Data Download Terms
This document sets out the terms that apply to the download of a single copy of selected point cloud data (Data) from or via the website app.pointerra.io (Website).
We reserve the right to update or amend these Data Download Terms at any time. You should check this page from time to time to make sure you are aware of any changes. No changes to this document shall amend or otherwise impact the terms applicable to any previous downloads of Data from or via the Website.
This is the entire agreement between Pointerra and you in respect of Data downloaded by you. To the extent of any inconsistency between these terms and any other agreement between Pointerra and you (including without limitation the applicable User Agreement), these Data Download Terms will prevail.
[These Data Download Terms do not apply to downloads of Data held by Pointerra for the purposes of Hosting Services provided to you as part of a Subscription]
The Data are protected by copyright, patent and other intellectual property laws in Australia and overseas. The Data and intellectual property rights therein are owned by third parties and are made available to Pointerra for provision to you under license. Other than expressly set out in the document, no rights or title to the Data or any intellectual property rights therein will pass to you under these Data Download Terms.
The Data may include trade marks which are protected by law. You may not use our trade marks in Australia or internationally without our prior written consent, except to legitimately identify our products or services. You may not remove or cause to be removed any Pointerra logo, watermark or other Pointerra or third party attribution from any Data.
We use reasonable endeavours to ensure that the Data is accurate and up-to-date. But we cannot guarantee the accuracy, currency, suitability, reliability or completeness of the Data, and we accept no responsibility for errors in the Data at any time. Without limiting any of the above, to the fullest extent permitted by applicable law, we will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by Data which is created by a third party.
We also use reasonable endeavours to ensure that the Data is free from viruses, worms or other harmful codes. However, we do not guarantee that Data will be free from viruses, worms or other harmful codes.
Subject to payment of the applicable Fees and paragraph (b), Pointerra grants to the User a worldwide, royalty free, non-exclusive, non-transferable, non-sublicensable irrevocable license to download and use a single copy of the selected Data for your own personal or internal business purposes to:
- create 3D visual models of the Data using applicable point-cloud modelling software or services and 2D images of those models (Visual Content); and
- reproduce, modify, publish or distribute Visual Content in any digital or physical printed form, excluding in connection with any medium to large scale distribution of goods or services for profit.
You must not otherwise use, reproduce, modify, publish or distribute the Data without our prior written consent or as otherwise as allowed in this document, including (without limitation) for resale, download or distribution to the public for any purpose.
If you are purchasing on behalf of your employer or client, then your employer or client can use the Data as set out above. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not receive or use the Data.
You may allow subcontractors (for example, your surveyor or IT service providers) to use Data in any modelling or reporting process related to your final project or end use. These subcontractors may not use the Data or Visual Content for any other purpose.
- Some Data is used, and offered for download by Pointerra, under the terms of a public data license (such as Creative Commons or equivalent license terms) (Public Licence). To the extent that any Data is subject to a Public Licence, the terms of that Public Licence shall apply to your use of that Data, in preference to the license granted in paragraph (a) above. To the extent of any inconsistency with these Data Download Terms, the terms of applicable Public Licences shall prevail.
Credits and attributions
- You must expressly acknowledge Pointerra, in a reasonably prominent manner (by display of the Pointerra logo or other appropriate attribution), as the source of any Visual Content that you use, copy, modify or distribute.
- Without limiting paragraph (a), if and where commercially reasonable the use of Visual Content shall be accompanied by an adjacent credit to the contributor (to the extent this is made available to you) and Pointerra in substantially the following form:
“[Name of Contributor (where provided)] / Use under license from Pointerra.com”
- In all cases the credit shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
- You must not falsely represent that you are the original creator of a work that is made up entirely or substantially of Data or Visual Content.
Except in respect of Data which is subject to any Public Licence, and provided you have not breached the terms of this or any other agreement with Pointerra, Pointerra shall indemnify and hold you harmless against all direct loss, damage, expense or costs (including legal costs) incurred or suffered or to be incurred or suffered by you, as a result of a claim by a third party that your use of the Data infringes or breaches the third party’s copyright.
- promptly notify Pointerra of any claim you receive in respect of any alleged infringement of copyright in relation to the Data by email to firstname.lastname@example.org setting out all details of the claim then known to you (such as, the Visual Content at issue, the name and contact information of the person and/or entity making the claim, and copies of any correspondence received and/or sent in connection with the claim);
- permit Pointerra to conduct the defence of the claim including all negotiations for settlement provided that you shall have the right to participate in any litigation at your own expense; and
- provide Pointerra with any assistance reasonably requested to allow Pointerra to defend the claim.
In order to fulfil its obligations to you under this paragraph, Pointerra will either:
- obtain for you, the legal right to continue to use the Data; or
- replace the Data or any infringing part of it with reasonably equivalent data.
The download of Data may be subject to the payment of fees and charges (Fees). In respect of Data provided under Public Licence, Fees are in respect of services provided us, including without limitation the use of our Website and the provision of data download facilities. All Fees are payable on or prior to receipt of the Data.
All Fees are non-cancellable and non-refundable, except with our express written consent or as required by Applicable Law. Refunds may be considered in the event of technical issues with the Data at the sole discretion of Pointerra. All requests for refunds/cancellations must be made in writing. If the request is approved, Pointerra will issue a credit to your account or credit card. In the event of cancellation, your rights to Data terminate immediately, and you must delete or destroy any copies of the Data in your possession or control.
To the extent that payments are processed on the Website using third party services, you agree to comply with all terms and conditions applicable to your use of such third party payment services.
You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, goods and services taxes and duties imposed by any jurisdiction as a result of this agreement, or your use of any Data.
You acknowledge that personal information provided in the course of accessing the Website (including, without limitation, credit or debit card details provided by you for the purpose of paying Pointerra) may be disclosed to and held by one or more of our third party suppliers and partners (including, without limitation, providers of payment processing services), and used by those third parties in connection with the supply of Download Data. Pointerra will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of Download Data.
No exclusion of Applicable Law
Nothing in these Data Download Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition which:
- is implied or imposed by the Australian Consumer Law (in respect of Users in Australia) or other applicable law (in Australia and any other applicable jurisdiction); and
- cannot be lawfully excluded or limited (Applicable Law).
If the Australian Consumer Law applies to you, you may be entitled to a replacement or refund for a major failure of our service and compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
Subject to Applicable Law, and excluding the indemnity set out in the “Copyright Claims” section of this document, the liability of Pointerra arising out of or in connection with this document, including for:
- any breach of this document;
- any act or omission (including any negligent act or omission) of Pointerra arising out of or in any way in connection with the performance or non-performance of this document;
- any loss, damage or injury resulting from your access to or use of Data; or
- the termination of this document (whether as a result of breach, repudiation or otherwise),
to the extent that it is not expressly excluded, is limited to the Fee paid in respect of the Data.
No liability for consequential losses
- (a) Despite any other clause in this document, and subject to Applicable Law, neither party will be liable to the other for, nor will any indemnity by either party under this document extend to, any Consequential Loss suffered by or claimed against the other Party, including for:
- any breach of this document by a party;
- any act or omission (including any negligent act or omission) of a party arising out of or in any way in connection with the performance or non-performance of this document; or
- the termination of this document (whether as a result of breach, repudiation or otherwise) by a party.
- (b) For the purposes of this document, Consequential Loss means:
- any special, indirect or consequential loss or damage;
- any economic loss in respect of any claim in tort;
- any loss of profits, loss of production, loss of revenue, loss of use, loss of contracts, loss of opportunity, loss of goodwill or wasted overheads whatsoever; and
- any loss arising out of any claim by a third party.
- This provision survives termination of this document.
Subject to Applicable Law, and excluding the indemnity set out in the “Copyright Claims” section of this document, the Data is provided "as is" without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Pointerra does not represent or warrant that the Data will meet your requirements or that its use will be uninterrupted or error free. Without limitation, while we have made reasonable efforts to correctly categorize, keyword, caption and title the Data, Pointerra does not warrant the accuracy of such information, or of any metadata provided with the Data.
The terms of this website will be governed by and construed in accordance with the laws in force in Western Australia, and you unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia. Although Australian websites may be accessed outside of Australia, we make no representation that the content complies with the laws of any other country. If you access this website from outside Australia, you are solely responsible for ensuring compliance with your local laws and for any reliance on our Website content.
This agreement is personal to you and is not assignable by you without Pointerra’s prior written consent. Pointerra may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
- Subject to paragraph (b) below, if a provision of this document or any part thereof is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this document.
- paragraph (a) does not apply if severing the provision:
- materially alters the:
- scope and nature of this document; or
- the relative commercial or financial positions of the parties; or
- would be contrary to public policy.
- materially alters the:
- No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement or part thereof.
- A single or partial exercise or waiver by a party of a right relating to this agreement does not prevent any other exercise of that right or the exercise of any other right.
- A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
This document may only be varied or replaced by a document executed by the parties. This document contains the entire understanding between the parties as to the subject matter of this document. Without limitation, terms set out in any standard form (e.g. purchase orders) provided by you are of no effect.
Last updated 26/07/2017.