth in this Section, nor shall You assert any such ownership claim. Except for the limited license granted herein, Matterport reserves all rights in and to all Matterport Materials and nothing contained in these Terms shall be construed as conveying any right or license in such Matterport Materials, by implication, estoppel, or otherwise.
(b) Subject to these Terms, Matterport hereby grants You a limited, royalty-free, non-transferable (except as expressly permitted under these Terms), non-sublicensable, non-exclusive, revocable license, during the term hereof, to reproduce, display, publicly perform, and distribute any Matterport Materials provided by Matterport for the sole purpose of participating in the Program. Except as authorized by Matterport in the Matterport Materials, You shall not truncate, supplement, or otherwise modify the size, design, content, or appearance of any Matterport Materials without the prior written consent (email sufficient) of Matterport. For the avoidance of doubt, You shall not use any portion of the Matterport Materials in connection with any products or services outside the scope of the Program, and You shall not distribute, re-license or sell the Matterport Materials to a third party for such use.
6.Personally Identifiable Information.6.1 To the extent that you process any Customer Personal Data (as defined in the Data Processing Addendum ("DPA") and (i) the Customer Personal Data relates to individuals located in the EEA; or (ii) you are established in the EEA, the parties agree to process such personal data in accordance with the DPA accessible at https://matterport.com/legal/data-processing-agreement/. For the purposes of this Agreement: "personal data", "process" and "EEA" shall have the meanings as set out in the DPA.
7. No Warranty.THE PROGRAM IS 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. MATTERPORT DOES NOT REPRESENT OR WARRANT: (a) THAT THE PROGRAM WILL MEET YOUR NEEDS OR REQUIREMENTS; (b) THAT THE PROGRAM WILL INCREASE YOUR BUSINESS OR REVENUE; OR (c) THE NUMBER LEADS THAT THE PROGRAM WILL GENERATE FOR YOUR BUSINESS.
8. Limitations 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 THESE TERMS 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. 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 these Terms 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.
9. Indemnification.You acknowledge that by allowing You to participate in the Program, Matterport does not assume any responsibility or liability for any risks associated with Your business. Accordingly, You shall defend, indemnify and hold harmless Matterport, its affiliates, and their respective officers, directors, employees and representatives from and against all claims, actions or suits by Clients or any third parties arising out of or relating in any way to the conduct of Your business (including all activities of any subcontractors providing services as part of Your business), any Scanning Services, or Your participation in the Program, and all associated liability, judgments, losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim in respect of which Matterport seeks indemnification from You under this Section, Matterport will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys; provided, however, that You shall not settle any claim unless such settlement completely and forever releases the indemnified Matterport party from all liability with respect to such claim or unless the indemnified Matterport party consents to such settlement in writing.
10. Term and Termination.These Terms will become effective upon Your acceptance of these Terms as set forth in the preamble above and will continue in effect until terminated as set forth herein. Matterport will have the right, upon written notice sent to the email address provided in Your application, to revoke Your participation in the Program and terminate these Terms at any time in Matterport’s discretion, including without limitation due to Your poor conduct or violation of any restriction set forth herein. You will have the right to withdraw from the Program and terminate these Terms at any time by emailing written notice to Matterport at email@example.com. Upon any termination of these Terms: (a) You shall immediately cease using any Matterport Marks and Matterport Materials; (b) Matterport will have the right to remove Your information from any Program databases and promotional materials; (c) Matterport will have the right to terminate Your access to any exclusive Program materials and resources; and (d) Sections 4(c), 5(a), 6, 7, 8, 9, 10 (effect of termination), 11, and 12 shall survive.
11. Notices.Any notice required or permitted to be given by Matterport under these Terms shall be in writing and shall be delivered to the email address You provided in Your application to the Program, or via registered mail return receipt requested or an internationally recognized courier addressed to the address specified in Your application. Any notice required or permitted to be given by You under these Terms must be sent to Matterport via registered mail return receipt requested or an internationally recognized courier to 352 E Java Dr, Sunnyvale CA 94089, USA. Any such notice will be deemed to have been given when sent.
12. Miscellaneous.You shall be responsible for any breach of these Terms caused by any of Your subcontractors providing services to Your business. You shall not assign these Terms without the prior written consent of Matterport, and any such attempt is void. These Terms are binding upon and are for the benefit of the respective successors and assigns of the parties hereto. The Parties acknowledge that the relationship of the Parties is that of independent contractors and that nothing contained in these Terms shall be construed to place You and Matterport in the relationship of principal and agent, master and servant, partners or joint ventures. Any reference to “Partners” in these Terms shall not be deemed to establish a legal partnership of any nature. No amendment of any provision of these Terms shall be effective unless made in accordance with the first paragraph of these Terms or set forth in a writing signed by a representative of Matterport and You, and then only to the extent specifically set forth therein. No waiver by either party of any condition or the breach of any provision of these Terms in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision. These Terms shall be governed by the laws of the State of California, without regard to its conflict of law rules. 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. If any provision of these Terms or part hereof not essential to the commercial purpose of these Terms 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. These Terms embody the entire agreement between the Parties with respect to the subject matter hereof, and supersede all prior negotiations, discussions, agreements and understandings between the Parties relating to the subject matter hereof. Notwithstanding the foregoing, for the avoidance of doubt, these Terms do not govern any purchase of Cameras, which is governed by the Matterport Camera Terms of Sale at https://matterport.com/legal/camera-terms-of-sale-2/, or use of the Matterport Cloud, which is governed by the Matterport Cloud Subscription Agreement at http://matterport.com/terms-of-service/