808 VIRTUALLY, LLC – Terms and Conditions
The following terms and conditions are applicable to purchases from this website.
This Agreement (the “Agreement”), effective as of the date of acceptance (the “Effective Date”) by “You” (“Customer”), is entered by and between 808 Virtually, LLC (“808 Virtually”), a Matterport Service Partner (“MSP”), with a business address at 75-634 Opikanalani Place, Kona, Hawaii 96740, and Customer.
1. DESCRIPTION OF SERVICES.
1.1. Overview of Services. 808 Virtually will provide to Customer the following services:
[check all that apply]
[ ] DSLR Photography for MLS [Qty: ____ ]
[ ] DSLR Photography for Publication (Hi-Res) [Qty: ____ ]
[ ] 360 Photo-spheres with DSLR Camera [Qty: ____ ]
[ ] Matterport Model(s) [Qty: ____ ]
[ ] Aerial Photography [Qty: ____ ]
[ ] 360 Aerial Photo-spheres [Qty: ____ ]
[ ] Google Street View Publishing [Qty: ____ ]
“DSLR Photography” means Digital Single Lens Reflex Photography, using professional quality camera and lenses.
A “Matterport Space” is a 3D model hosted on the platform of Matterport, Inc. (“Matterport”) 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.
“Aerial Services” means providing Aerial Photography or Aerial Videography. The digital photographs or digital video can be shared using a URL or embed code.
“Google Street View Publishing” means publishing 360 Photospheres or Photographs to Google for integration into Google Street View.
[ ] Matterport Highlight Reel [up to ___ positions]
[ ] Matterport Guided Tour [up to ___ positions]
[ ] Matterport Snapshots [up to ___ Snapshots]
[ ] Mattertag Posts [up to ___ Posts]
[ ] Matterport CoreVR Experience (Android & iOS)
[ ] Matterport 2D Schematic Floor Plan
[ ] Aerial Photographs [up to ___ Photos]
[ ] Aerial Videos [up to ___ Videos]
[ ] Post editing [up to ___ Photos]
[ ] Post editing [up to ___ Videos]
Google Publishing Services
[ ] Photospheres &/or Photographs published to Google [up to ___ Photospheres/Photographs]
Capture Service Date(s) and Service Location(s): 808 Virtually will capture imagery for the 3D Services (“Capture Services”) on the following date(s) at the location(s) (“Service Location(s)”):
1.2. Delivery. 808 Virtually will provide a URL and embed code for the completed Matterport Space(s) (which will include access to Guided Tours and CoreVR Experience, if ordered). Customer understands and agrees that all Matterport Spaces (including associated Guided Tours and CoreVR Experience, if ordered) are hosted solely on Matterport’s platform, and Customer will not receive any digital assets for Matterport Spaces. Matterport Snapshots and Matterport 2D Schematic Floor Plans will be provided by email or a third-party digital repository. 808 Virtually will make all the foregoing 3D Services available to Customer within 5 days after the date of the Capture Services. Customer can request that Matterport Spaces contain hidden “presented by” and “contacts” details for use on real estate MLS’s.
1.3. Hosting Term. 808 Virtually agrees to process and host the created Matterport Space(s) on the Matterport platform for a period of 3 months following the completion of Capture Services. Additional time periods will be payable by you, should you desire, at a quarterly or yearly rate, payable in advance to 808 Virtually.
1.4. Service Location Preparation. Customer is required to prepare the Service Location in advance of Capture Services, including without limitation:
Removing confidential or unwanted items
Adjusting furniture and/or decor to desired position
Informing 808 Virtually of any rooms or areas that should be excluded from Capture Services
Ensuring the Service Location is free of moving persons, pets, or objects
Unless otherwise arranged, a Service Location that has not been properly prepared, in 808 Virtually’ s sole discretion, will be considered unready and the date of Captures Service must be rescheduled. 808 Virtually shall not be responsible for the untidiness of any Service Location or for small alignment issues, mirror, window, glass, and reflective views. Customer shall further ensure that the Service Location is accessible upon the day of Capture Service. Customer or its representative shall be present at the Service Location at the time of the Capture Services to approve 808 Virtually’ s interpretation of the Captures Services to be provided.
1.5. Cooperation. Customer will cooperate in a reasonable and timely manner in connection with 808 Virtually’ s performance of the Capture Services and provision of the 3D Services.
2. FEES AND PAYMENT; CANCELLATION AND RESCHEDULING POLICY.
2.1. Fees. Customer agrees to pay 808 Virtually total fees of $________ for the Services listed above.
2.2. Deposit. [ ] (check if applicable) At the time of the signing of this Agreement, Customer shall pay a non-refundable deposit, via credit card or money order, of $____________ to 808 Virtually for Services to be provided. The deposit will be subtracted from the total payment owed by Customer upon completion of the Services.
2.3. Invoice and Payment of Balance Due. Following completion of the Capture Services, Customer shall pay 808 Virtually, via credit card or money order, the remaining fees owed within 10 days of delivery of embed code to Customer. Customer shall make all payments in USD $. If Customer fails to pay any amount when due, without limiting any other remedies available to 808 Virtually: (a) Customer will pay interest on the overdue amount at the lesser of 1% percent per month or the highest rate permitted under applicable law; and (b) 808 Virtually will have the right to suspend providing the 3D Services to Customer until such overdue amount is received.
2.4. Cancellation and Rescheduling Policy. Except as otherwise expressly provided in this Agreement, all deposits are non-refundable. A minimum of 24 hours prior written notice will be required for Customer’s cancellation of this Agreement or rescheduling of the Capture Service date. If Customer cancels this Agreement with less than 24 hours’ notice prior to the agreed upon Capture Service date, Customer will be responsible for full payment of all fees. If Customer reschedules the Capture Service date with less than 2 days’ notice prior to the agreed upon Capture Service date, Customer shall pay 808 Virtually a rescheduling fee of $50.00. 808 Virtually shall provide any refund owed hereunder within thirty (30) days from the cancellation date.
2.5. Taxes. All amounts payable by Customer to 808 Virtually under this Agreement are exclusive of any sales, use, excise, import or export, value-added, or withholding tax, levy or similar governmental charge that may be legally assessed by any jurisdiction, whether based on the provision of Capture Services or 3D Services, or the payment of fees; provided, however, that Customer shall have no liability for income or franchise taxes of 808 Virtually.
3. PROPRIETARY RIGHTS AND LICENSES.
3.1. Ownership. 808 Virtually and its licensors own all right, title and interest (including all associated intellectual property rights) in and to: (a) all 3D 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 Customer are reserved by 808 Virtually and 808 Virtually’ s licensors, and Customer shall make no use of the foregoing except as expressly provided herein. Customer acknowledges that, subject to Section 3.4, 808 Virtually will have the right to use and distribute any 3D services in 808 Virtually’ s sole discretion.
3.2. License to Customer. 808 Virtually hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license, during the Term, to: (a) use and distribute URLs and embed codes linking to the Matterport Space(s) (including any associated Guided Tours and CoreVR Experience, if ordered) hosted on the Matterport Platform; and (b) to use and distribute Matterport Snapshots and Matterport 2D Schematic Floor Plans (if ordered).
3.3. Restrictions. Upon any expiration or termination of this Agreement, Customer shall immediately cease all use of the 3D Services and delete all copies of the 3D Services (an content or data derived from the 3D Services) in Customer’s possession or under Customer’s control. Customer shall not: (i) disable or modify any hyperlinks contained in any 3D 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 3D Services; (iii) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of any software underlying the 3D Services; (iv) distribute, in conjunction with any 3D 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 Matterport without the prior written authorization of Matterport, or otherwise access Matterport Spaces (and any portion thereof) through any means other than available end-user functionality; or (vi) modify or create any derivative work based on the 3D Services (or any component thereof).
3.4. Takedown Service. During the Term, Customer can request at any time that 808 Virtually designate any Matterport Space and other hosted 3D Services as public or private. Any Matterport Space or other hosted 3D Service designated as private will be un-accessible and unviewable by the public. 808 Virtually will promptly comply with such request.
4. NO AFFILIATION WITH MATTERPORT. Customer acknowledges that: (a) 808 Virtually is an independent provider of the Capture Services and is not a contractor, employee, or agent of Matterport; and (b) 808 Virtually is making the 3D Services available to Customer under a license between Matterport and 808 Virtually.
5. WARRANTY; DISCLAIMER. 808 Virtually 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 Customer’s sole and exclusive remedy, 808 Virtually shall use commercially reasonable efforts to re-perform its obligations promptly in a manner that cures such breach. EXCEPT FOR THE FOREGOING WARRANTY, THE 3D 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. 808 VIRTUALLY 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 3D SERVICES AND CAPTURE SERVICES. 808 VIRTUALLY DOES NOT REPRESENT OR WARRANT THAT 3D SERVICES OR CAPTURE SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE 3D SERVICES AND CAPTURE SERVICES WILL BE ACCURATE OR RELIABLE, THAT USE OF THE 3D SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE 3D SERVICES WILL BE CORRECTED. IN ADDITION, 808 VIRTUALLY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING: (A) THE APPROPRIATENESS OF THE 3D SERVICES FOR USE IN FOREIGN JURISDICTIONS; OR (B) THE TIMING OF 3D SERVICES PROVIDED TO CUSTOMER. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to Customer. Nothing in this Agreement disclaims any implied warranty that cannot be disclaimed under applicable law.
6. INDEMNIFICATION. Customer, at Customer’s own expense, will indemnify, defend and hold harmless 808 Virtually, its corporate affiliates and licensors, and their respective officers, directors, employees, representatives and agents (each a “808 Virtually 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 808 Virtually Indemnitee to the extent that such Claim is based on, or arises out of: (a) a breach, or potential breach, of any of Customer’s obligations under this Agreement; (b) Customer’s use of the 3D Services; (c) any allegation that Customer has not obtained all consents, approvals, licenses, and permissions necessary for Customer, 808 Virtually or their respective subcontractors, as applicable, to have access to a Service Location captured in any 3D 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 Customer or Customer’s subcontractors or agents. In the event of a claim in respect of which a 808 Virtually Indemnitee seeks indemnification from Customer under this Section, the 808 Virtually Indemnitee will promptly notify Customer in writing of the claim, cooperate with Customer in defending or settling the claim at Customer’s expense, and allow Customer to control the defense and settlement of the claim, including the selection of attorneys; provided, however, that Customer shall not settle any claim unless such settlement completely and forever releases the 808 Virtually Indemnitee from all liability with respect to such claim or unless the 808 Virtually Indemnitee consents to such settlement in writing.
7. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, CUSTOMER’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 808 VIRTUALLY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. NEITHER 808 VIRTUALLY NOR MATTERPORT SHALL BE RESPONSIBLE OR LIABLE FOR ANY PERSONAL OR CONFIDENTIAL INFORMATION CAPTURED OR DISPLAYED IN ANY 3D SERVICE. CUSTOMER IS RESPONSIBLE FOR PREPARATION OF EACH SERVICE LOCATION, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY OBJECTS OR PEOPLE DISPLAYED IN ANY 3D 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 3D 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) Customer will immediately cease all access to and use of all 3D Services, and the license granted to Customer with respect to the 3D Services shall immediately terminate; (b) unless Customer is terminating the Agreement for cause pursuant to Section 7.2, Customer shall, within thirty (30) days of expiration or termination, pay to 808 Virtually all amounts then accrued and payable under this Agreement; (c) unless 808 Virtually is terminating the Agreement for cause pursuant to Section 7.2, 808 Virtually shall, within thirty (30) days of expiration or termination, refund to Customer the amount of any unused fees prepaid by Customer; and (d) Sections 3.1, 3.3, 4, 5, 6, 7, 8.3 and 10 shall survive. 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 3D Services or Capture Services, the Parties may mutually agree to terminate certain rights granted hereunder.
9. FORCE MAJEURE. Neither party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement (other than a failure to pay fees when due) if such default or delay is caused, directly or indirectly, by any cause beyond such party’s reasonable control (each, a “Force Majeure Event”); provided, however, that the party affected by the Force Majeure Event shall provide the other party with prompt written notice of the Force Majeure Event and use commercially reasonable efforts to minimize the effect of the Force Majeure Event upon such party’s performance; provided, further, that should the performance by either party of its obligations under this Agreement be prevented by a Force Majeure Event for more than thirty (30) days, the other party shall have the right to terminate this Agreement without liability to the non-performing party and receive a refund of any unused fees prepaid by such terminating party, if any.
10. MISCELLANEOUS. Customer shall comply with all applicable laws and regulations relating to Customer’s use, display, and distribution of the 3D Services. Neither party shall assign this Agreement without the prior written consent of the other party, which consent the other party shall not withhold unreasonably; provided, however, that either party shall have the right to assign this Agreement and the obligations hereunder to any company affiliate or to any successor of such party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning party relating to the Agreement. Any attempt by either party to assign other than in accordance with this provision shall be null and void. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by email or by overnight courier to the intended recipient thereof at such address of a party set out herein or otherwise provided by a party; provided, however, that any notices regarding breach or termination of this Agreement shall only be given by overnight courier. The parties acknowledge that the relationship of the parties is that of independent contractors and that nothing contained in this Agreement shall be construed to place the parties in the relationship of principal and agent, partners, or joint ventures. No amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of 808 Virtually and Customer, and then only to the extent specifically set forth therein. No waiver by either party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision. The laws of Hawaii shall govern this Agreement, without regard to its conflict of law rules. Any claims or litigation arising under this Agreement will be brought by the parties solely in state and federal courts located in Hawaii. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled. This Agreement embodies the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersedes all prior negotiations, discussions, agreements and understandings between the parties relating to the subject matter hereof and thereof. If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid, or unenforceable, it is the intention of the parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect. 808 Virtually will have the right to refer to Customer’s name in lists of 808 Virtually’ s customers. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized agent as of the Effective Date.
808 Virtually, LLC
Name: Mark Jackson
Title: Owner 808 Virtually, LLC