Matterport Portal Subscription Agreement2653
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| This is the Matterport Portal Subscription Agreement - Lasted updated: 28 January 2016. I am reprinting it here so that it will be easy to red-line, when Matterport makes changes so that we can see "what changed" ... Dan ---- This Matterport Portal Subscription Agreement (the “Agreement”) sets forth the terms and conditions pursuant to which Matterport, Inc. (“Matterport”) will provide you or the entity that you represent (“You”) with the right to access and use the Matterport Portal. The “Matterport Portal” means Matterport’s proprietary application (and other technologies available therein, including the 3D Showcase, 3D Workshop and the Positional Technology (each as defined below)) hosted by Matterport, with which each Matterport Pro 3D Camera (“Camera”) must communicate, via the Matterport 3D Capture application (the “App”), for the imagery generated by the Camera and related technology to be processed to produce 3D Showcases. The Matterport Portal, along with the Camera, the App, 3D Showcases, 3D Workshop and any other Matterport technologies and services made available by Matterport for use therewith, are collectively referred to in this Agreement as the “Matterport 3D Vision System.” To access and use the Matterport Portal, You must click “I Agree” where indicated in the Matterport Portal user registration process. BY CLICKING “I AGREE” PRIOR TO YOUR USE OF THE MATTERPORT PORTAL, OR BY OTHERWISE ACCESSING OR USING THE MATTERPORT PORTAL, 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 THE MATTERPORT PORTAL. 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 visit this page periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the Service. Your continued use of the Service after a change has been posted constitutes Your acceptance of the change thereafter. Subscription to Matterport Portal. Subject to the terms and conditions of this Agreement, Matterport grants You (and up to the number of Authorized Users allowed under Your then-current subscription plan) a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right, during the Subscription Period (defined below), solely in connection with Your use of the Camera and the App, to: (a) use the 3D imagery processing functionality on the Matterport Portal to generate 3D Showcases; and (b) use the 3D imagery hosting functionality on the Matterport Portal to have 3D Showcases hosted on the Matterport Portal. The foregoing does not include a license to source code of any kind. In addition to the restrictions set forth in this Agreement, You are only authorized to use the Matterport Portal in accordance with any instructions made available by Matterport regarding the Matterport 3D Vision System (collectively, the “Documentation”). You will cause each Authorized User to comply with all applicable terms and conditions of this Agreement, and any breach of this Agreement caused by any Authorized User will be deemed a breach by You. Unless otherwise mutually agreed with Matterport, Your subscription to the Matterport Portal will be on either a monthly or an annual basis, commencing on the earlier to occur of: (a) the date Your account ID is created in the account set-up process within the Matterport Portal; or (b) seven (7) business days after payment is received. If Matterport, in its discretion, provides You with a trial subscription, the subscription will commence on the date Matterport authorizes such trial access. Your subscription will expire, as applicable, on the last day of the calendar month following the month in which Your subscription commenced (for monthly subscriptions) or on the last day of the calendar month in which the one-year anniversary of Your subscription commencement date falls (for annual subscriptions), and your subscription will automatically renew unless terminated as provided below. Each monthly or annual subscription period described above, as applicable, and any renewal thereof are collectively referred to as the “Subscription Period”. In the event You cancel Your subscription or Matterport terminates this Agreement as set forth below, the Subscription Period will end on the last day of the calendar month in which You cancel Your subscription or on the date of Matterport’s termination. “3D Showcase” means an application, using the Positional Technology and WebGL or other technologies as specified by Matterport now or in the future, that displays Showcase Imagery within a Standard 3D Model to enable a user to navigate through a virtual depiction of a particular space through a Web browser, virtual reality interface or mobile application (to the extent that Matterport makes a virtual reality interface and/or mobile application available in its discretion). “Positional Technology” means Matterport’s proprietary technology that specifies the location of Digital Objects. “Digital Objects” are digital files or metadata such as visual files, annotations, digital media, or other information, that can be displayed in specified locations within a Standard 3D Model. “Showcase Imagery” means imagery that combines Digital Objects generated on the Matterport Portal, in whole or in part, with a Standard 3D Model. “Standard 3D Model” means a digital 3D model produced by or from any Matterport 3D Camera. “Authorized Users” means Your employees, corporate affiliates, and subcontractors (during any period in which the subcontractor is providing services to You). “3D Workshop” is an application that is part of the Matterport Portal and allows the user to view and manage Showcase Imagery and Derived Imagery (as defined below). Fees. Except as provided below, Your right to access and use the Matterport Portal for each Subscription Period is subject to Matterport’s receipt of the then-applicable subscription fee for such Subscription Period. Matterport will allow You to use the Matterport Portal at no charge until the 1stof the month following the start of your subscription, at which time Matterport will charge the initial subscription fee. Thereafter, until termination of the subscription, Matterport will charge You the subscription fee on the 1stof every month, for monthly subscriptions, or on the anniversary of your initial subscription fee payment, for annual subscriptions. In addition to the subscription fees, Matterport will also have the right to charge You the following fees, without limitation: (a) fees for any 3D Showcases that are created during any calendar month in excess of the number of 3D Showcases included in Your subscription tier; (b) fees for any add-on feature You request, such as schematic floorplans or VR model versions; and (c) fees for any standard .obj export file of any of Your Standard 3D Models that you download pursuant to Section 7.7. Matterport reserves the right to introduce other additional paid services, and to discontinue the foregoing services or any other additional services at any time. The fees for all additional paid services are posted on the Matterport website, provided that Matterport reserves the right to change such fees at any time by posting a revised fee on the Matterport website. Matterport may bill You for all additional services at the time of delivery. The Portal administrator for any Portal account can enable/disable the ability of specific users to order additional services. Matterport may suspend or terminate Your access to the Matterport Portal 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. Matterport reserves the right to modify the subscription fees and other fees at any time. You are responsible for the payment of all applicable taxes and duties, if any, associated with Your subscription to the Matterport Portal and with Your purchase of other products and services associated with Your Matterport Portal account, excluding taxes based on Matterport’s income. Matterport reserves the right, in its sole discretion, to offer unpaid trial subscriptions to the Matterport Portal in certain cases. In the event Matterport provides You with a trial subscription, the terms of this Section 2 regarding subscription fees do not apply during the period of such trial subscription. Restrictions. You shall not: (a) sell, lease, license, rent, resell or otherwise transfer Your access to the Matterport Portal, in whole or in part, to any third party that is not an Authorized User; (b) reverse engineer, decompile, or disassemble the Matterport Portal (or any component thereof); (c) modify or create any derivative work based on the Matterport Portal (or any component thereof) or any of the Documentation; (d) copy the Matterport Portal (or any component thereof); (e) remove any proprietary notice or label from any of the Documentation; or (f) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Matterport Portal, or adversely affect Matterport’s right, title or interest in or to the Matterport Portal. You also shall not use any deep-link, page-scrape, spider, robot, crawl, index, or other automatic device, program, algorithm or technology to use, access, copy, acquire information from, generate impressions on, input information to, store information on, search on, generate searches on or monitor any portion of the Matterport Portal. User Conduct. You shall not cause to be uploaded to the Matterport Portal (through Your Camera) any of the following: (a) any content subject to copyright that is not Your original work, unless You have permission from the rightful owner; (b) any confidential or private information of any third party without the express consent of such third party; (c) any content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (d) any content that infringes or misappropriates any third-party intellectual property right, or is invasive of any privacy or publicity right. You also agree not to use the Matterport Portal for any illegal or improper purpose, and not to conduct any activities that could damage, disable, overburden or impair the Matterport Portal. Account. You shall provide Matterport with complete and accurate information for Your Matterport Portal account, including Your billing and payment information, and keep such information up to date with Matterport. You are responsible for maintaining the security and confidentiality of Your login information, including the password, associated with Your Matterport Portal account, and for all activities that occur under Your account. If You become aware of any unauthorized or illegal use of any such login information, You shall immediately notify Matterport. Technical Support. Matterport will use commercially reasonable efforts to keep the Matterport Portal operational, exclusive of downtime necessary for scheduled and emergency maintenance. Matterport shall provide reasonable technical support to Customer, through email and a support hotline, during the hours of 9 a.m. to 5 p.m. Pacific Time, Monday through Friday (excluding national holidays), for all issues relating to the operation and use of the Matterport Portal. Except as otherwise expressly provided in this Agreement, Buyer is solely responsible for all development, operation, maintenance, content, and end user support relating to Buyer’s website. Imagery. 7.1 Ownership. 7.1.1 Raw Camera Imagery and Model Metadata. As between the parties to this Agreement, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own the copyrights in: (a) all imagery that You capture and generate on the Camera and App and upload to the Matterport Portal (“Raw Camera Imagery”); and (b) all model-related data that You submit to the Matterport Portal, including without limitation model names, model addresses, model descriptions, and 2-D floorplans of models (“Model Metadata”). Matterport will only have the rights to use the Raw Camera Imagery and Model Metadata as set forth in Section 7.3. Notwithstanding, the foregoing, Matterport will own all digital copies of Raw Camera Imagery, and You shall only use the Raw Camera Imagery to upload it to Matterport via the App. Without limiting the generality of the foregoing, You may not access the Raw Camera Imagery on, or extract the Raw Camera Imagery from, the Camera or the App in any manner. Matterport has no obligation to provide any Raw Camera Imagery to You either during or after the Subscription Period. 7.1.2 Showcase Imagery. As between the parties hereto, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own the copyrights in all Showcase Imagery, and You may transfer ownership of such copyrights to any third party without Matterport’s consent subject to the following conditions: (a) any purported transferee of such copyrights that asserts such copyrights or makes any request or demand to Matterport with respect to such copyrights shall provide sufficient written evidence of such transfer to Matterport, as determined by Matterport in its sole discretion; and (b) in connection with any such transfer, You shall assign this Agreement to such transferee, cause the transferee to assume in writing all of Your rights and obligations under this Agreement, and supply Matterport with a copy of such written assumption by the transferee. Matterport will only have the rights to use the Showcase Imagery as set forth in Section 7.3. Notwithstanding, the foregoing, Matterport will own all digital copies of Showcase Imagery, and You shall only access, use and download the Showcase Imagery as expressly permitted under this Agreement. Without limiting the generality of the foregoing, except as expressly otherwise permitted under this Agreement, You may not: (a) host any digital copy of Showcase Imagery or take other measures to make Showcase Imagery available to users directly from Your servers or any third-party servers provided on Your behalf; or (b) download any digital copy of Showcase Imagery to a local computer and redistribute such digital copy (or any modified version of such digital copy or other derivative work) for any purpose. You acknowledge that, except as set forth in Section 7.7 below, You will not have the right to access any of the Showcase Imagery generated on the Matterport Portal following the expiration or termination of the Subscription Period. 7.1.3 Derived Imagery. As between the parties hereto, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own all derivative works, images and videos that are generated through functionalities on the Matterport Portal from Showcase Imagery, including all digital copies thereof and copyrights therein (collectively “Derived Imagery”), and You may transfer ownership of, or sell access to, any of the Derived Imagery to any third party without Matterport’s consent. Notwithstanding the foregoing, You acknowledge that, except as set forth in Section 7.7 below, You will not have the right to access any of the Derived Imagery generated on the Matterport Portal following the expiration or termination of the Subscription Period. For the avoidance of doubt, You also acknowledge that: (a) Derived Imagery does not include the Showcase Imagery, which is addressed in Section 7.1.2; and (b) all Digital Objects are part of the Showcase Imagery, and not included in Derived Imagery, and that all such Digital Objects may only be accessed through the relevant 3D Showcase. 7.2 Viewing and Managing 3D Models. 7.2.1 Viewing 3D Models. Subject to any conditions and restrictions set forth in this Agreement, You may allow, and are encouraged to allow, third parties to view any of Your Standard 3D Models or 3D Showcases: (a) directly on the Matterport Portal; (b) in the form of a screen shot or fly-through video file that is captured through functionality provided on the Matterport Portal and/or through third-party screen capture software; (c) in an .OBJ file exported in accordance with Section 7.7; or (d) through a link to the Matterport Portal provided by Matterport; provided that Matterport may, but is not obligated to, provide support to any such third parties. 7.2.2 Allowing Third Parties to Access and Share 3D Models. You may allow, and are encouraged to allow, third parties (up to Your maximum number of Authorized Users of the Matterport Portal) to collaborate on and make changes to Derived Imagery hosted on the Matterport Portal. In addition, within your Matterport Portal account, You will have the ability to designate each 3D Showcase (including associated Showcase Imagery and Model Metadata) as “public” or “private” and privately share each 3D Showcase in accordance with Matterport’s user documentation, which Matterport may update from time to time in its sole discretion. 3D Showcases (including associated Showcase Imagery and Model Metadata) that are designated as public can be viewed by anyone on the Internet and will be publicly available on the Matterport Portal. Matterport will also have the right to publicly display and distribute such public 3D Showcases in the additional ways described in Section 7.3. Unless You grant access to a specific third party, Matterport will not share any 3D Showcases (including associated Showcase Imagery or Model Metadata) that are designated as private with any third parties other than Authorized Users. 7.2.3 Deleting 3D Models; Effect of Account Termination. Within your Matterport Portal account, You will have the ability to delete specific 3D Showcases (including associated Showcase Imagery and Model Metadata). Deleted 3D Showcases will no longer be accessible in Your account. 7.3 License to Matterport. You hereby grant to Matterport a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to: (a) host, reproduce, modify and create derivative works from the Raw Camera Imagery to generate the Showcase Imagery; (b) subject to Your direction, host, reproduce, modify, distribute, publicly perform and publicly display the Showcase Imagery and Model Metadata on the Matterport Portal on Your behalf; (c) subject to Section 7.2, distribute, syndicate and display the Showcase Imagery and Model Metadata on third-party websites and authorized apps through links to the Matterport Portal; (d) use Raw Camera Imagery, Showcase Imagery and Model Metadata for internal purposes such as product development, testing and troubleshooting; (e) create derivative works from the Showcase Imagery to create the Derived Imagery; (f) host, reproduce, modify, create derivative works from, distribute, publicly perform and publicly display the Derived Imagery on the Matterport Portal; and (g) subject to Section 7.2, distribute, syndicate and display the Derived Imagery on third-party websites and authorized apps through links to the Matterport Portal. 7.4 No Conflicting Interests. You represent and warrant that You have all rights, consents and/or permissions necessary to grant Matterport the license set forth in Section 7.3, including under any and all copyright and other intellectual property rights, as well as any moral rights, rights of privacy, rights of publicity and similar rights of any type in or to all Raw Camera Imagery and Derived Imagery. YOU SHALL NOT CAUSE TO BE UPLOADED ON THE MATTERPORT PORTAL ANY CONTENT FOR WHICH YOU DO NOT HAVE ALL SUCH NECESSARY OWNERSHIP RIGHTS AND/OR LICENSES, CONSENTS OR PERMISSIONS. 7.5 Responsibility. As between the parties to this Agreement, You are responsible for all of all Raw Camera Imagery and Derived Imagery, including for the accuracy, legality and integrity of such content; provided, however, that Matterport shall have the right (but not the obligation) in its sole discretion to remove from the Matterport Portal any such content that violates this Agreement or any of Matterport’s policies and procedures, or is otherwise objectionable. 7.6 Storage; Security; Transmission. You acknowledge that certain servers and databases are maintained by or on behalf of Matterport to store Raw Camera Imagery, Showcase Imagery, Derived Imagery and other data processed by the Matterport Portal, and that Matterport may keep such information indefinitely or delete it following expiration of the time period set forth in Section 7.7 below, in Matterport’s discretion. Matterport employs reasonable technological and operational security procedures intended to protect such data from loss, misuse, alteration, or destruction. However, You acknowledge that no security measure can guarantee against compromise, and Matterport does not guarantee that the servers and databases underlying the Matterport Portal will not experience any such compromise. You acknowledge that Matterport has no responsibility or liability for the deletion of or failure to store any of the Raw Camera Imagery, Showcase Imagery or Derived Imagery. You also acknowledge that the Raw Camera Imagery, Showcase Imagery and Derived Imagery are transmitted by Matterport to and from You and authorized third parties via the Internet and other technologies, and that such transmissions cannot be made to be 100% secure or free from risk of compromise. 7.7 Export. During the term of this Agreement, You will have the ability to download a standard .obj export file of any of Your Standard 3D Models then in existence on the Matterport Portal, provided You first pay Matterport’s then-current standard download fee, if any, for each .obj file in such export. Following payment of such fee for a particular .obj file, You will have the right to download such .obj file as many times as You wish during the term of this Agreement. You acknowledge that Matterport is not obligated to provide You with any support in connection with such export file or Derived Imagery or Standard 3D Models following expiration or termination of this Agreement. You further acknowledges that, other than the access provided to 3D Showcases via the Matterport Portal during the Subscription Period, and except as provided in Section 7.2, Matterport has no obligation to provide You with an export file or any other download of the Showcase Imagery (or any Digital Objects, Positional Technology or other content therein) at any time during or after the Subscription Period. Schematic Floorplan Service. 8.1 Overview. Matterport, in its sole discretion, may elect to offer through the Portal an additional service through which Matterport will create a schematic floor plan (“Schematic Floor Plan”) from Your existing Standard 3D Models stored on the Matterport Portal. If You choose to use this service, You must designate and provide Matterport with access to the Standard 3D Models for which You are requesting a Schematic Floor Plan and pay the additional fee for the service posted on the Matterport website. You will be charged, via Your credit card on file, for each Schematic Floor Plan delivered. Matterport reserves the right to terminate the service at any time in its sole discretion. Once the service terminates, Matterport will have no further obligation to create or provide any additional Schematic Floor Plans ordered after the date of termination. 8.2 Licenses and Ownership. You hereby grant Matterport a royalty-free, worldwide, non-exclusive right to use Your Standard 3D Models to create the Schematic Floor Plans. Matterport hereby grants You a personal, non-exclusive, perpetual, worldwide license to use, evaluate, reproduce, publicly perform and publicly display, and distribute each Schematic Floor Plan made available to You. You may not use the Schematic Floor Plan other than as expressly permitted by this license. Without limiting the foregoing, You acknowledge and agree that the Schematic Floor Plan and all intellectual property rights therein, including copyrights, patent rights, trade secret rights and trademark rights, are owned by Matterport. All rights not expressly granted herein are reserved by Matterport. You may grant a sublicense to end users to use the Schematic Floor Plans for their internal purposes and to publicly display Schematic Floor Plans relating to property owned by such end users solely for the purpose of promoting such property; provided that You will cause each such end user to comply with written terms and conditions that contain standard license restrictions, ownership statements, disclaimers of warranty and limitations of liability that are applicable to the Schematic Floor Plans 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 Schematic Floor Plans or otherwise: (a) impose or purport to impose any obligation on Matterport; or (b) make or purport to make any representation, warranty or covenant on behalf of Matterport. 8.3 Branding. You acknowledge that each Schematic Floor Plan will contain a Matterport logo and other branding and proprietary notices of Matterport. You shall not remove, alter or obscure any such logo, branding or notices. Notwithstanding the foregoing, however, You may add to each Schematic Floor Plan Your own logo and/or notices, provided that any such logo and/or notices: (a) are in compliance with, and do not result in a violation of, the terms of this Agreement; and (b) shall not state or imply that You are the owner or creator of the Schematic Floor Plan. 8.4 Disclaimer. MATTERPORT DOES NOT REPRESENT OR WARRANT THAT ANY MEASUREMENTS, INCLUDING WITHOUT LIMITATION SQUARE FOOTAGE MEASUREMENTS, IN ANY SCHEMATIC FLOOR PLAN WILL BE ACCURATE OR COMPLETE. 8.5 Responsibility for Content. You shall be responsible for: (a) any content of Your Standard 3D Models; (b) the content of any Schematic Floor Plans created from Your Standard 3D Models; and (c) the consequences of sharing or publishing any Schematic Floor Plans, including without limitation the disclosure of confidential or personally identifiable information. You affirm, represent, and warrant that You own or have the necessary licenses, rights, consents, and permissions to use the content of Your Standard 3D Models as provided in this Agreement and to distribute, display and publish any such Schematic Floor Plan. Usage Data and Derived Data. You acknowledge and agree that Matterport will collect through the Matterport 3D Vision System, and process and store on servers operated by Matterport or on Matterport’s behalf, data regarding Your usage of the Matterport 3D Vision System and data derived from the Raw Camera Imagery, Showcase Imagery, Derived Imagery and other Model Metadata that You provide via the Matterport Portal. You acknowledge and agree that Matterport may aggregate some of this data with similar information collected from other Matterport 3D Vision System users, and may share that information with third parties (in aggregated and/or non-aggregated forms); provided, however, that any such shared information will not identify You individually and will not include or disclose any of Your Raw Camera Imagery, Showcase Imagery, Model Metadata or Derived Imagery itself. Privacy. Matterport may use certain information collected through the Matterport Portal as set forth in our Privacy Policy, which is incorporated by reference to this Agreement. 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 Portal and related services to You. One way in which Matterport collects such data is through the use of cookies. When users access the Matterport Portal, Matterport sets a cookie named “token” to keep track of which users are logged in so Matterport can show them only models and other content to which they are supposed to have access. Such tracked information is retained for the current session until the user logs out. Through Your use of the Matterport Portal, You consent to the collection and use (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 affiliates and service providers, and third parties with which it has strategic relationships. Intellectual Property Rights. 11.1 Reservation of Rights. All rights not expressly granted herein are reserved by Matterport, including, but not limited to, the unrestricted right to grant access to the Matterport Portal to any third party in any form anywhere. Nothing in this Agreement is intended by the parties to constitute a sale of the software underlying the Matterport Portal or the Documentation, or any derivations thereof. Matterport reserves the right to modify the Matterport 3D Vision System at any time in Matterport’s discretion. 11.2 Title. The Matterport Portal (including the underlying software) and the Documentation are the valuable proprietary information and property of Matterport and its licensors. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Matterport Portal and the Documentation, and all derivatives thereof, shall remain with Matterport and its licensors. You acknowledge the ownership and intellectual property rights of Matterport and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights. 11.3 Marks. The trademarks, logos and service marks (each, a “Mark”) displayed on the Matterport Portal or on Matterport’s other offerings are the property of Matterport or third parties. You shall not use or allow the use of any Mark without the prior written consent of Matterport or applicable third-party owner of the Mark. You shall not take steps to alter, cover or otherwise obscure from view any Mark that is part of any 3D Showcase, the Matterport Portal, or other Matterport technology used to generate or provide any 3D Showcase. In the event You display any trademark, logo, service mark, tradename or other branding on any page on which You display any 3D Showcase or in any other place where You promote the use of 3D Showcase or Matterport technology, You shall not do so in a manner that implies, or reasonably could imply, that any portion of the Matterport Portal or other Matterport technology used to generate or provide any 3D Showcase is owned by You or any third party. Furthermore, prior to displaying any trademark, logo, service mark or tradename to directly brand or label Your display of any 3D Showcase, You shall obtain the prior written consent of Matterport and enter into a trademark license agreement with Matterport obligating You to display such trademark, logo, service mark or tradename in conjunction with the “Powered by Matterport” logo. 11.4 Feedback. Although You will remain the owner of any feedback, ideas or other suggestions that You communicate to Matterport regarding the Matterport 3D Vision System, You hereby grant Matterport a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable, sublicensable, unlimited, worldwide right to use and otherwise commercially exploit any such feedback, ideas or other suggestions so provided to Matterport. No Warranty. THE MATTERPORT PORTAL AND RELATED SERVICES 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. MATTERPORT DOES NOT REPRESENT OR WARRANT THAT THE MATTERPORT PORTAL OR RELATED SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE MATTERPORT PORTAL OR RELATED SERVICES WILL BE ACCURATE OR RELIABLE, THAT USE OF THE MATTERPORT PORTAL OR RELATED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE MATTERPORT PORTAL OR RELATED SERVICES WILL BE CORRECTED. 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 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. 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 3D SHOWCASES OR SHOWCASE IMAGERY BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION THROUGH ANY UNAUTHORIZED EMBEDDED LINKS OR CODE ON A THIRD PARTY WEBSITE. 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. Indemnification. You acknowledge that by providing You access to the Matterport Portal, 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 any third party, including all associated liability, judgments, fines, losses, costs, damages, and settlements, including reasonable legal fees and expenses, arising out of or relating in any way to: (a) the conduct of Your business or the use of or inability to use the Matterport 3D Vision System; (b)Your breach of any of Your covenants, representations and/or warranties set forth in this Agreement; or (c) Your use, distribution, display or publication of any Standard 3D Model, 3D Showcase, Showcase Imagery, Derived Imagery or Schematic Floor Plan. In the event of a claim in respect of which Matterport seeks indemnification from You under this Section 14, 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. Term and Termination. 15.1 Term. The term of this Agreement will commence upon Your acceptance of this Agreement as set forth in the preamble above and, unless earlier terminated as set forth herein, will continue for the Subscription Period. 15.2 Termination by You. You may terminate this Agreement (cancelling Your access to the Matterport Portal) at any time upon 30 days prior written notice to Matterport. 15.3 Termination by Matterport. Matterport may terminate this Agreement (and cancel Your access to the Matterport Portal or any component thereof) at any time if You have failed to pay any subscription fee when due and failed to make such payment within thirty (30) days after receiving a reminder from Matterport in writing. Matterport may also terminate this Agreement (and cancel Your access to the Matterport Portal or any component thereof) prior to the end of any Subscription Period if You have committed any other material breach of this Agreement and failed to cure such material breach within ten (10) days after receiving written notice of the breach from Matterport. 15.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement: (a) Your access to the Matterport Portal (and access for every Authorized User under Your account) will be deactivated unless You enter into a new subscription on Matterport’s then available terms (and Matterport may elect in its discretion not to offer You a renewal subscription to the Matterport Portal for a new Subscription Period); (b) Matterport will have the right to continue to host and display any Showcase Imagery and associated 3D Showcases that were designated as “public” as of the date of expiration or termination, as further provided in Sections 7.2.3 and 7.3; and (c) Your subscription fee (or any portion thereof) for the Subscription Period then in effect will not be refunded. In the event that Matterport terminates this Agreement pursuant to Section 15.3, notwithstanding anything in Section 7.7 to the contrary, Matterport will have no further obligation to deliver to You, or make available to You for download, any portion of Your Derived Imagery or Standard 3D Models. 15.5 Survival. Upon the expiration or termination of this Agreement, the rights and obligations of the parties will cease, except for the rights and obligations in all provisions of this Agreement which by their nature contemplate performance after the expiration or earlier termination hereof, including without limitation under Sections 3, 7, 8, 9, 10, 11, 12, 13, 14, 15.4, 15.5, 16, 17, 18, 19, 20 and 21. 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 Portal 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 Portal, the Matterport Portal 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 Portal and associated documentation, and shall supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation. 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 Your right to access the Matterport Portal 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. 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. 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 in connection with Your purchase of the Camera associated with Your Matterport Portal account, by means of a service notice within Your account, or via registered mail return receipt requested or an internationally recognized courier addressed to the address You provided in connection with Your purchase of the Camera associated with Your Matterport Portal account. 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. Matterport 3D Capture App. To use the Matterport Portal (and the Camera), You must also download to an Apple device the App made available through Apple’s App Store. Use of the App is subject to Matterport’s End User License Agreement for the App. 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 affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. No amendment of any provision of these Terms shall be effective unless made in accordance with Section 1 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. 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 and any policies incorporated herein by reference constitute the complete agreement between Matterport and You concerning the Matterport Portal Subscription Agreement, and supersede any and all prior discussions, negotiations, agreements and representations between Matterport and You related to the same subject matter. Notwithstanding the foregoing, this Agreement does not govern any purchase of Cameras, which is governed by the Matterport Pro 3D Camera Terms of Sale. |
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Morten private msg quote post Address this user | |
Nothing like being to the point  |
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Frisco, Texas |
Metroplex360 private msg quote post Address this user | |
| You shall not: (a) sell, lease, license, rent, resell or otherwise transfer Your access to the Matterport Portal, in whole or in part, to any third party that is not an Authorized User; We have discussed "What if" scenarios about transferring models to another user if we want to stop being responsible for paying for the whole of our subscription. This would prohibit that. b) reverse engineer, decompile, or disassemble the Matterport Portal (or any component thereof); So ... that would be playing around with the API I guess. (c) modify or create any derivative work based on the Matterport Portal (or any component thereof) or any of the Documentation; Modify the Portal? And create a derivative work from it? Well, Showcase is in it and we put Showcase on sites -- so this is a bit vague. Our content is in it -- other than that, it's a pretty darn generic (but very nice) admin portal powered by the Django Framework with some CSS. (d) copy the Matterport Portal (or any component thereof) That's a bit vague too. The Matterport Portal is based on the undocumented but completely publicly accessible API that I assume will be the same API that Matterport will eventually document for us. Only problem with the API is that it allows us to violate all of the rules in the TOS. (e) remove any proprietary notice or label from any of the Documentation; How would we do that? (f) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Matterport Portal, or adversely affect Matterport’s right, title or interest in or to the Matterport Portal. ... except when protected by the First Amendment? You also shall not use any deep-link, page-scrape, spider, robot, crawl, index, or other automatic device, program, algorithm or technology to use, access, copy, acquire information from, generate impressions on, input information to, store information on, search on, generate searches on or monitor any portion of the Matterport Portal. And that sort of kills all 3rd party things there too... like, if I wanted to make a stats widget or something... I'd need to page scrape off the API which I guess is part of the Portal... not Showcase (which feeds off the portal)... |
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Frisco, Texas |
Metroplex360 private msg quote post Address this user | |
| Now, I will start a conversation about how Matterport's TOS violates US Copyright Law. First, I will state that this is only because I love my Camera, I love Matterport, and I want to see positive things for both Matterport as a company and the photographers who use the Matterport Device. Nothing I say here is intended to be divisive. It is my desire to find out whether or not their TOS is legal. 7.1.1 Raw Camera Imagery and Model Metadata. As between the parties to this Agreement, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own the copyrights in: (a) all imagery that You capture and generate on the Camera and App and upload to the Matterport Portal (“Raw Camera Imagery”); and (b) all model-related data that You submit to the Matterport Portal, including without limitation model names, model addresses, model descriptions, and 2-D floorplans of models (“Model Metadata”). This states that Matterport acknowledges: #1) The Matterport IS a Camera #2) We own the copyright to what we create with the Camera when we use the Matterport App. #3) We own the copyright to the imagery that we submit to the Portal. #4) We own the 2D Floorplans. #5) Matterport is calling the 2D Floorplans 'metadata' which doesn't make much sense. Notwithstanding, the foregoing, Matterport will own all digital copies of Raw Camera Imagery, and You shall only use the Raw Camera Imagery to upload it to Matterport via the App. ... wait a minute. What? Without limiting the generality of the foregoing, You may not access the Raw Camera Imagery on, or extract the Raw Camera Imagery from, the Camera or the App in any manner. ... wait a minute. What?! Matterport has no obligation to provide any Raw Camera Imagery to You either during or after the Subscription Period. Sure, that's fine. That's what we call a service. -- So recap. Matterport is a camera. We own the copyright to the images, but we are NOT allowed to access them and Matterport will own all of them. The US Government, however, says that if we own the copyright to 'copyrighted works' then we have the exclusive rights to: http://www.copyright.gov/title17/92chap1.html#106 (1) to reproduce the copyrighted work in copies or phonorecords [audio]; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; -- So if I have the copyright and under US law I'm allowed to do this, then the rest of the TOS is garbage. Sorry. -- 7.1.2 Showcase Imagery. As between the parties hereto, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own the copyrights in all Showcase Imagery, Yes, I think this is true. ... and You may transfer ownership of such copyrights to any third party without Matterport’s consent subject to the following conditions: (a) any purported transferee of such copyrights that asserts such copyrights or makes any request or demand to Matterport with respect to such copyrights shall provide sufficient written evidence of such transfer to Matterport, as determined by Matterport in its sole discretion; OK, so the real world version of this is that you can transfer your models between accounts on the Matterport platform. and (b) in connection with any such transfer, You shall assign this Agreement to such transferee, cause the transferee to assume in writing all of Your rights and obligations under this Agreement, and supply Matterport with a copy of such written assumption by the transferee. Matterport will only have the rights to use the Showcase Imagery as set forth in Section 7.3. Notwithstanding, the foregoing, Matterport will own all digital copies of Showcase Imagery There's that annoying phrase again -- that Matterport owns all digital copies. I'm having a hard time understanding how I would own the copyright, but Matterport owns all of the digital copies. If they own the digital copies, do I own the other copies? If so, what are the other copies? Do I own the analogue copies? Do I own the audible copies? , and You shall only access, use and download the Showcase Imagery as expressly permitted under this Agreement. If I own the copyright, isn't this my decision? At what point in the Terms of Service did I transfer the copyright to Matterport to allow them to set up the rules? Without limiting the generality of the foregoing, except as expressly otherwise permitted under this Agreement, You may not: (a) host any digital copy of Showcase Imagery or take other measures to make Showcase Imagery available to users directly from Your servers or any third-party servers provided on Your behalf; or (b) download any digital copy of Showcase Imagery to a local computer and redistribute such digital copy (or any modified version of such digital copy or other derivative work) for any purpose. Okay, so while we are on the topic -- what is 'Showcase Imagery'? According to their TOS, it means: “Showcase Imagery” means imagery that combines Digital Objects generated on the Matterport Portal, in whole or in part, with a Standard 3D Model. “Standard 3D Model” means a digital 3D model produced by or from any Matterport 3D Camera. “Digital Objects” are digital files or metadata such as visual files, annotations, digital media, or other information, that can be displayed in specified locations within a Standard 3D Model So ... this means ... we aren't allowed to download any of our images and we aren't allowed to redistribute them -- and we aren't allowed to make derivative works. Now - here's where the entire terms of service goes off the rails: 7.1.3 Derived Imagery. As between the parties hereto, to the extent that You have obtained all necessary consents and authorizations from third parties, You will own all derivative works, images and videos that are generated through functionalities on the Matterport Portal from Showcase Imagery, including all digital copies thereof and copyrights therein (collectively “Derived Imagery”), and You may transfer ownership of, or sell access to, any of the Derived Imagery to any third party without Matterport’s consent. Most important thing here: 'generated through functionalities of the Matterport Portal'. Okay. So let's go back ... What IS Matterport Portal? "The “Matterport Portal” means Matterport’s proprietary application (and other technologies available therein, including the 3D Showcase, 3D Workshop and the Positional Technology (each as defined below)) hosted by Matterport, with which each Matterport Pro 3D Camera (“Camera”) must communicate, via the Matterport 3D Capture application (the “App”), for the imagery generated by the Camera and related technology to be processed to produce 3D Showcases. " Okay... so I own all derivitive imagery created through 3D Showcase and Workshop, right? So, I guess I'm in the gray area by thinking that I shouldn't use ANY IMAGES I WANT right? --- Sorry. Maybe I just went off the rails too - but I'm wasting far too much time reading this Terms of Service and I think that it: #1) Violates US Copyright Law #2) Does not support Matterport's claims that we cannot use panoramas for things like MP2SV, MP2VR or Howner.com. #3) Supports our claims that we can. --- In closing. I don't like the situation that we're all in right now wherein Dan is posting the terms of service and we're all reading through it together. This should not have to happen within a community of enthusiastic photographers. We love the product, we want to foster its growth and we all pay our monthly dues. We want to work within the terms of service of Matterport, but we also would like to work within a more simple, sane and legally viable system. As a developer, I personally love roadblocks. You cannot do something that you cannot do. For instance, after Matterport shuts down access to the hidden files that I, among others, discovered, then we can no longer use them and there's no need to argue. There was never any expectation of these files sticking around and as to Matterport's official post on the removal of these files -- I can work with that, live with that, and even RESPECT that. That's fine. What I cannot do as a photographer and the owner of a Matterport Camera is read these terms of condition wherein I'm told that I own the copyright to my photos but do not have any rights to use them and accept them. The reason that I 'accept them' is because I need to use the camera that I bought and I need to continue to provide service to the clients that I have provided photography to. |
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