YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 22 TO RESOLVE ANY DISPUTES WITH OCCIPITAL (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
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, TapMeasure, 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.
8. No Liability. Occipital makes no claim on the veracity of data captured by Applications. 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.
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(a). Payment Methods. To use the Service, you must provide one or more Payment Methods. You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment for the Services. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. You can update your Payment Methods by going to the Account page. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method.
13(b). Billing. Any charges you incur in connection with your Services, including subscription fees, taxes, and possible transaction fees, will be charged to your Payment Method on the day on which you place your order for the Service, or, for subscription plans, the specific payment date indicated on the Account page. All fees are fully earned upon payment. We may authorize your Payment Method in anticipation of subscription or other Service-related charges through various methods.
13(c). Subscription Terms. This paragraph shall apply to you only if you have purchased a subscription to the Service. The length of your billing cycle will depend on the type of subscription that you choose when you signed up for the Service. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle to your Payment Method. You can view the specific details regarding your subscription by visiting your account. In some cases, your payment date may change, for example if your Payment Method has not successfully settled, when you change your subscription plan or if your subscription began on a day not contained in a given month. We will also disclose all applicable terms and conditions to you at sign-up or in subsequent communications with you. We may change our subscription plans and the price of our Service from time to time; however, any price changes or changes to your subscription plans will be communicated to you in advance. If you do not wish to accept the price change or change to your subscription plan, you can cancel your subscription before the change takes effect.
13(d). No Refunds. All fees are fully earned upon payment. Payments are nonrefundable and there are no refunds or credits for partially used subscription periods. However, if you forget to cancel your subscription in time to avoid being charged for the next month, you may apply for cancellation of the fee if you (a) did not use the Service during the time period that corresponds to that fee; and (b) you contact us within five days of being charged.
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:
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.
21. Informal Dispute Resolution. If you have any dispute with us arising out of these Terms, you agree to contact us directly at email@example.com and to include in such email a brief, written description of the dispute and your contact information. If Occipital does not resolve the dispute through good faith negotiations within 30 days of giving us such written notice by email, you may pursue the dispute in accordance with the arbitration clause in Section 22.
22. Arbitration Agreement. Any claims by Occipital, or claims by you that are not resolved by the Informal Resolution procedure described in Section 21 above, arising out of, relating to, or connected with this Agreement must be asserted individually in binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel). This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (a) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (b) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor join or consolidate claims by or for individuals; and (c) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided above) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement. The arbitration proceeding and the results thereof will be kept confidential by each party and not used for any purpose other than a party exercising its rights and fulfilling its obligations with respect to the other party; provided, however that either party may disclose the existence and results of the proceeding: (i) as required by law, rule, or regulation; (ii) to its accountants, attorneys, and other fiduciaries; and (iii) to an arbitrator or third party who has exercised its rights under this Section 22 for use as persuasive authority in other proceedings brought pursuant to this Section 22.
23. Governing Law. This Agreement, including all claims relating to or arising hereof or breach thereof, whether sounding in contract, tort, or otherwise, will be governed and construed in accordance with the laws of the state of Colorado, excluding its choice-of-law principles.
24. 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.
25. Changes to our Terms of Service. This Terms of Service was last modified on October 27, 2023. If we change our Terms of Service, we will update this modification date.
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