Last updated: June 16th, 2019
1. INTRODUCTION AND ACCEPTANCE OF AGREEMENT
This Platform Usage Agreement sets forth the terms and conditions pursuant to which Immersive Media Solutions Ltd. (“IMS”) will provide you or the legal entity that you represent (“You”) with the right to access and use services provided on the Openhouse Platform (https://openhouse.boost3d.net).
IN USING THE SERVICES PROVIDED BY THE OPENHOUSE PLATFORM, 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 USE SERVICES PROVIDED BY THE OPENHOUSE PLATFORM.
IMS reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating the clauses herein. Thus, You should visit https://openhouse.boost3d.net/platform-usage-agreement/ periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the Openhouse Platform. Your continued use of the Openhouse Platform after a change has been posted constitutes Your acceptance of the change thereafter.
“Agreement” means this document.
“Documentation” means any instructions made available by IMS regarding the Openhouse Platform.
“IMS” Means Immersive Media Solutions Ltd, a company registered in England under Company number 11585055.
“Openhouse Platform” means the infrastructure and services provided by the website https://openhouse.boost3d.net.
“Subscription Level” has the meaning set forth in Section 4.1 of this agreement.
“Subscription Period” means, collectively, each monthly or annual subscription period described in Section 4.1 of this agreement as applicable, and any renewal thereof.
“You” and “Your” refers to the individual or entity that has executed this Agreement
“Video Minutes” means the total number of subscribed minutes to videoconferencing services equal to the sum of the number of minutes each subscriber has been active in a videoconference. For example a one hour video conference with three participants where participant 1 has been active for 60 minutes, participant 2 for 30 minutes and participant 3 for 15 minutes will represent 105 video minutes (60 + 30 + 15).
3. USE OF OPENHOUSE PLATFORM.
The Openhouse Platform provides value added services to businesses that have commissioned a Matterport 3d Model. Openhouse operates independently of Matterport and does not provide the base model. You are only authorized to use the Openhouse Platform in accordance with the terms in this agreement. You will cause each Authorized User to comply with all applicable terms and conditions of this Agreement, and any breach of this Agreement caused by any Authorized User will be deemed a breach by You. IMS reserves the right to introduce other additional paid services, and to modify or discontinue the Services or any other additional services at any time.
You shall provide IMS with complete and accurate information for Your Openhouse Platform account, including any business details required to facilitate financial transactions and keep such information up to date with IMS. You are responsible for maintaining the security and confidentiality of Your login information, including the password, associated with Your Openhouse Platform account, and for all activities that occur under Your account. If You become aware of any unauthorized or illegal use of any such login information, You shall immediately notify IMS.
3.3 User Conduct
You shall not cause to be uploaded to the Openhouse Platform any of the following: (a) any content subject to copyright that is not Your original work, unless You have permission from the rightful owner; (b) any confidential or private information of any third party (including private information displayed in any physical location) without the express consent of such third party; (c) any content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (d) any content that infringes or misappropriates any third-party intellectual property right, or is invasive of any privacy or publicity right. You also agree not to use the Openhouse Platform for any illegal or improper purpose, and not to conduct any activities that could damage, disable, overburden or impair the Openhouse Platform.
3.4 Maintenance and Technical Support
IMS will use reasonable efforts to keep the Openhouse Platform operational, exclusive of downtime necessary for scheduled and emergency maintenance. IMS shall provide reasonable technical support to You, through email, during the hours of 9 a.m. to 5 p.m. GMT, Monday through Friday (excluding national holidays), for all issues relating to the operation and use of the Openhouse Platform.
4. SUBSCRIPTION, FEES AND PAYMENT
Unless otherwise mutually agreed in writing with IMS, Your subscription to the Openhouse Platform will be on either a monthly or an annual basis, commencing on the the date Your account is provisioned on the Openhouse Platform. If IMS, in its discretion, provides You with a trial subscription, the subscription will commence on the date IMS authorizes such trial access. Trial access may be revoked by IMS at it’s sole discretion. Your subscription will expire: (i) for monthly subscriptions, on the last day of the calendar month following the month in which Your subscription commenced; or (ii) for annual subscriptions, on the last day of the calendar month in which the one-year anniversary of Your subscription commencement date falls. Your subscription, whether monthly or annual, will automatically renew unless terminated as provided below. In the event You cancel Your subscription or IMS terminates this Agreement as set forth below, the Subscription Period will end on the last day of the calendar month in which You cancel Your subscription or on the date of IMS’s termination. To the extent offered in connection with Your subscription to the Openhouse Platform, You will have the ability to select from several levels of subscription to the Services (“Subscription Levels”). Each Subscription Level You select will include the features for such Subscription Level described on the Openhouse Platform and will be subject to any applicable terms, conditions and restrictions set forth in any additional terms associated with such features. IMS reserves the right to modify the features and cost of any Subscription Level at any time.
Except as provided below, Your right to access and use the Openhouse Platform for each Subscription Period is subject to IMS’s receipt of the agreed subscription fee for such Subscription Period. IMS will charge the initial subscription fee on the first day of the calendar month afterYour account is provisioned on the Openhouse Platform, along with the subscription fee for Your second month. The first month’s subscription fee will be prorated for Your subscription start date. Thereafter, until termination of the subscription, IMS will charge You the subscription fee in advance on the first of every month, for monthly subscriptions, or on the anniversary of Your initial subscription fee payment, for annual subscriptions. IMS reserves the right to modify the billing dates and/or the subscription fees at any time by posting revised fees on the IMS website. IMS further reserves the right, in its sole discretion, to offer unpaid trial subscriptions to the Openhouse Platform in certain cases. In the event IMS provides You with a trial subscription, the terms of this Section 4.1 regarding subscription fees do not apply during the period of such trial subscription.
4.3 Additional Fees
In addition to the subscription fees, IMS will also have the right to charge You any fees incurred by You in exceeding the monthly allowances for your subscription. Unless otherwise agreed, Your subscription includes 10000 Video Minutes, usage above this allocation will be charged at £20 per additional 1000 minutes or part thereof.
1.4 Remedies, Taxes
IMS may suspend or terminate Your access to the Openhouse Platform if any such payment is overdue, and IMS may impose a late fee equal to 1.5% per month or the maximum rate allowed by law, whichever is lower, on any overdue amounts. You are responsible for the payment of all applicable taxes and duties, if any, associated with Your subscription to the Openhouse Platform and other products and services associated with Your Openhouse Platform account, excluding taxes based on IMS’s income.
6. NO WARRANTY
THE OPENHOUSE SYSTEM, DOCUMENTATION AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. IMS 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. IMS DOES NOT REPRESENT OR WARRANT THAT THE OPENHOUSE PLATFORM, DOCUMENTATION OR RELATED SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE OPENHOUSE PLATFORM, DOCUMENTATION OR RELATED SERVICES WILL BE ACCURATE OR RELIABLE, THAT USE OF THE OPENHOUSE PLATFORM, DOCUMENTATION OR RELATED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE OPENHOUSE PLATFORM, DOCUMENTATION OR RELATED SERVICES WILL BE CORRECTED..
7. LIMITATIONS OF LIABILITY
IN NO EVENT WILL IMS OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF IMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF IMS AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE OPENHOUSE PLATFORM, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS YOU PAID TO IMS UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR £500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL IMS OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY UNAUTHORIZED REDISTRIBUTION OR DISPLAY OF ANY CONTENT BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION THROUGH ANY UNAUTHORIZED EMBEDDED LINKS OR CODE ON A THIRD PARTY WEBSITE OR APP.
You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You. Nothing in this Agreement excludes or limits any liability of IMS that cannot be excluded or limited under applicable law.
You acknowledge that by providing You access to the Openhouse Platform, IMS does not assume any responsibility or liability for any risks associated with Your business. Accordingly, You shall defend, indemnify and hold harmless IMS, its affiliated companies, and their respective officers, directors, employees, licensors, subcontractors and representatives from and against all claims, actions or suits by any third party, including all associated liability, judgments, fines, losses, costs, damages, settlements, and reasonable legal fees and expenses, arising out of or relating in any way to: (a) the conduct of Your business or the use of or inability to use the Openhouse Platform; or (b) Your breach of any of Your covenants, representations and/or warranties set forth in this Agreement.
9. TERM AND TERMINATION
The term of this Agreement will commence upon Your acceptance of this Agreement as set forth in Section 1 of these General Terms and, unless earlier terminated as set forth herein, will continue to renew on a monthly basis.
9.2 Termination by You.
You may terminate this Agreement (cancelling Your access to the Openhouse Platform) at any time, provided that such termination will become effective as provided in Section 3.2 of these General Terms.
9.3 Termination by IMS
IMS may terminate this Agreement (and cancel Your access to the Openhouse Platform at any time if You have failed to pay any fee when due and failed to make such payment within thirty (30) days after receiving a reminder from IMS in writing. IMS may also terminate this Agreement (and cancel Your access to the Openhouse Platform) if You have committed any other material breach of this Agreement and failed to cure such material breach within ten (10) days after receiving written notice of the breach from IMS.
9.4 Effect of Expiration or Termination.
Upon any expiration or termination of this Agreement: (a) Your access to the Openhouse Platform (and access for every Authorized User under Your account) will be deactivated.
Upon the expiration or termination of this Agreement, the rights and obligations of the parties will cease, except for the rights and obligations in all provisions of this Agreement that by their nature contemplate performance after the expiration or earlier termination hereof, including without limitation under Sections 1, 2, 3.1, 3.4, 5, 6, 7, 8 and 9 of this Agreement.