TERMS AND CONDITIONS FOR OverTheEdge 3D – BUSINESS CUSTOMERS
1.1 Are you a business? These terms assume that you are buying the service(s) from us in connection with your trade, business, craft or profession. If this is not the case, it is your responsibility to inform us immediately prior to acceptance of your order.
1.2 What these terms cover. These are the terms and conditions on which we supply the service(s) to you.
1.3 Why you should read them. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will provide the service(s) to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms or require any changes, please contact us to discuss.
1.4 Entire Agreement. These terms constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1 Who are we. We are Captivate 3D, our trading address is 49, Sandoe Way, Exeter, Devon, EX1 3WH.
2.2 What we do. We are a member of the Matterport Service Provider Network and offer services to create three-dimensional representations of real-world locations through imagery and data collected from our own Matterport Pro2 3D Camera. We also hold a licence to use the Matterport 3D Media Platform to capture, edit and share 3D models of real-world places (Matterport Spaces) and a subscription to the Matterport Cloud to process data into interactive 3D environments, hosting/editing/organizing Matterport Spaces and sharing them with the world.
2.3 Matterport Inc. Details. Matterport Inc. are registered at 352 East Java Drive, Sunnyvale, CA, 94089, USA
2.4 How to contact us. You can contact us by telephoning on +44 (0)7957 855224 or by writing to us at firstname.lastname@example.org or 49, Sandoe Way, Exeter, Devon, EX1 3WH.
2.5. How we may contact you. If we have to contact you, we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
2.6. “Writing” includes emails. When we use the word “writing” or “written” in these terms, this includes emails.
3. OUR CONTRACT WITH YOU
3.1 How we will accept your order. Our acceptance of your order will take place when:
(a ) you have paid the Deposit in accordance with 17.2 (a); and
(b) we provide you with confirmation in writing (the Order Confirmation), at which point a contract will come into existence between you and us.
4. PROVIDING THE SERVICE(S)
4.1 When we will provide the service(s). We will begin the service(s) on the date set out in the Order Confirmation (Service Commencement) until either the service(s) are completed, or you end the contract as described in clause 14. or we end the contract by written notice to you as described in clause 15.
4.2 Reasonable care and skill. We warrant to you that the services will be provided using reasonable care and skill.
4.3 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the services by such dates will not give you the right to terminate the contract.
4.4 We are not responsible for delays outside our control. If our supply of the service(s) is delayed by an event outside our control, then we will contact you as soon as possible to let you know and we will take steps to minimize the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is risk of substantial delay you may contact us to end the contract and receive a refund for any services you have paid for but not received.
4.5 Restrictions to the services. We are not able to provide or continue with any service(s) where, in our opinion and at our absolute discretion:
(a) any content or imagery would be subject to copyright, unless prior permission has been given by the rightful owner;
(b) confidential or private information of any third party (including private information displayed in any physical location) would be captured, collected or used by us during performance of the service(s), unless express consent of such third party has been given;
(c) we would be sending, posting, uploading or otherwise transmitting to or through any content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful or otherwise
objectionable would be captured or used by us during performance of the service(s);
(d) content infringes or misappropriates any third-party intellectual property right or is invasive of any privacy or publicity right;
(e) performance of the service(s) would result in illegal activity; or
(f) such activity could damage, disable, overburden or impair our systems or any system, software or product provided to us by Matterport Inc;
(g) such activity could cause reputational damage to either Captivate 3D or Matterport Inc;
or would assist or permit any persons in engaging in any of the activities described above.
5. OUR OBLIGATIONS UNDER THE CONTRACT
5.1 We shall maintain in force at least the following insurances policies with reputable insurance companies to cover its relevant potential business liabilities in connection with this agreement:
(a) a public liability insurance policy with a limit of at least £1,000,000 per claim and
(d) employer’s liability insurance with a limit of at least £10,000,000 for claims arising from a single event or a series of related events in a single calendar year.
5.2 We shall obtain and maintain in force all licences, subscriptions, permissions, authorisations, consents and permits needed to perform the services in accordance with the contract, including, but not limited to the Matterport 3D Media Platform, Matterport Cloud.
6. YOUR OBLIGATIONS UNDER THE CONTRACT
6.1 It is your responsibility to ensure that:
(a) the terms of your order are complete and correct
(b) you co-operate with us in all matters relating to the service(s)
(c) you do not breach the confines of the authority granted to you at clause 8.1;
(d) you do not take any step that would place the contract within any restriction listed at clause 4.5;
(e) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
(f) you provide us with such information and materials we may reasonably require in order to supply the service(s), and ensure that such information is complete and accurate in all material aspects;
(g) you prepare your premises for the supply of the service(s) including:
- ensuring that the space is free from obstacles; and
- ensuring that the space is clean and tidy;
(h) you obtain and maintain all necessary licences, permissions and consents which may be required for the service(s) before the date on which the service(s) are to start; and
(i) you comply with all applicable laws, including health and safety laws and make us aware of any health and safety or security matters affecting the premises when attending to provide the service(s).
6.2 What will happen if you do not give required information to us. If you do not give us information pursuant to 6.1(f), or if you give us incomplete or incorrect information, we may either end the contract (and clause 15.2 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the service(s) late or not supplying any part of them, if this is caused by you not giving us the information we need within a reasonable time of us asking for it.
6.3 If you do not allow us access to provide the service(s). If you do not allow us access to your premises to perform the service(s) as arranged (and you do not have a good reason for this) we may charge you additional costs incurred by us as a result. If, despite our reasonable efforts, we are unable to contact you or re-arrange access to your property we may end the contract and clause 15.2 will apply.
7.1 Ownership of Data. We will own any imagery that is captured and generated on the camera and uploaded to the Matterport Cloud (the Raw Sensor Data) and Matterport Inc. will own all digital data used to develop the Matterport Space.
8.1 During the contract period, as an authorised person of captivate 3D, you are granted authority (and encouraged) to do any of the following on a revocable, non-exclusive, non-transferable basis:
(a) Use the functionality of the Matterport website and view any content available on the Matterport website through the functionality include in the website;
(b) Link to any page of the Matterport website, including on any of your websites or blogs or through any of your social networking outlets;
(c) Utilize the ‘screenshot’ functionality of the Matterport Viewer, to the extent it is available, to create copies of the images as they are displayed on the screen, and post or otherwise share those images – without removing any Matterport logo or watermark or making any other modification to the image – via any of your websites or blogs or through any of your social networking outlets;
(d) Links to any Matterport Space available on the Matterport website;
(e) Display any such Matterport Space on your website by embedding the Matterport Viewer; and
(f) Display the 3D model within mobile Matterport Viewer.
8.2 Editing Permissions of Data. By entering into the contract, you acknowledge that Captivate 3D and Matterport Inc. hold the exclusive rights to edit, copy, alter, add to, take from and adapt any data used in connection with the service(s). Permissions to edit will not be granted to you under the contract.
8.3 Use of Data. By entering into the contract, you acknowledge that we have the right to display any Matterport Space on our website, social media and other marketing outlets at any time.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 In this clause ‘Intellectual Property Rights’ shall mean patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be grateful for and be granted, renewals or extensions of, and rights to claim property from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.
9.2 All Intellectual Property Rights in or arising out of or in connection with the service(s) (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
9.3 By entering into this contract you will grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the contract for the purpose of providing the service(s) to you.
11. Your right to make changes. If you wish to make a change to the service(s) you have ordered, please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the service(s), the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to end the contract (see clause 14, Your rights to end the contract).
12. Our rights to make changes. We may change the service(s):
(a) to reflect changes in relevant laws and regulatory requirements; and
(b) to implement minor technical adjustments and improvements, for example to address a security threat.
13. CONTRACT SUSPENSION
13.1 Reasons we may suspend the supply of service(s) to you. We may have to suspend the supply of service(s) to:
(a) deal with technical problems or make minor technical changes;
(b )update the service(s) to reflect changes in relevant laws and regulatory requirements;
(c) make changes to the service(s) as requested by you or notified by us to you (see clause 12.).
13.2 We may also suspend supply of the service(s) if you do not pay. If you do not pay us for the service(s) when you are supposed to (see clause 17.2) and you still do not make payment within 7 days of us reminding you that payment is due, we may suspend supply of the service(s) until you have paid us the outstanding amounts. We will contact you to tell you we are suspending supply of the service(s). We will not suspend the service(s) where you dispute the unpaid invoice (see clause 17.5). We will not charge you for the service(s) during the period for which they are suspended. As well as suspending the service(s) we can also charge you interest on your overdue payments (see clause 17.4).
13.3 Your rights if we suspend the supply of service(s). We will contact you in advance to tell you we will be suspending supply of the service(s), unless the problem is urgent or an emergency. If we have to suspend the service(s) for longer than 10 business days in any 12-month period, we will adjust the price so that you do not pay for the service(s) while they are suspended. You may contact us to end the contract for a service(s) if we suspend it, or tell you we are going to suspend it, in each case for a period of more than 10 business days and we will refund any sums you have paid in advance for the service(s) in respect of the period after you end the contract.
14. YOUR RIGHTS TO END THE CONTRACT
14.1 You can always end your contract with us. Your rights when you end the contract will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the contract:
(a) If you want to end the contract because of something we have done or have told you we are going to do, see clause 14.2;
(b) In all other cases see clause 14.3 and clause 14.4.
14.2 Ending the contract because of something we have done or are going to do. If you are ending a contract for a reason set out at (a) to (c) below the contract will end immediately and we will refund you in full for any service which has not been provided and you may also be entitled to compensation. The reasons are:
(a) There is risk that supply of the service(s) may be significantly delayed because of events outside our control;
(b) We may have suspended supply of the service(s) for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than 10 business days; or
(c) you have a legal right to end the contract because of something we have done wrong.
14.3 Ending the contract where we are not at fault and there is no right to change your mind prior to Service Commencement. Even if we are not at fault you can still end the contract before it is completed, but you may have to pay us compensation. A contract for services is completed when we have finished providing the services and you have paid for them. If you want to end the contract before it is completed where we are not at fault, just contact us to let us know. The contract will end immediately and we will refund any sums paid by you for any service not provided but we may deduct from that a refund charge of up to 25% of the total given in the Order Confirmation as compensation for the net costs we will incur as a result of your doing so.
14.4 Ending the contract where we are not at fault and there is no right to change your mind after Service Commencement. Even if we are not at fault, you can still end the contract before it is completed. A contract for service(s) is completed when we have finished providing the service(s) and you have paid for them. If you want to end the contract in these circumstances, just contact us to let us know. The contract will end on:
|One-off service(s) –||The day you contact us|
|Monthly retainer –||One month following the day you contact us|
|Quarterly retainer –||Three months following the day you contact us|
|Annual retainer –||Six months following the day you contact us|
Any Deposit you have paid will be non-refundable. We will only charge you for supplying the service(s) up to the contract end date and will refund any sums you have paid in advance for the supply of the service(s) after the contract end date.
14.5 How to end the contract with us. To end the contract with us, please let us know by calling us on +44 (0)7957 855224 or email us at email@example.com Please provide your name and position, the business name and address, details of the order and, where available, your phone number and email address.
14.6 How we will refund you. If you are entitled to a refund under these terms, we will refund you the price you paid for the service(s), by the method you used for payment. However, we may make deductions from the price, as described below.
14.7 When your refund will be made. We will make any refunds due to you as soon as possible.
15. OUR RIGHTS TO END THE CONTRACT
15.1 We may end the contract if you break it. We may end the contract for a service at any time by writing to you if:
(a) you do not make any payments to us when it is due, and you still do not make payment within 7 days of us reminding (b) you that payment is due;
you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the service(s), for example, permission of the leadership or freeholder to take images;
(c) you do not, within a reasonable time, allow us access to (d) your premises to supply the service(s);
(e) you have breached an obligation under clause 6.1; or
performance of the contract would result in a breach of a restriction listed at clause 7.1 above.
15.2 You must compensate us if you break the contract. If we end the contract in the situations set out in clause 15.1 any money you have paid in advance for the service(s) will be non-refundable and reserve the right to charge you compensation of any amount not exceeding the total price due under the contract.
16. IF THERE IS A PROBLEM WITH THE SERVICE(S)
16.1 How to tell us about problems. If you have any questions or complaints about the service(s), please contact us by telephone on +44 (0)7957 855224 or by writing to us at firstname.lastname@example.org or 49, Sandoe Way, Exeter, Devon, EX1 3WH.
17. PRICE AND PAYMENT
17.1 Where to find the price for the service(s). The price of the service(s) will be the price indicated on the Order Confirmation.
17.2 When you must pay and how you must pay.
(a) One-off Service(s). You must make a deposit of 50% of the quoted price of the service(s) upon booking (the Deposit). We will invoice you for the balance of the price of the service(s) when we have completed them (excluding the completion of Matterport Hosting). You must pay each invoice within 7 calendar days after the date of the invoice.
(b) Ongoing Retainer Arrangements. We will invoice you the agreed retainer amount periodically in accordance with the arrangements detailed in the Order Confirmation. You must pay each invoice within 7 calendar days after the date of the invoice.
(c) Matterport Hosting. Where applicable, Annual Matterport Hosting will be invoiced in advance upon completion of all other listed service(s) outlined in the Order Confirmation.
17.3 Our right to set-off. You must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
17.4 We can charge interest if you pay late. If you do not make any payments to us by the due date, we may charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of Barclays PLC from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
17.5 What to do if you think an invoice is wrong. If you think an invoice is wrong, please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
18. OUR REPSONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU.
18.1 When we are liable for damage to your property. If we are providing the service(s) in your property, we will make good any damage to your property caused by us while doing so. However, we are not responsible for the cost of repairing any pre-existing faults or damage to your property that we discover while providing the service(s).
19. LIMITATION OF LIABILITY
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
19.1 Nothing in the Contract limits or excludes our liability for:
(a) death or personal injury caused by our negligence of our employees, agents or subcontractors;
(b )fraud or fraudulent misrepresentation; or
(c) breach of the terms by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
19.2 Subject to clause 19.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
19.3 Subject to clause 19.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the amount due by you to us under the contract.
19.4 Except as expressly stated in these terms, we do not give any representations, warranties or undertakings in relation to the service(s). Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, including without limitation the terms implied by sections 3 to 5 of the supply of Goods and Services Act 1982, by common law or otherwise are, to the fullest extent permitted by law, excluded from the contract.
19.5 This clause 19 will survive termination of this contract.
20.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 20.2.
20.2 We each may disclose the other’s confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purpose of carrying out our respective obligations under the contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 20; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
20.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the contract.
21. HOW WE MAY USE YOUR PERSONAL INFORMATION
21.1 How we will use your personal information. We will use the personal information you provide to us:
(a) to supply the service(s) to you
(b) to process your payments made under the contract; and
(c) if you agreed to this during the order process, to give you information about similar service(s) that we provide, but you may stop receiving this at any time by contacting us.
21.2 We will only give your personal information to other third parties where the law either requires or allows us to do so.
22. OTHER IMPORTANT TERMS
22.1 Force Majeure. Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under the contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
22.2 We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
22.3 Notices. Any notice or other communication:
(a) given to a party under or in connection with the contract shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified by each of the parties at the outset of the contract.
(b) Shall be deemed to have been received:
- If delivered by hand, on signature of a delivery receipt; and
- If sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second business day after posting; and
- If sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other document in any legal action or, where applicable, any other method of dispute resolution.
22.4 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing. We may not agree if we consider the transfer to be unreasonable, unreliable or otherwise placing the contract at risk.
22.5 Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms, except as explained in clause 22.4 in respect of our guarantee.
22.6 Variation. Except as set out in these terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.7 If a court finds part of this content illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
22.8 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you, but we continue to provide the service(s), we can still require you to make the payment at a later date.
22.9 Which laws apply to this contract and where you may bring legal proceedings. Any dispute or claim arising out of or in connection with a contract between us or its subject matter or information (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.