This document sets out the terms that apply to subscribers of the Services provided from or via our website(s), including www.pointerra.com, app.pointerra.io and similar sites and subsites (Website). A reference in these Subscription Terms to ‘Pointerra’, ‘we’, ‘us’ or ‘our’ means Pointerra Limited ACN 078 388 155. A reference to ‘you’ or ‘Subscriber’ means you or the entity you represent.
You may change the scope of the Services the subject of this Agreement at any time subject to Pointerra’s prior written consent and subject to agreement and payment of any additional Fees specified by Pointerra in its sole discretion, by the completion of one or more additional Order Forms. Capitalized terms not defined in these terms and conditions have the meaning attributed to them in the Order Form.
Pointerra hereby grants to you, subject to the terms and conditions of this Agreement (comprising these terms and conditions and the attached Order Form), a non-exclusive, non-transferable right to access and use the Services specified on the Order Form and any documentation, product data sheets, rules, and similar materials Pointerra provides to you in connection with the Services (referred to separately as the Materials but otherwise part of the Services) for your personal or internal business purposes only.
The Services are described in further detail below:
- Data Download Services – the service which enables you to download third party point-cloud data from the Website. All data downloaded from the Website using the Data Download Service is provided subject to the Data Download Terms published on the Website from time to time. Data Download Services are subject to additional charges on a case by case basis, according to the volume and type of data selected for download. The scope and specifications of the data download service that is available to you may vary depending on your subscription level, as specified in the Order Form.
- Hosting Services –the service which enables you to upload your point-cloud data to third party cloud-based storage services controlled by Pointerra, subject to the Hosting Terms published on the Website from time to time (Hosted Data). Hosting Services are subject to additional charges on a case by case basis, depending on the volume of stored data, in accordance with the Hosting Terms. Hosted Data will be accessible by you using the Visualization Services, and may be downloaded by you, at no additional charge. The availability of Hosting Services may vary depending on your subscription level, as specified in the Order Form.
- Data Contributions Service – the service which enables you to make your Hosted Data available for viewing and download by other users of the Website, subject to the Contribution License Terms. If and when third parties download your Hosted Data, Pointerra will pay you a Contribution Fee in accordance with the Contribution License Terms. The availability of the Data Contributions Service vary depending on your subscription level, as specified in the Order Form.
- This Agreement shall be effective upon submission of your Order Form and acceptance by Pointerra.
- Subject to the foregoing, the Subscription Agreement shall commence on the Start Date and continue for the Subscription Period (the
Initial Term). Subject to any amendments required by Pointerra, upon expiration of the Initial Term this Subscription Agreement (as amended) shall be automatically renewed for successive periods equal to the Subscription Period (each a
Renewed Term) unless:
- either party provides written notice of termination, at least 30 days before the end of the Initial Term or any Renewed Term, in which case this Agreement shall terminate upon expiration of the Initial Term or Renewed Term in which the notice expires; or
- otherwise terminated under these Subscription Terms. The Term comprises the Initial Term and each subsequent Renewed Term.
- You shall pay Pointerra the Subscription Fee per Subscription Period in the amount described on the Order Form, and in accordance with the Payment Terms set out on the Order Form.
- Pointerra may change the Subscription Fees for each Renewed Term, and will advise you in writing of that change, prior to expiration of the previous Initial Term or Renewed Term. Such advice may be provided at any time by posting the changes to the Website or by email to you.
- Subject to the terms of the Subscription Agreement, the Subscription Fees are non-refundable – there will be no refunds or credits for partial Subscription Period, upgrade/downgrade refunds or account cancellations. If you are not in breach of this Subscription Agreement, and Pointerra elects to terminate the Subscription Agreement or the Services, Pointerra will refund to you any pre-paid fees relating to the portion of the Term remaining as at the effective date of termination.
- You must provide us with accurate billing information and keep this information up to date.
- Fees for the Services are priced in Australian Dollars.
- If the Subscriber makes payments by credit card payments, the Subscriber acknowledges that Pointerra is authorised to deduct all due payments on the dates on which they are required to be made and the Subscriber will continue to remain liable for all payments due and owing under this Subscription Agreement.
- Otherwise, all payments must be made within 14 days of the date of Pointerra’s invoice.
- Fees shall be exclusive of all taxes, levies, or duties imposed by any relevant taxing authorities, unless otherwise indicated. You shall be responsible for paying all taxes, levies, or duties, excluding only taxes based solely on Pointerra’s income.
- If a scheduled Fee payment is not made in full by its due date for any reason, you acknowledge and agree that Pointerra may charge interest for late payment of all outstanding amounts, at the rate specified on the Order Form (or, if this exceeds the maximum rate under applicable law, the maximum rate allowed under applicable law), and/or immediately terminate access to the Service. You shall pay Pointerra’s costs, including reasonable attorney's fees, incurred in collecting overdue payments.
4. Pointerra’s Responsibilities.
- provide you with access to the Services subject to the terms of these Subscription Terms; and
- provide support in accordance with the support service levels described on Support sections of the Website from time to time.
5. Your Responsibilities.
- provide current, complete and accurate information to Pointerra regarding you and your subscription and payment details as may be prompted by any registration or order forms on the Website and any changes to such information during the Term;
- ensure that you do not exceed any maximum number of concurrent users of the Services (Seats) specified on the Order Form(s);
- require that your employees, contractors, agents and other personnel accessing the Services use it only in compliance with all requirements of this Subscription Agreement;
- ensure that your computing and mobile devices, computer network and communication systems (including software and Internet connectivity) are suitably configured, maintained, and operated so as to enable you to effectively access the Services;
- keep secure and confidential the username(s), password(s) and any other information provided to you or by you for the purpose of accessing the Service (Login Information). Unless expressly permitted by this Agreement, or otherwise authorized by Pointerra in writing, you must not share your Login Information with any third party. Any Service provided on an as-required basis (including data downloads under the Data Download Terms and data hosting under the Hosting Terms) entered into using your Login Information will be deemed to be made on your behalf and at your own risk; and
- maintain adequate security measures to prevent unauthorized or inappropriate use of the Services.
6.1. Intellectual Property.
Pointerra, and/or its affiliates and licensors, own all intellectual property rights in and to the Services. Intellectual property rights in or arising from any suggestions, ideas, enhancement requests, feedback, recommendations, templates, widgets, libraries, or other software or information you provide to or jointly develop with Pointerra that relate to the Services shall belong solely, and are hereby assigned, to Pointerra. This Agreement does not grant you any right to use the Pointerra name, the Pointerra logo, or the product names associated with the Services. All rights not expressly granted to you are reserved by Pointerra and its affiliates and licensors.
All title, ownership rights, and proprietary rights in and to third party information accessed by operation of the Service (Content) are the property of the applicable Content owner. This Agreement gives you no ownership rights with respect to Content.
7. Use and Disclosure of Confidential Information.
For the purposes of this Subscription Agreement, Confidential Information means non-public information one party (an Owner) discloses to the other party (the Recipient), whether orally or in writing, that the Owner designates as confidential or that the Owner discloses in connection with this Agreement if the information reasonably should be understood to be confidential given the nature of the information and the circumstance of disclosure. Pointerra’s Confidential Information shall include the non-public aspects of the Services. Confidential Information also includes the non-public terms and conditions of this Subscription Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that
- is or becomes generally known to the public without breach of any obligation to the Owner;
- is known to the Recipient in its compiled form at the time of receipt without breach of any obligation to the Owner;
- is received from a third party without breach of any obligation to the Owner; or
- that is independently developed without using the Owner’s Confidential Information.
7.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Owner,
- the Recipient shall use at least the same degree of care that the Recipient uses to protect the confidentiality of the Recipient’s own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Owner for any purpose outside the scope of this Agreement; and
- the Recipient shall limit access to Confidential Information of the Owner to those of Recipient’s employees, contractors, and agents who need access for purposes consistent with this Agreement.
7.3. Required Disclosure.
The Recipient may disclose Confidential Information of the Owner if the Recipient is required by law to do so if the Recipient first gives the Owner prior notice (to the extent legally permitted) and cooperates with the Owner, if the Owner requests and at the Owner’s cost, to contest the disclosure. If the Recipient is required by law to disclose the Owner’s Confidential Information as part of a civil proceeding to which the Owner is a party, and the Owner is not contesting the disclosure, the Owner will reimburse the Recipient for the Recipient’s reasonable cost of compiling and providing secure access to the requested information.
7.4. Modification, Reverse Engineering, and Derivative Works.
You shall not, and you shall not permit any agent or third party to:
- copy any Materials other than for using the Services in compliance with these Subscription Terms;
- subject to applicable law, decompile, disassemble, or otherwise reverse engineer the Services or determine any source code, algorithms, methods, or techniques used or embodied in the Services or Materials;
- access the Services for the purpose of monitoring its availability, performance, or functionality or for benchmarking, reverse engineering, or other competitive purpose;
- embed the Services in any other application;
- modify, translate, or otherwise create derivative works based upon the Services or copy ideas, features, functions, or graphics of the Services for use in another product or service; or
- remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing in connection with the Services.
7.5. Certain Excluded Uses.
You may not access the Services, and Pointerra may terminate this Subscription Agreement immediately upon written notice, if you now or hereafter during the Term, compete or plan to compete in the business of cloud-based point-cloud visualization solutions. In addition, you shall not:
- interfere with or disrupt the integrity or performance of the Services;
- exceed the maximum number of concurrent users of the Services (Seats) specified on the Order Form(s); or
- gain or attempt to gain unauthorized access to the Services or its related systems or networks for any reason whatsoever.
8. Termination or Suspension.
9.1. Service is advisory only.
You acknowledge and agree that the Services are only advisory in nature. Pointerra does not itself collect or create the 3 dimensional point-cloud data in relation to which it provides the Services. The Services are in part based on data provided by third parties and other subscribers and customers of the Service, and is not necessarily complete or accurate. You acknowledge and agree that provision of the Services is subject to, and dependent upon, adequate delivery of products and services by the applicable third party providers and you. To the fullest extent permitted by applicable law, Pointerra will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by third party data, services or you, except to the extent caused by the misconduct or negligence of Pointerra. Without limiting the generality of the foregoing, you may not use the Services for high risk activity, including without limitation
- rail, air, marine, or space travel;
- lifesaving, life critical or emergency response situations;
- insurance underwriting; and
- critical health and safety control equipment, and any such use is a violation of this Agreement and is at your sole risk.
9.2. Limitation of liability.
To the fullest extent permitted by applicable law, Pointerra will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by third party data, services or you, except to the extent caused by the misconduct or negligence of Pointerra.
Without limiting the generality of the foregoing, you may not use the Services for high risk activity, including without limitation (a) rail, air, marine, or space travel; (b) lifesaving, life critical or emergency response situations; (c) insurance underwriting; and (d) critical health and safety control equipment, or (e) any purpose or use which is listed in the Disclaimers section of our Website from time to time. Any such use is a violation of this Agreement and is at your sole risk.
9.4. Right to Modify.
From time to time Pointerra may without notice to you make changes to the Services as Pointerra decides in its sole discretion are required to maintain and/or improve the quality of its products or services, or which result from changes to data or services provided by third parties.
9.5. No other warranties.
Pointerra does not warrant
- that the Services will be uninterrupted or error-free; or
- that Pointerra’s commercially reasonable efforts will be adequate to correct any defects in the Services.
10. Third party terms.
Pointerra engages third party providers to provide its products and services, including the Services. You shall comply with all requirements and restrictions that such third party providers may impose on you directly, or indirectly by imposition on Pointerra, in relation to their respective products and/or services, whether applicable at the time of, or subsequent to, the Start Date. For your convenience, Pointerra has set out here links to the terms and conditions of these third party providers that you are required to comply with. Third party providers and their terms of supply may change from time to time during the Term of the Agreement.
11. Intellectual Property Indemnity.
Subject to the limitations set forth in this Agreement, (including without limitation, in paragraph 15 below), Pointerra shall defend you, indemnify you, and hold you harmless from all liabilities and reasonable expenses (including but not limited to attorney fees) judgments, fines, or penalties that you incur as a result of any claim made against you by a third party that the Services, as used within the scope of this Agreement, infringes the intellectual property rights of that third party (Claim). If you believe you are entitled to indemnification, you must
- notify Pointerra in writing of the claim promptly upon learning of the Claim;
- provide Pointerra with sole control of the defense of the Claim and all related settlement negotiations; and
- cooperate with Pointerra, at Pointerra’s expense, in defending or settling the Claim. In connection with such indemnification, Pointerra, at Pointerra’s sole option, may
- obtain for you the right to use the Service in accordance with this Agreement; or
- use commercially reasonable efforts to make the Service non-infringing without materially diminishing the Service’s utility to you.
Pointerra shall have no liability for any claim of infringement arising out of your misuse of the Service or otherwise in breach of this Agreement. This Section states Pointerra’s entire liability and your sole and exclusive remedy for infringement of third party intellectual property rights in respect of the services.
12. Your indemnity.
You shall indemnify and hold Pointerra and Pointerra’s licensors, and their respective parent companies and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liabilities and expense (including attorney fees and costs) arising out of or in connection with a claim arising from your breach of this Agreement or any terms imposed by Pointerra’s third party data suppliers.
13. Liability Exclusions
13.1 No exclusion of Applicable Law
Nothing in these Subscription 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.
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.
13.2 Liability cap
Subject to Applicable Law, and excluding the indemnity set out in paragraph 11 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 the Services; 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 Services.
13.3 No liability for consequential losses
- 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.
- 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 paragraph 11 of this document, the Services are 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.
Any notice this Agreement requires or permits a party to give to the other party shall be in writing. Each party shall ensure that the other party has a current address, fax number, telephone number, and electronic mail address at which the party will receive notice (Contact Information). Each party shall make an ordinary, good faith effort to ensure that the intended recipient actually receives the notice. In any event, notices delivered by post shall be deemed to be received with 3 business days of posting to an address within the same country and within 7 business days to an international address, and 1 business day after the time the machine on which that facsimile or email is transmitted displays or records confirmation that transmission has been completed A party who fails to accept notice or to provide current Contact Information waives any right to complain about any failure to deliver notice to a particular address.
15. Force Majeure.
Pointerra and Pointerra’s affiliates and licensors shall not be liable for any delay or failure in the performance of obligations that arises out of causes beyond its reasonable control, including but not limited to electrical and or energy outages, Internet failures, computer failures, communications failures, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, and severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties.
This Agreement may not be amended or otherwise modified except pursuant to a written document, signed by the parties to this Agreement, unambiguously evidencing the intent to amend or modify this Agreement.
You may not assign this Agreement or your rights or obligations under this Agreement, or license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available the Service or any part of the Service to any person or party, whether by operation of law or otherwise, without Pointerra’s prior written consent which Pointerra in its sole discretion may withhold.
18. Equitable Remedies.
Both parties agree that any breach of this Agreement may cause irreparable damage to the non-breaching party and that, in the event of such breach, and in addition to any remedies at law, the non-breaching party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to enforce this Agreement, without the requirement of posting a bond or undertaking or proving injury as a condition of relief.
This Agreement shall be governed by the law of the jurisdiction identified on the Order Form, without regard to any choice or conflicts of law provisions. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts located in the jurisdiction identified on the Order Form. No text or information set forth on any “purchase order, preprinted form, or other document that is not part of this Agreement shall add to or vary the terms of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Pointerra and you as a result of this Agreement or your use of the Service. The failure of Pointerra to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Pointerra in writing. This Agreement comprises the entire agreement between you and Pointerra and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter hereof. To the extent of any inconsistency between an Order Form and these terms and conditions, the terms and conditions of the Order Form will prevail.
Last updated 26/07/2017.