TERMS OF IMAGE XD 3D SERVICES AGREEMENT

The following Terms become part of the Agreement accepted & acknowledged by the Customer (“Customer”) via electronic email.

The IMAGEXD Services Agreement (the “Agreement”) is effective as of the acceptance of the Agreement (the “Agreement”) by electronic mail (the “E-mail”) from the “Customer” (the “Customer”) .The “Effective Date”, is entered by as per email confirmation and between IMAGE XD llc. (the “Service Provider”) a Matterport Service Partner, and the Customer (“Customer”).

1. DESCRIPTION OF SERVICES.

1.1.           Overview of Services:  Service Provider will provide to Customer the following services as outlined in the Agreement (collectively, the “3D Services”):

A “IMAGEXD Space” is a 3D model hosted on the platform of Matterport, Inc. (“Matterport”) by Image XD llc. (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 IMAGEXD Services Available: (As outlined and accepted in the Agreement.)

• Highlight Reel
• Guided Tour 
• Snapshots 
• Tags, Posts & Labels
• CoreVR Experience (Android & iOS)
• 2D Schematic Floor Plan
• Schematic Floor Plans: Black & white schematic floor plan with dimensions.
• Publish your interactive 3D Space on Google Street View: Commercial Properties Only
• IMAGEXD Pro Bundle:

The IMAGEXD PRO BUNDLE is a set of commercial 3D assets for import into third party programs. This IMAGEXD PRO BUNDLE contains the following files and is design for Architects and Engineers for as-built designs and Construction professionals for documentation and turnover packages. 3D data is accurate to within 1% of reality. Point cloud and OBJ scale: 1 unit = 1 meter. Ceiling plan and floor plan images contain a scale legend.

• –Color point cloud (.xyz)
• -Reflected ceiling plan image (.jpg and .pdf)
• -High resolution floor plan image (.jpg and .pdf)
• -OBJ file of the 3D mesh (.obj)

Capture Service Date(s) and Service Location(s): Service Provider will capture imagery for the 3D Services (“Capture Services”) as per the date(s) at the location(s) (“Service Location(s)”) per the Agreement.

1.2.           Delivery:  Service Provider will provide a URL and embed code for the completed IMAGEXD Space(s) (which will include access to Guided Tours and CoreVR Experience, if ordered). Customer understands and agrees that all IMAGEXD Space (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 IMAGEXD Space.  IMAGEXD Snapshots and IMAGEXD 2D Schematic Floor Plans will be provided by email or a third-party digital repository. Service Provider will make all of the foregoing 3D Services available to Customer within the stated hours/days in the Agreement after the date of the Capture Services.  Customer can request that IMAGEXD Space contain hidden “presented by” and “contacts” details for use on real estate MLSs only. (also known as Unbranded Links).

1.3.           Hosting Term:  Service Provider agrees to process and host the created IMAGEXD Space(s) on the Matterport platform for a period agreed upon within the Agreement following the completion of Capture Services.

1.4.           Service Location Preparation: Customer is required to prepare the Service Location in advance of Capture Services, including without limitation:

• Removing confidential, photos or 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

Unless otherwise arranged, a Service Location that has not been properly prepared, in Service Provider’s sole discretion, will be considered unready and the date of Captures Service must be rescheduled.  Service Provider 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 for up to the hours outlined in the Agreement.  Customer or its representative shall be present at the Service Location or be in direct contact at the time of the Capture Services to approve Service Provider’s interpretation of the Captures Services to be provided.

1.5.           Cooperation:  Customer will cooperate in a reasonable and timely manner in connection with Service Provider’s performance of the Capture Services and provision of the 3D Services.

1. FEES AND PAYMENT; CANCELLATION AND RESCHEDULING POLICY.

2.1.           Fees.  Customer agrees to pay Service Provider total fees as per the accepted Agreement for the 3D Services and Capture Services in the Agreement.  Such fees will be itemized in the electronic email that is part of this Agreement provided to Customer.

2.2.  (left blank)

2.3.           Invoice and Payment of Balance Due.  Following completion of the Capture Services, Customer shall pay Service Provider, the remaining fees owed upon receipt via online invoice. In the event that Customer fails to pay any amount when due, without limiting any other remedies available to Service Provider, the Service Provider will have the right to suspend all applicable links, providing the 3D Services to Customer until such overdue amount is received.

2.4.           Cancellation and Rescheduling Policy.   A minimum of 72 hours prior written notice will be required for Customer’s cancellation of this Agreement or rescheduling of the Capture Service date.  In the event that Customer cancels this Agreement with less than 48 hours notice prior to the agreed upon Capture Service date, Customer will be responsible for full payment of all fees.  In the event that Customer reschedules the Capture Service date with less than 48 hours notice prior to the agreed upon Capture Service date, Customer shall pay Service Provider a rescheduling fee of $75.00.

2.5.           Taxes.  All amounts payable by Customer to Service Provider 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 Service Provider.

1. 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 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 Service Provider and Service Provider’s licensors, and Customer shall make no use of the foregoing except as expressly provided herein.  Customer acknowledges that, subject to Section 3.4, Service Provider will have the right to use and distribute any 3D services in Service Provider’s sole discretion.

3.2.           Service Provider License to Customer.  Service Provider 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 IMAGEXD Space(s) (including any associated Guided Tours and CoreVR Experience, if ordered) hosted on the Matterport Platform; and (b) to use and distribute IMAGEXD Snapshots and IMAGEXD 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 Service Provider or Matterport without the prior written authorization of Service Provider & Matterport, or otherwise access IMAGEXD 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 3D Services (or any component thereof).

3.4.           Takedown Service.  During the Term, Customer can request at any time that Service Provider designate any IMAGEXD Space and other hosted 3D Services as public or private.  Any IMAGEXD Space or other hosted 3D Service designated as private will be un-accessible and unviewable by the public.  Service Provider will promptly comply with such request.

1. NO AFFILIATION WITH MATTERPORT.  Customer 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 3D Services available to Customer under a license between Matterport and Service Provider.
2. 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 Customer’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 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.  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 3D SERVICES AND CAPTURE SERVICES.  SERVICE PROVIDER 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, SERVICE PROVIDER 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.
3. INDEMNIFICATION.  Customer, at Customer’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 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, Service Provider 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 Service Provider Indemnitee seeks indemnification from Customer under this Section, the Service Provider 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 Service Provider Indemnitee from all liability with respect to such claim or unless the Service Provider Indemnitee consents to such settlement in writing.
4. 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 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 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.
5. 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 Service Provider all amounts then accrued and payable under this Agreement; (c) unless Service Provider is terminating the Agreement for cause pursuant to Section 7.2, Service Provider 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.

1. 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.
2. 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 any 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 venturers.  No amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of Service Provider 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.  This Agreement shall be governed by the laws of the State of Florida, 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 the Orange County, Florida.  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.  Service Provider will have the right to refer to Customer’s name in lists of Service Provider’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 one and 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 of the Agreement distributed and agreed upon by electronic mail.