Matterport VR App End User License Agreement
Last updated: August 15, 2016
This Matterport VR 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 virtual reality application (the “App”).
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT AND YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING AND SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU DO NOT HAVE THE RIGHT TO INSTALL OR USE THE APP.
Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting, such changes to be effective prospectively. Thus, You should check this page 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.
- 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 VR Spaces, and only on a VR-capable mobile device that You own or control (and, in the case of an Apple device, only on an iPad or other Apple device that You own or control as permitted by Apple’s App Store Terms of Service).
- 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 an authorized distribution channel, such as the Oculus website, Apple App Store or Google Play, onto Your VR-capable mobile device as authorized under the license granted herein; (b) copy any VR Space, except for downloading the VR Space from the Matterport Site to the App as authorized under the license granted herein; (c) access or use any Matterport API associated with the App in any manner other than through the App itself; (d) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App or any VR Space (or any component thereof, including without limitation associated imagery and technology); (e) extract, or attempt to extract, any VR Space (or any component thereof, including without limitation associated imagery and technology) from the App; (f) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Matterport’s prior written consent; (g) modify, or create derivative works based upon, the App or VR Spaces (or any component thereof, including without limitation associated imagery and technology); (h) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; or (i) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the App or VR Spaces, or adversely affects Matterport’s right, title or interest in or to the App or VR Spaces. Without limiting the generality of the foregoing, You may not: (i) host any digital copy of VR Spaces (or any component thereof, including without limitation associated imagery and technology) in any place other than the App; or (ii) redistribute any digital copy of any VR Space (or any component thereof, including without limitation associated imagery and technology) for any purpose. You acknowledge that the software code underlying the App and VR Spaces 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 and any VR Spaces. 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 any VR Spaces and destroy all copies of the App and VR Spaces.
- 6. Ownership; Feedback. At all times, Matterport and its licensors will retain ownership of all proprietary rights in and to the App and VR Spaces, and any copies thereof, including any copyright, patent, trade secret, trademark or other intellectual property rights therein, look and feel thereof, and any derivatives of the foregoing. Matterport and its licensors reserve all rights that are not specifically granted to You hereunder. Matterport may solicit, or You may elect to volunteer, feedback, ideas or other suggestions regarding the App (“Feedback”). You will not be obligated to provide Feedback to Matterport. However, if You elect to provide any Feedback, You hereby assign to Matterport, all right, title and interest (including, without limitation, all intellectual property rights including patent rights, copyrights and trade secrets) in such Feedback. Without additional consideration, You agree to perform all acts reasonably necessary for Matterport to perfect and enforce such rights.
- 7. Warranty Disclaimer. THE APP IS PROVIDED “AS IS.” MATTERPORT MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MATTERPORT MAKES NO WARRANTY 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 You downloaded the App through the Apple App Store and the App fails 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.
- 9. Technical Support. Matterport may, but is not obligated to, provide maintenance or other technical support for the App. 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. To the extent that any technical support for an App downloaded from the Apple App Store is required by applicable law, Matterport, not Apple, shall be obligated to furnish any such support.
- 10. Third-Party Claims; Product 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. Nothing in this Agreement shall be deemed an admission that any such claims may arise. To the extent Matterport is required by applicable law to provide indemnification relating to an App downloaded from the Apple App Store, Matterport, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such claim. Matterport, not Apple, is responsible for addressing any of the following claims by You relating to an App downloaded from the Apple App Store: (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.
- 11. Limitation of Liability. IN NO EVENT WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF MATTERPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF MATTERPORT AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID TO MATTERPORT BY YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.
- 12. Health and Safety Warnings. TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT OR PROPERTY DAMAGE, YOU SHALL ENSURE THAT, BEFORE USING THE APP, ALL USERS OF THE APP READ CAREFULLY ALL HEALTH AND SAFETY WARNINGS PROVIDED TO YOU BY THE MANUFACTURER OF YOUR VR-CAPABLE MOBILE DEVICE AND/OR VR HEADSET.
- 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. Subject to Section 2, this Agreement is the complete agreement between Matterport and You concerning Your use of the App, and supersedes any and all prior agreements and representations between Matterport and You related to the same subject matter. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (a) if to Matterport, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Matterport, Inc., 352 E. Java Drive, Sunnyvale, CA 94089, Attn: Legal Notices; or (b) if to You, by in-App notification, email, or by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier to Your mailing address set forth in Your Matterport Cloud 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.
- 16. Contact. If You have any questions regarding the App or this Agreement, please contact us at email@example.com or at 352 E. Java Drive, Sunnyvale, CA 94089.