“You” and “Your” means the customer entering into a Service Contract with dkPhotoLab, all of your agents, affiliates, and employees.
“Service Contract” means the contract for services entered into between You and dkPhotoLab.
“3D Showcase” means an application, using the Positional Technology and WebGL or other technologies as specified by Matterport Inc. 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 Inc.’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 Inc.’s portal, in whole or in part, with a standard 3D model.
As a customer of dkPhotoLab 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 (which can be found at this website https://matterport.com/legal/cloud-subscription-agreement/. Any breach of the Matterport terms and conditions will be considered a breach by You, and you will indemnify dkPhotoLab for the resulting breach.
dkPhotoLab will own the copyrights in all Showcase Imagery. Matterport Inc. will own all digital copies of Showcase Imagery, and You shall only access the Showcase Imagery as permitted by dkPhotoLab and/ or Matterport Inc.
STORAGE and TRANSMISSION
You acknowledge that certain servers and databases are maintained on behalf of dkPhotoLab, by or on behalf of Matterport to store Showcase 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. You acknowledge that no security measure can guarantee against compromise and that the Showcase Imagery transmitted by dkPhotoLab to and from You via the internet and other technologies cannot be made to be 100% secure or free from risk of compromise.
USAGE DATA AND DERIVED DATA
You acknowledge that dkPhotoLab 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.
dkPhotoLab provides NO WARRANTY that the Matterport portal will be operational and will be able to satisfy Customer’s needs under the Service 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 dkPhotoLab in connection with the services provided under the Service Agreement will be the exclusive property of dkPhotoLab. Upon request, Customer will have executed, all documents necessary to confirm or perfect the exclusive ownership by dkPhotoLab of the Work Product.
Unless otherwise agreed with the Customer dkPhotoLab, 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 dkPhotoLab, or divulge disclose or communicate in any manner, any information that is proprietary to Customer, unless required by law.
The occurrence of any of the following shall constitute a material default under the Service Contract:
1. The failure to make a required payment when due.
2. The insolvency or bankruptcy of either party.
3. The failure to make available or deliver the Services in the time and manner provided for in the Service 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 party unable to carry its obligations 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.
These terms and conditions shall be construed in accordance with English laws.
WAIVER OF CONTRACTUAL RIGHT
The failure of either party to enforce any provision of the Service Contract or these Terms and Conditions 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.
You acknowledge that by providing You access to the Matterport Portal, dkPhotoLab does not assume any responsibility or liability for any risks associated with Your business. You shall defend, indemnify and hold harmless dkPhotoLab, 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.
You may terminate the Service Contract at any time upon 30 days prior written notice to dkPhotoLab. dkPhotoLab may terminate the Service Contract at any time if You have failed to pay any fee when due. dkPhotoLab may also terminate this agreement prior to the Service Contract date if You have committed any other material breach of these Terms and Conditions or Service Contract and failed to cure the material breach within 10 days after receiving written notice of the breach from dkPhotoLab.
If any term, provision or condition of these Terms and Conditions 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 THE SERVICE AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE dkPhotoLab WEBSITE OR PORTAL OR SERVICES, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN HEREIN AND IN THE SERVICE AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/ OR NOTICES, YOU MAY NOT ACCESS OR USE dkPhotoLab WEBSITE OR PORTAL OR SERVICES, OR THE MATTERPORT WEBSITE OR PORTAL.
dkPhotoLab reserves the right to revise any of these Terms and Conditions 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 dkPhotoLab web page for changes. If Customer disagrees with any changes to these Terms and Conditions, 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 dkPhotoLab OR ITS AFFIALIATES 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. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF dkPhotoLab AND ITS AFFIALIATES UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND LIABILITY, EXCEED THE AMOUNTS PAID TO dkPhotoLab BY YOU UNDER THE SERVICE CONTRACT.
TECHNICAL SUPPORT SERVICES
dkPhotoLab is a licensed user of Matterport, Inc. 3D technology and is has access to Matterport’s portal. dkPhotoLab will maintain the required licenses with Matterport, Inc. for the duration of the Service Contract. dkPhotoLab will work with Matterport, Inc. to ensure that Customer’s 3D showcase is operating properly, to the extent that dkPhotoLab is performing the Services set out in the Service Contract.