REAL 3D TOURS
TERMS AND CONDITIONS
“You” “Your”means the customer entering into a Service Contract with Real 3D Tours, all of your agents, affiliates, and employees.
“Service Contract” means the contract for services entered into between You and Real 3D Tours
“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 or mobile application.
“Positional Technology” means Matterport’s proprietary technology that specifies the location of Digital Objects. “Digital Objects” means digital files or metadata such as visual files, annotations, digital media, or other information, which 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.
As a customer of Real 3D Tours, you will be considered an authorized user of Matterport Inc. for all intents and purposes. As an authorized user you must comply with all the applicable terms and conditions of the Matterport Portal terms and conditions (attach hyper link here). Any breach of the Matterport Agreement will be considered a breach by You, and you will indemnify Real 3D Tours for the resulting breach.
SHOWCASE IMAGERY COPYRIGHTS.
Real 3D Tours will own the copyrights in all Showcase Imagery. Matterport Inc. will own all digital copies of Showcase Imagery, and You shall only access the Imagery as permitted by Real 3D Tours and/ or Matterport Inc.
PERMISSION TO USE
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 of fly-through video file that is captured through functionality provided on the Matterport Portal and/or through third-party screen capture software; (c) on an .OBJ filed exported in accordance with Section 7.7 of the Matterport Agreement (include hyperlink here); 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.
STORAGE; SECURITY; TRANSMISSION
You acknowledge that certain servers and databases are maintained on behalf of Real 3D Tours, 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 the expiration of the time period set forth in the Service Contract or the Matterport Agreement. 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 also acknowledge that the Showcase Imagery transmitted by Real 3D Tours and/ or Matterport Inc.to and from You and Authorized 3rd parties via the internet and other technologies, and that such transmissions cannot be made to be 100% secure or free from risk of compromise.
TECHNICAL SUPPORT SERVICES. Real 3D Tours, is a licensed user of Matterport, Inc. 3D technology and is has access to
Matterport’s portal. Real 3D Tours will maintain the required licenses with Matterport, Inc. for the duration of this Contract. Real 3D Tours will work with Matterport, Inc. to ensure that Customer’s 3D showcase is operating properly, to the extent that Real 3D Tours is performing the Services above. Technical support for Matterport technology, including
Matterport 3D showcase will be provided by Matterport. Matterport will use commercially reasonable efforts to keep the Matterport Portal operational, exclusive of downtime necessary for scheduled and emergency maintenance.
USAGE DATA AND DERIVED DATA.
You acknowledge that Real 3D Tours and/ or Matterport may aggregate some of the data collected with similar information collected from other Matterport 3D Vision Systems users, and may share that information with third parties; provided however, that any such information shared will not identify You individually.
Through Your use of the Matterport Portal, You consent to the collection and use of information Matterport, its service providers, and Real 3D Tours collect from You, including the transfer of this information within and between the United States and/ or other countries for storage, processing, and use my Real 3D Tours and Matterport, its affiliates and service providers, and third parties with which it has strategic relationships. By providing Your mobile number, You expressly consent to receive direct dial calls, autodialed calls, and prerecorded calls, and text messages from Real 3D Tours and/or Matterport relating to our product and services at that number.
NO WARRANTY & LIMITED WARRANTY
THE MATTERPORT PORTAL 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, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MATTERPORT DOES NOT REPRESENT OR WARRANT THAT THE MATTERPORT PORTAL WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE MATTERPORT PORTAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE MATTERPORT PORTAL WILL BE CORRECTED.
Real 3D Tours shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Real 3D Tours community and region, and will provide a standard of care equal to, or superior to, case used by service providers similar to Real 3D Tours on similar projects. Real 3D Tours provides NO WARRANTY that the Matterport portal will be operational and will be able to satisfy Customer’s needs under this Contract. This includes, but is not limited to, that the use of the Matterport portal will be uninterrupted, timely, secure, free from error, or that any defects in the Matterport portal will be corrected.
WORK PRODUCT OWNERSHIP.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by Real 3D Tours in connection with the Services will be the exclusive property of Real 3D Tours, and/or Matterport, Inc.. Upon request, Customer will have executed, all documents necessary to confirm or perfect the exclusive ownership of Real 3D Tours to the
Real 3D Tours, and its employees, agents, or representatives will not at any time or in any matter, either directly or indirectly, use for the personal benefit of Real 3D Tours, or divulge disclose or communicate in any manner, any information that is proprietary to Customer. Real 3D Tours and its employees, agents and representatives will protect such
information and treat it as strictly confidential. This provision will continue to be effective after termination of this Contract.
Real 3D Tours, and its employees, agents, or representatives may disclose Customers information as is necessary to fulfill the terms of this Contract and/ or to fully perform under this contract.
Any oral or written waiver by Customer of these confidentiality obligations which allows Real 3D Tours to disclose Customer’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect or all other occurrences.
The occurrence of any of the following shall constitute a material default under this Contract:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Contract.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have ten days (10) from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
If performance of this Contract of any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages, or other labor disputes, or supplier failures or service providers (including Matterport, Inc.). The
excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Contract shall be resolved by binding Arbitration in accordance with the then- current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Contract. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Contract or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any Texas court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Contract.
This Contract shall be construed in accordance with the laws of the State of Texas
Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
ATTORNEY’S FEES TO PREVAILING PARTY.
In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in trial court and on appeal.
CONSTRUCTION AND INTERPRETATION.
The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties mutual effort.
You acknowledge that by providing You access to the Matterport Portal, Real 3D Tours and/ or Matterport does not assume any responsibility or liability for any risks associated with Your business. You shall defend, indemnify and hold harmless Real 3D Tours and/ or Matterport, its affiliates, and their respective officers, directors, employees, and representatives from and against all claims by any third party arising out of or relating in any way to the conduct of Your business or the use of or inability to use the Matterport 3D Vision System, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim report of which Real 3D Tours seeks indemnification from you, Real 3D Tours 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 Real 3D Tours party from all liability with respect to such claim or unless the indemnified Real 3D Tours party consents to such settlement in writing.
You may terminate this Agreement and Service Contract at any time upon 30 days prior written notice to Real 3D Tours. Real 3D Tours may terminate this Agreement and Service Contract at any time if You have failed to pay any fee when due, Real 3D Tours may also terminate this agreement prior to the Service Contract date if You have committed any other material breach of this Agreement or Service Contract and failed to cure the material breach within 10 days after receiving written notice of the breach from Real 3D Tours.
This Agreement shall not be construed against either party. If any term, provision or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
BY SIGNING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE REAL 3D TOURS WEBSITE OR 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 REAL 3D TOURS WEBSITE OR PORTAL, OR THE MATTERPORT WEBSITE OR PORTAL.
Real 3D Tours reserves the right to revise any portion of this Contract in its sole discretion at any time and without prior notice to Customer by updating this posting, such changes to be effective prospectively. Thus, Customer should visit the Real 3D Tours web page at www.real3dtours.com for changes. If Customer disagrees with any changes to this Contract, Customers sole remedy is to discontinue Customer’s use of the Service.
Customer’s continued use of the Service after a change has been posted constitutes Customer’s acceptance of the change thereafter.
IN NO EVENT WILL REAL 3D TOURS OR MATTERPORT OR ITS AFFIALIATES OR LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS; GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, 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 REAL 3D TOURS OR MATTERPORT AND ITS AFFIALIATES AND LICENSORS UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO REAL 3D TOURS BY YOU UNDER THESERVICE CONTRACT.