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://s3.amazonaws.com/io.bridge.assets/files/Bridge_Safety_Information.pdf
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.
