The following Agreement is between PixelMap (hereafter referred to as “Service Provider”) and the Client (hereafter referred to as “Client”) and is accepted & acknowledged by the Client (“Client”) during booking.
The PixelMap Services Agreement (the “Agreement”) is effective as of the acceptance of the Agreement during booking by the Client. The “Effective Date”, is entered by as per date of booking.
1. DESCRIPTION OF SERVICES.
1.1. Overview of Services: Service Provider will provide to Client the following services as outlined in the Agreement (collectively, the "Photography Services”):
A "PixelMap Space" is a 3D model hosted on the platform of Matterport, Inc. (“Matterport”) by the Service Provider that includes the following features: Inside mode, Dollhouse mode, Floor Plan mode, Property Description, Address, and Contact Information. It can be shared using a URL or embed code.
Additional PixelMap Services Available:
- Photography
- Video Walkthrough
- Virtual Staging
Capture Date(s) and Service Location(s): The Service Provider will capture imagery for the Photography Services (“Capture Services”) as per the date(s) at the location(s) (“Service Location(s)”) submitted by the Client during booking.
1.2. Delivery: The Service Provider will provide a URL and/or embed code for the completed PixelMap Space(s). The Client understands and agrees that all PixelMap Spaces are hosted solely on Matterport’s platform, and Client will not receive any digital assets for PixelMap Spaces. Service Provider will make every effort to make all of the foregoing Photography Services available to the Client within the days as communicated with the Client after the date of payment. The Client understands and agrees that the stipulated time frame is solely an estimate, and may be exceeded for any reason. In the event that payment is not completed, the Service Provider reserves the right to withhold any Service for any length of time until the Client has completed payment.
1.3. Hosting Term: Service Provider agrees to process and host the created PixelMap Space(s) on the Matterport platform for a period of 6 months starting from the Capture Date(s). The Client can choose to extend the hosting in blocks of 6 months for an additional fee, at any point in time up until the day of expiry, after which the Space(s) shall be subject to a re-activation fee should the Client require hosting.
1.4. Service Location Preparation: the Client is advised to prepare the Service Location in advance of Capture Services, including without limitation:
-Removing confidential info, personal photos, and clutter/unwanted items
-Adjusting furniture and/or decor to desired position
-Informing the Service Provider of any rooms or areas that should be excluded from Capture Services
-Ensuring the Service Location is free of moving persons, pets, or objects
The Service Provider shall not be responsible for any lack of preparation in regards to the aforementioned points or the untidiness of any Service Location or for small alignment issues, stitching imperfections, mirror, window, glass, and reflective views. The Client shall further ensure that the Service Location is accessible upon the day of Capture Service for the duration of the Capture Service as defined in the booking.
1.5. Weather: Capture Services shall proceed regardless of weather conditions on the Capture Date. In the event that areas of the Service Location are inaccessible to the Service Provider due to poor weather conditions, such areas may be excluded from the Space. Any request be the Client to postpone the booking due to weather shall be subject to a rescheduling fee.
1.6. Cooperation: The Client will cooperate in a reasonable and timely manner in connection with Service Provider’s performance of the Capture Services and provision of the Photography Services.
2. FEES AND PAYMENT; CANCELLATION AND RESCHEDULING POLICY.
2.1. Fees: The Client agrees to pay Service Provider total fees as per the accepted Agreement for the Photography Services and Capture Services. Such fees will be itemized in the booking process that is part of this Agreement provided to the Client.
2.2. Invoice and Payment of Balance Due: Following completion of the Capture Services, the Client shall pay the Service Provider, the fees owed upon receipt via online invoice. In the event that Client fails to pay any amount when due, without limiting any other remedies available to the Service Provider, the Service Provider will have the right to suspend all applicable links, providing the Photography Services to the Client until such overdue amount is received.
2.3. Cancellation and Rescheduling Policy: A minimum of 24 hours prior written notice will be required for the Client’s cancellation of this Agreement or rescheduling of the Capture Service date. In the event that the Client cancels this Agreement with less than 24 hours notice prior to the agreed upon Capture Service date, the Client will be responsible for payment of a cancellation fee of $50. In the event that the Client reschedules the Capture Service date with less than 24 hours notice prior to the agreed upon Capture Service date, the Client shall pay Service Provider a rescheduling fee of $25.00.
3. PROPRIETARY RIGHTS AND LICENSES.
3.1. Ownership: Service Provider and its licensors own all right, title and interest (including all associated intellectual property rights) in and to: (a) all Photography Services and any technology embodied therein; and (b) any and all look and feel, improvements, updates, modifications, translations, copies, compilations and derivative works related to any of the foregoing. All rights in the foregoing not expressly granted to the Client are reserved by Service Provider and Service Provider’s licensors, and the Client shall make no use of the foregoing except as expressly provided herein. The Client acknowledges that, subject to Section 3.4, Service Provider will have the right to use and distribute any Photography services in Service Provider’s sole discretion.
3.2. Service Provider License to Client: Service Provider hereby grants the Client a non-exclusive, non-transferable, non-sublicensable license, during the Term, to: (a) use and distribute URLs and embed codes linking to the PixelMap Space(s) hosted on the Matterport Platform; and (b) to use and distribute PixelMap add-ons, including but not limited to photos and Video Walkthroughs.
3.3. Restrictions: The Client shall not: (i) disable or modify any hyperlinks contained in any Photography Services; (ii) alter, remove or destroy any attribution, proprietary markings (e.g., copyright and trademark markings) or confidential legends placed upon or contained within the Photography Services; (iii) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of any software underlying the Photography Services; (iv) distribute, in conjunction with any Photography Services, any content that contains or promotes fraudulent, deceptive or illegal activities, pornography, excessive violence, “hate speech”, malicious code or deceptive advertising; (v) access or use any API provided by Service Provider or Matterport without the prior written authorization of Service Provider & Matterport, or otherwise access PixelMap Space (and any portion thereof) through any means other than available end-user functionality; or (vi) modify or create any derivative work based on the Photography Services (or any component thereof).
3.4. Takedown Service: During the Term, the Client can request at any time that Service Provider designate any PixelMap Space and other hosted Photography Services as public or private. Any PixelMap Space or other hosted Photography Service designated as private will be un-accessible and unviewable by the public. Service Provider will promptly comply with such request.
4. NO AFFILIATION WITH MATTERPORT. the Client acknowledges that: (a) Service Provider is an independent provider of the Capture Services and is not a contractor, employee or agent of Matterport; and (b) Service Provider is making the Photography Services available to the Client under a license between Matterport and Service Provider.
5. WARRANTY; DISCLAIMER. Service Provider represents that it shall perform its obligations under this Agreement in a timely and workmanlike manner, consistent with generally acceptable industry standards. In the event of any breach of the foregoing warranty, as the Client's sole and exclusive remedy, Service Provider shall use commercially reasonable efforts to re-perform its obligations promptly in a manner that cures such breach. EXCEPT FOR THE FOREGOING WARRANTY, THE PHOTOGRAPHY SERVICES AND CAPTURE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. SERVICE PROVIDER 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, WITH RESPECT TO THE PHOTOGRAPHY SERVICES AND CAPTURE SERVICES. SERVICE PROVIDER DOES NOT REPRESENT OR WARRANT THAT PHOTOGRAPHY SERVICES OR CAPTURE SERVICES WILL MEET THE CLIENT'S NEEDS OR REQUIREMENTS, THAT THE PHOTOGRAPHY SERVICES AND CAPTURE SERVICES WILL BE ACCURATE OR RELIABLE, THAT USE OF THE PHOTOGRAPHY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE PHOTOGRAPHY SERVICES WILL BE CORRECTED. IN ADDITION, SERVICE PROVIDER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING: (A) THE APPROPRIATENESS OF THE PHOTOGRAPHY SERVICES FOR USE IN FOREIGN JURISDICTIONS; OR (B) THE TIMING OF PHOTOGRAPHY SERVICES PROVIDED TO THE CLIENT. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to the Client. Nothing in this Agreement disclaims any implied warranty that cannot be disclaimed under applicable law.
6. INDEMNIFICATION. The Client, at Client’s own expense, will indemnify, defend and hold harmless Service Provider, its corporate affiliates and licensors, and their respective officers, directors, employees, representatives and agents (each a “Service Provider Indemnitee”) from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising therefrom (each a “Claim”), brought by any third party against a Service Provider Indemnitee to the extent that such Claim is based on, or arises out of: (a) a breach, or potential breach, of any of Client’s obligations under this Agreement; (b) Client’s use of the Photography Services; (c) any allegation that the Client has not obtained all consents, approvals, licenses, and permissions necessary for the Client, Service Provider or their respective subcontractors, as applicable, to have access to a Service Location captured in any Photography Service and/or to capture and use imagery of such Service Location; or (d) any alleged or actual fraud, gross negligence or willful misconduct of the Client or Clients’s subcontractors or agents. In the event of a claim in respect of which a Service Provider Indemnitee seeks indemnification from the Client under this Section, the Service Provider Indemnitee will promptly notify the Client in writing of the claim, cooperate with the Client in defending or settling the claim at the Client's expense, and allow the Client to control the defense and settlement of the claim, including the selection of attorneys; provided, however, that the Client shall not settle any claim unless such settlement completely and forever releases the Service Provider Indemnitee from all liability with respect to such claim or unless the Service Provider Indemnitee consents to such settlement in writing.
7. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, THE CLIENT’S BREACH OF SECTION 3, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES; AND (b) IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY, ITS AFFILIATES OR ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO SERVICE PROVIDER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. NEITHER SERVICE PROVIDER NOR MATTERPORT SHALL BE RESPONSIBLE OR LIABLE FOR ANY PERSONAL OR CONFIDENTIAL INFORMATION CAPTURED OR DISPLAYED IN ANY PHOTOGRAPHY SERVICE. THE CLIENT IS RESPONSIBLE FOR PREPARATION OF EACH SERVICE LOCATION, AND THE CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY OBJECTS OR PEOPLE DISPLAYED IN ANY PHOTOGRAPHY SERVICES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.
8. TERM, TERMINATION AND EFFECT OF TERMINATION.
8.1. Term. This Agreement will take effect on the Effective Date and, unless earlier terminated in accordance with this Agreement, will remain in effect until all of the Capture Services and Photography Services have been completed (“Term”).
8.2. Termination for Breach or Bankruptcy. Either Party may terminate this Agreement immediately by written notice to the other Party upon the occurrence of any of the following events: (a) the other Party commits a material breach of this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party; or (b) the other Party experiences an insolvency or bankruptcy or its property becomes subject to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
8.3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (a) The Client will immediately cease all access to and use of all Photography Services, and the license granted to the Client with respect to the Photography Services shall immediately terminate; (b) unless the Client is terminating the Agreement for cause pursuant to Section 8.2, the Client shall, within thirty (30) days of expiration or termination, pay to Service Provider all amounts then accrued and payable under this Agreement; (c) unless Service Provider is terminating the Agreement for cause pursuant to Section 8.2, Service Provider shall, within thirty (30) days of expiration or termination, refund to the Client the amount of any unused fees prepaid by the Client. Neither party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement shall not release either party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination. Termination or expiration of this Agreement hereunder by either party shall not limit either party from pursuing any other remedies available to it, including injunctive relief. In the event of a claim of infringement or violation of third-party proprietary rights relating to the Photography Services or Capture Services, the Parties may mutually agree to terminate certain rights granted hereunder.
