Matterport Enterprise Camera Sales and Services Terms of Service
Last updated: July 19, 2019
INTRODUCTION AND ACCEPTANCE OF TERMS
These Matterport Enterprise Camera Sales and Services Terms of Service (the “Agreement”) set forth the terms and conditions pursuant to which an enterprise customer (“Company”) and its affiliated companies (“Company Affiliates”), if any, will have the ability to purchase Matterport 3D Cameras (each, a “Camera”) and subscribe to the Matterport Cloud for processing and hosting the Matterport 3D models created through the use of the Cameras. Matterport, Inc. (“Matterport”) and Company shall each be referred to as a “Party” and together, the “Parties”. This Agreement shall additionally be governed by the terms and conditions of the following online contracts, which are incorporated herein by reference (the “Additional Online Agreements”): (a) Matterport Cloud Subscription Agreement, located at https://matterport.com/legal/cloud-subscription-agreement (the “CSA”), which governs Company’s use of the Matterport Cloud; and (b) Matterport Camera Terms and Conditions of Sale located at https://matterport.com/legal/camera-terms-of-sale/ (the “Terms of Sale”), which govern Company’s purchase of Cameras. Undefined capitalized terms used in this Agreement shall have the meaning set forth in the CSA and/or Terms or Sale as applicable.
BY ELECTRONICALLY OR MANUALLY SIGNING A WRITTEN ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE (“ORDER”) COMPANY SIGNIFIES ITS AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT.
1. TERM; TERMINATION
1.1. Term. This Agreement will take effect on the effective date of the initial Order and, unless earlier terminated in accordance with this Agreement, will remain in effect for the term of all outstanding Orders (the “Term”).
1.2. Termination. Notwithstanding anything to the contrary in the CSA, neither Party will have the right to terminate this Agreement, any Order or the CSA for convenience during the Term. Either Party may terminate this Agreement and/or any Order by written notice to the other Party if the other Party commits a material breach of this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party. Matterport will also retain all of its termination rights set forth in the CSA, and this Agreement and each Order will immediately terminate upon any termination of the CSA.
1.3. Effect of Termination. Upon any termination of this Agreement, except as otherwise expressly provided in the CSA: (a) Matterport shall cease hosting Company’s Spaces; (b) all licenses granted hereunder shall terminate; and (c) Sections 1.3, 4, 5, 6, and 7 shall survive. In the event that Matterport terminates this Agreement pursuant to Section 1.2 or because it has terminated the CSA for cause, the remaining unpaid balance of the Minimum Subscription Fee (the annual fee set forth in the applicable Order) shall immediately become due and payable. In the event that Company terminates this Agreement pursuant to Section 1.2, Matterport shall refund the unused portion of any Subscription Fee (defined below) prepaid by Company. Company acknowledges and agrees that, in the event of any expiration or termination of this Agreement or any Order, Matterport will have no ability or obligation to remove any files for Spaces cached in computers or mobile devices in the possession of end users.
2. CAMERA SALES AND TRAINING
2.1. Pricing and Purchase of Cameras. The pricing in effect during the term of each Order for Cameras is set forth in the applicable Order. If Company is purchasing Cameras, Company agrees to purchase from Matterport the number and type of Cameras set forth in each Order according to the shipment schedule set forth in such Order. In addition, Company shall pay all associated sales taxes, and shipping and insurance charges invoiced by Matterport in connection with Company’s purchases of Cameras.
2.2. Invoicing and Payment. Matterport will invoice Company for each purchased Camera on the Order date. Company shall pay such invoice from Matterport within thirty (30) days of the date thereof. If any such payment is overdue, Matterport will have the right, without limitation, to impose a late fee equal to 1.5% per month or the maximum rate allowed by law, whichever is lower, on any overdue amounts. If Company has failed to pay any fee hereunder or on any other Matterport invoice when due and thereafter failed to make such payment within ten (10) days, Matterport also has the right, without limitation, to suspend Company’s access to and use of the Matterport Cloud until Matterport receives such overdue amount. Company agrees to pay outstanding invoices (“Outstanding Invoices”) in the amount and as per the schedule set forth in each Order.
2.3. Purchase Orders. If Company requires a purchase order to authorize payment under this Agreement, Company will provide Matterport with a fully executed, non-cancellable purchase order on the effective date of the applicable Order. Matterport will not be bound by any additional terms and conditions contained or referenced in any such purchase order, which are hereby rejected.
2.4. Camera Training. Matterport will provide to Company training to Company regarding operation of the Cameras, if any, as specifically set forth in each Order.
2.5. Purchases of Cameras by Company Affiliates. Company Affiliates, if any, will have the right to purchase Cameras based on the pricing set forth in each Order during the term of such Order. For each such purchase, Matterport and the applicable Company Affiliate will enter into a separate mutually executed, written Order.
3. SUBSCRIPTION TO MATTERPORT CLOUD
3.1. Subscription Period. The applicable Order sets forth the period of Company’s subscription to the Matterport Cloud (“Subscription Period”).
3.2. Subscription Fees. Company agrees to pay the subscription fees set forth in each Order (the “Subscription Fees”) for the right to access and use the Matterport Cloud.
3.3. Invoicing and Payment. Matterport will invoice Company for the Subscription Fees on the schedule set forth in each applicable Order. Company shall pay the undisputed portion of each such invoice from Matterport within thirty (30) days of receipt. If any such payment is overdue, Matterport will have the right, without limitation, to impose a late fee equal to 1.5% per month or the maximum rate allowed by law, whichever is lower, on any overdue amounts. If Company has failed to pay any fee hereunder or on any other Matterport invoice when due and thereafter failed to make such payment within thirty (30) days after receiving a written reminder from Matterport, Matterport will also have the right, without limitation, to suspend access to Company’s hosted Spaces, upon written notice to Company, until Matterport receives such overdue amount.
3.4. Subscriptions of Company Affiliates. Company Affiliates will have the right to subscribe to the Matterport Cloud and obtain hosting of Spaces based on the pricing set forth in each Order during the term of such Order. For each such subscription, Matterport and the applicable Company Affiliate will enter into a separate mutually executed, written Order.
“Confidential Information” means all information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party shall include the terms and conditions of: (a) this Agreement and each Order (excluding the Additional Online Agreements); and (b) business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party shall: (A) use at least the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (B) not disclose any Confidential Information of the Disclosing Party for any purpose to any third party other than those of its employees, contractors and agents who need access to such Confidential Information for purposes consistent with this Agreement and who have confidentiality obligations the Receiving Party that are no less stringent than those herein; and (D) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Additionally, the Receiving Party shall provide prompt notification to the Disclosing Party of any unauthorized access to or disclosure of the Disclosing Party’s Confidential Information. If the Receiving Party is compelled by law or any listing or trading agreement concerning its publicly-traded securities to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Upon termination or expiration of the Term, or at the request of the Disclosing Party at any time during or after the termination of expiration of this Agreement, the Receiving Party will deliver to the Disclosing Party or destroy and certify destruction (at the Receiving Party’s election) of all Confidential Information of the Disclosing Party.
Either Party may disclose the terms and conditions of this Agreement and each Order: (1) to legal counsel of such Party; (2) in connection with the requirements of an initial public offering or securities filing; (3) in confidence, to accountants, banks, and financing sources and their advisors; (4) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (5) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
5.1. Matterport, at its own expense, will indemnify, defend and hold harmless Company, its affiliated companies and their respective directors, officers, employees, and agents (each a “Company Indemnitee”) from and against any claim, demand, action, or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Claims”) brought by any third party against any Company Indemnitee to the extent that such Claim is based on, or arises out of any allegation that Company’s use of the Matterport Cloud, Matterport 3D Vision System, Documentation, or Services (excluding any imagery or other content uploaded to the Matterport Cloud by Company or any other Matterport customer) in accordance with this Agreement violates applicable law or infringes or violates any intellectual property right of any third party. The foregoing indemnification expressly excludes any Raw Sensor Data, Your Uploaded Content or any other content or technology provided by Company or its third-party agents, licensors or subcontractors. The foregoing indemnification obligation supplements, and does not replace, any other indemnification obligation set forth in the Additional Online Agreements.
5.2. The obligations of Matterport hereunder to defend and indemnify the Company Indemnitees shall be subject to the following: (a) the Company Indemnitee shall provide Matterport with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Matterport of its obligation to defend, indemnify and hold the Company Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Matterport shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that Matterport shall not settle any claim unless such settlement completely and forever releases the Company Indemnitee from all liability with respect to such claim or unless the Company Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Company Indemnitee shall cooperate with Matterport in the defense or settlement of any such claim or suit; provided, however, that the Company Indemnitee shall be reimbursed for all reasonable out-ofpocket expenses incurred in providing any cooperation requested by Matterport. Subject to clause (b) above, the Company Indemnitee may participate in the defense of any claim or suit in which the Company Indemnitee is involved at its own expense.
6. LIMITATION OF LIABILITY
The following limitation of liability shall expressly supersede and replace any exclusion of liability or disclaimer of liability set forth in the Additional Online Agreements:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATION OF EITHER PARTY, LIABILITY ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, LIABILITY ARISING AS A RESULT OF BREACH OF ANY LICENSE RESTRICTION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR LIABILITY ARISING AS A RESULT OF A PARTY’S BREACH OF ITS OBLIGATION PURSUANT TO SECTION 4 (CONFIDENTIALITY): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID OR DUE TO MATTERPORT UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL MATTERPORT OR ITS AFFILIATES OR LICENSORS BE LIABLE TO COMPANY FOR ANY UNAUTHORIZED REDISTRIBUTION OR DISPLAY OF ANY SPACES, VR SPACES OR DERIVED IMAGERY (OR PORTION THEREOF) BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION THROUGH ANY UNAUTHORIZED EMBEDDED LINKS OR CODE ON A THIRD-PARTY WEBSITE OR APP.
7.1. Entire Agreement. This Agreement, each Order and the Additional Online Agreements embody the entire agreement between the Parties with respect to the subject matter hereof and thereof, and supersede all prior negotiations, discussions, agreements and understandings between the Parties relating to the subject matter hereof and thereof. This Agreement is subject to all of the terms and conditions of the Additional Online Agreements, which are incorporated herein by reference, and Company hereby agrees to all such terms and conditions as modified by this Agreement. In the event of any conflict between the terms of this Agreement, any Order and/or the Additional Online Agreements (including any subsequent versions thereof), the terms of each Order shall control over any conflicting terms of this Agreement, and the terms of each Order and this Agreement shall control over any conflicting terms in the Additional Online Agreements. Except as expressly set forth in this Agreement, the Additional Online Agreements shall otherwise remain unchanged and in full force and effect.
7.2. Assignment. Neither this Agreement, any Order or any Additional Online Agreement, nor any rights, duties, or obligations hereunder or thereunder may be assigned or delegated to any other person or entity by either party, by operation of law or otherwise, without the express written consent of the other party; provided, however, that either party may assign this Agreement, all Orders and the Additional Online Agreements to an affiliated company or in the context of a merger, sale, acquisition or reorganization, without prior consent, provided the assignee agrees in writing to be bound by this Agreement, all Orders and the Additional Online Agreements and is capable of performing its obligations hereunder and thereunder. Subject to the limitations set forth herein, this Agreement, all Orders and the Additional Online Agreements will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns. Any purported assignment or delegation made by either party in violation of this Section shall be void.
7.3. Notices. Notwithstanding anything to the contrary in the Additional Online Agreements, except as otherwise expressly provided, any notice required to be given under this Agreement, any Order or any Additional Online Agreement (including, without limitation for breach, renewal or termination) shall be given in writing to the respective addresses of the parties set forth in the applicable Order, and shall be personally delivered, sent by a reputable overnight courier service (e.g., Federal Express), or sent by first class mail (certified or registered). Notices shall be considered to have been given at the time of actual delivery in person, one (1) business day after deposit with an overnight courier service, or five (5) business days after deposit in the mail. A copy of any notice sent to Company shall also be sent to any additional address of Company specified in the applicable Order. Notwithstanding the foregoing, Matterport will have the right to provide general service notices about the Matterport Cloud to Company via email or notices within Company’s Matterport Cloud account, provided that such notices are not of a legal nature and do not concern breach, termination, or renewal of this Agreement, any Order or the Additional Online Agreements.
7.4. Amendment. Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to Company by updating this posting. Thus, Company should visit this page periodically for changes. If Company disagrees with any changes to this Agreement, Company’s sole remedy is to discontinue its use of the Matterport Cloud. Company’s continued use of the Matterport Cloud after a change has been posted constitutes its acceptance of the change thereafter. No amendment of any provision of this Agreement by Company, and no amendment of any Order by either party, shall be effective unless set forth in a writing signed by a representative of each party, and then only to the extent specifically set forth therein. Preprinted terms on or attached to any purchase order Company issues hereunder and all other separate terms and/or documents introduced after the acceptance of this Agreement or the performance of Services, even if signed by Matterport, shall be null and void and of no effect without an amendment hereto expressly citing this Agreement. The Parties will have the right to amend the Additional Online Agreements as provided therein; provided, however, that in the event of any such amendment, the terms of this Agreement shall continue to control.
7.5. Delays. Neither Party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond such Party’s reasonable control.