Terms

Occipital Terms of Service.

 

1.     Introduction.  Please read the following terms of service ("Terms") carefully as they contain the legal terms and conditions of the agreement ("Agreement") that you must agree to when you register with us for or submit digital images or other content to Occipital through the Service.  As used in this Agreement, "we" or "Occipital" means Occipital, Inc., and "you" and "user" means the individual or entity submitting Content to Occipital.  Any user who wants to use the Service must accept the terms of this agreement without change.  BY REGISTERING FOR OR USING THE SERVICE OR SUBMITTING ANYTHING TO OCCIPITAL, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. By accessing or using the Service, you are accepting these Terms (on behalf of yourself or the entity that you represent) and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). 

2.      Definitions.  As used in this Agreement, (a) "Content" means any photographs, pictures, content, text, artwork, files, programs, sound, graphics, video, audio, room dimensions, 3D reconstructions, depth information, floor plans, measurements, sketches, data, and other similar materials, (b) "Media" means any means of conveying information, whether now known or hereafter devised and (c) "Service" means any application owned or provided to you by Occipital, including but not limited to Canvas, Skanect, Structure SDK sample apps, and 360 Panorama ("Applications") and any services owned by Occipital with which the Applications interoperate.

3.      Requirement.  You may only submit Content to the Service (or to third party sites using the Service) for which you hold all intellectual property rights.  In other words, if you submit a digital image to us or to a third party, you must own all rights to such image or you must have the authorization of the person who does own those rights.  

4.      Registration.  You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving services by Occipital or under the laws of the United States or other applicable jurisdictions.  You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Customer Data") and (b) maintain and promptly update the Customer Data to keep it true, accurate, current and complete.  If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).  To register for the Service you must be 13 years or over.  Minor children over the age of 13 but under the age of 18 who wish to access the Service must obtain permission from their parent or legal guardian and their parent or legal guardian must agree to these Terms.

5.      License Grant to Occipital.  You hereby grant to Occipital a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, fully-paid up, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property and other rights in the Content, to (a) reproduce, distribute, transmit, publicly perform and publicly display the Content, in whole or in part, in any manner and Media (including, without limitation, any publicly available website or application hosted by us), (b) modify, adapt, translate and create derivative works from the Content, in whole or in part, in any manner and Media, (c) sublicense the foregoing rights, in whole or in part, to any third party, with or without a fee and (d) exercise any and all other present or future rights in the Content in each case, to the extent reasonably necessary, in Occipital's discretion, to provide the Service to you and for the other purposes set forth in these Terms and our Privacy Policy.

6.   Modified Content.  Occipital may provide you, or you may purchase from Occipital, a Service that takes your Content, and transforms it into other formats ("Modified Content").  Occipital may use third party providers to create the Modified Content, at the rates set forth on the Service, and such third party providers will be governed by the Occipital Privacy Policy unless stated otherwise.  All Modified Content is provided as-is and Occipital makes no, and disclaims any representations or warranties with respect to such Modified Content.  Your use of the Modified Content is at your own risk.  Occipital may refuse to create any Modified Content in its discretion, or it may determine that some Content is unable to be converted to Modified Content, including without limitation corrupt or incomplete Content.  If Occipital is unable, in its sole discretion, to provide you with Modified Content, it will refund you the purchase price paid by you to Occipital for such conversion.  Occipital will use your Modified Content in accordance with our Privacy Policy.  Additionally, Occipital may use or share any Modified Content for any purpose in its discretion, provided that such use or sharing does not disclose any personally identifiable information about you to any third party.   From time to time, we may, in our sole discretion and at no cost, modify your Content or provide you with Modified Content for your evaluation or promotional purposes. 

7.      Privacy.  You consent to the collection, use, sharing and onward transfer of your data as outlined in the Occipital Privacy Policy (http://occipital.com/legal/privacy).  You hereby acknowledge and consent to third party payment processing of any payments you make to us for Services.  You hereby acknowledge and consent to Occipital's use of third party service providers to convert  your Content to Modified Content.  If you wish to share any Content or Modified Content with any of our partners or providers, we will share such information with them.   

8.      No Liability. Occipital makes no claim on the veracity of data captured by Applications except for, in the case of Canvas, what is explicitly stated in the technical specifications for Structure Sensor, listed at: http://structure.io/support. You hereby agree to indemnify, defend, and hold Occipital harmless from all claims, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from your use of Applications, Content, Modified Content, or services provided therein.

9(a).      Restrictions.  You agree that you will not submit Content that is unlawful, pornographic, libelous, defamatory, tortious, obscene, or racially, ethnically or otherwise objectionable or that otherwise violates general Occipital community standards.  We expressly reserve the right to remove or not make available any Content, or provide services in connection with Modified Content, that we deem to be in violation of this Agreement, applicable laws or our community standards, in our sole discretion. You agree that you will not upload, post, e-mail or otherwise transmit Content to us that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

9(b).   Safety. You should only use Occipital products for their intended function and should always take precautions when doing so. There are certain health and other risks inherent in some of our products. For a complete list of health and safety warnings see the information at the following link: http://occipital.com/bridge/getstarted

10.   No Obligation.  We may, in our sole discretion and for any reason, refuse the Content or remove it from our Service at any time.

11.   Representations and Warranties.  You represent and warrant to Occipital that (a) you are not under 18 years old; (b) you are otherwise legally competent to enter into this Agreement; (c) you have the right, power, and authority necessary to enter into this Agreement, to fully perform your obligations hereunder, and to grant the licenses set forth in Section 5 above, (d) you will comply fully with all terms of this Agreement, (e) you are the sole authors of the Content; (f) the Content does not infringe any copyright or any other intellectual property right of any third party; (g) the Content, and Occipital's exercise of its rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party, (h) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of the Content by Occipital as permitted hereunder, (i) the Content is not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful, and (j) all factual statements submitted by you are accurate and not misleading.

12.   Indemnity.  You agree to indemnify, defend, and hold Occipital harmless from all claims, liabilities, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from your breach of this Agreement, including, without limitation, any representation or warranty set forth in Section 11.

13.  Payment.  In order to use some of the Services, we (or our third party partners) may collect your credit card information and charge you for such Services at the amounts set forth on our website.  You represent and warrant that you have the right to provide us with such information.  You will indemnify us for any losses, damages, fines, chargeback fees, collection amounts, or similar fees or expenses in connection with your unauthorized use of a credit card. 

14. Copyright Policy – DMCA Notice. It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing: (a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner; (b) Identification of the copyrighted work that you claim has been infringed; (c) Identification of the material that is claimed to be infringing and where it is located on the Service; (d) Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address; (e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and (f) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted to the following DMCA Agent:

Attn: Copyright Agent

 Jeffrey Powers

1801 13th St Suite #202

Boulder, CO 80302

 

15. Service Rules. You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (b) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the Occipital servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Occipital grants the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Service; (g) collecting or harvesting any personally identifiable information, including account names, from the Service; (h) using the Service for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Service; (k) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (l) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms. You are solely responsible for your interactions with other Occipital Users. We reserve the right, but have no obligation, to monitor disputes between you and other users.

16.   Changes to Agreement.  We reserve the right to change any of the terms of this Agreement or any specifications or guidelines governing the Service at any time in our sole discretion.  All changes will be effective upon posting to the Service.  However, for all changes to this Agreement, excluding specifications and guidelines, we will post a notice of change for thirty (30) days.  You are responsible for reviewing the notice and any applicable changes.  Any amendments or modifications made by us shall be retrospective and any new or modified version of this Agreement shall supersede any previous versions.  YOUR CONTINUED USE OF THIS SERVICE FOLLOWING OUR POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.

17.   Occipital Intellectual Property.  Without our prior written consent, you may not use our intellectual property, including, without limitation, our trademarks, trade names, trade dress, or copyrighted material, in any manner. Occipital retains sole and exclusive ownership of all rights, title and interests in the Service, the website, and Occipital content and all intellectual property rights relating thereto, including, without limitation, issued patents and pending patent applications with respect to the Service and the technology related thereto. Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Occipital reserves all rights not expressly granted herein. Occipital may terminate this license at any time for any reason or no reason. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the site or Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the site or Service; (c) you shall not access the site or Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the site or Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.  Unless otherwise indicated, any future release, update, or other addition to functionality of the site and Service shall be subject to these Terms. 

18.   Communications.  Occipital may communicate with you in connection with the Service, electronically and in other Media, and you consent to such communications regardless of any "Customer Communication Preferences" (or similar preferences or requests) you may have indicated on the web sites of Occipital or by any other means.

19.   Limitation of Liability.  OCCIPITAL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE MODIFIED CONTENT, EVEN IF WE HAVE BEEN ADVISED OF (OR KNEW OR SHOULD KNOWN OF) THE POSSIBILITY OF SUCH DAMAGES.  OCCIPITAL'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100.

20.   Disclaimer. OCCIPITAL PROVIDES THE SERVICE AND THE APPLICATIONS "AS IS" WITHOUT WARRANTY OF ANY KIND AND OCCIPITAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  OCCIPITAL IS NOT RESPONSIBLE FOR MAINTAINING, STORING OR BACKING UP ANY OF YOUR CONTENT.  OCCIPITAL SHALL HAVE NO RESPONSIBILITY FOR ANYTHING THAT RELATED TO ANY THIRD PARTY SITES, INCLUDING, WITHOUT LIMITATION, YOUR CONTENT ON ANY THIRD PARTY SITE.  YOU ACCEPT ALL RISK RELATED TO ANY CONTENT THAT YOU SUBMIT TO OCCIPITAL OR ANY THIRD PARTY.Miscellaneous.  The Service is limited to parties that lawfully can enter into and form contracts under applicable law.  Minors may not submit Content to the Service.  Further, you may not submit any personally identifiable information about any child under the age of 13.  This Agreement will be governed by the laws of the United States of America and the state of Colorado, without reference to rules governing choice of laws.   If you believe that we have not adhered to these Terms, please contact Company by e-mail at info@occipital.com.  We will do our best to address your concerns.  If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.  If you and Occipital are unable to reach a resolution to the dispute, you and Company will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. You and Occipital agree that any arbitration will be limited to the dispute between Occipital and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Occipital otherwise agree, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent.  Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and permitted assigns.  Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.  Occipital may assign this Agreement in its discretion.  Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications and understandings between the parties.  No modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.  Notwithstanding the foregoing, this Agreement is in addition to, and does not supersede or modify, the terms and conditions of use of the web sites or services of Occipital.

21.   Changes to our Terms of Service. This Terms of Service was last modified on November 10, 2016.  If we change our Terms of Service, we will update this modification date.

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