1. AGREEMENT BETWEEN YOU AND SMARTPICTURE; CERTAIN DEFINITIONS
The following words have the following meanings: “SmartPicture” means Smart Picture Technologies, Inc., a Delaware corporation; “PLNAR App” means the mobile application which you download to your mobile device and use to generate room measurements and reports, which also includes all Sponsored Apps; “PLNAR Deliverables” means the Room Models, Room Reports and any estimates, measurements, reports, models, renderings, analytics and all products and services related thereto which ordered by or otherwise made available to you; “Images”means the photos, images and other data you submit or otherwise provide to SmartPicture in connection with your use of the Software and Services; “SmartPicture Cloud Services” means the cloud services made available by SmartPicture under this Agreement, including your ability to use, to view, and to manage the Deliverables generated through the use of the Software. “Room Information” means Registration Information, Images, Room Models, Room Reports and the information contained therein; “Room Models” means SmartPicture’s 2D and 3D reconstruction and associated measurements of homeowner or commercial rooms, generated through the use of the SmartPicture Cloud Services and production process; “Project Report”means the digital and hard copy structure and measurement report of the subject property identifying lines, objects and measurements; “Registration Information”means your email address or other login information that is provided upon registration when you create your user account and any additional contact information submitted in connection with a request for a report or otherwise through the PLNAR App; “Service Provider”means a professional contractor or dealer who downloads and uses either the PLNAR App or a Sponsored App to obtain Room Information in respect of persons and properties other than their own; “Software and Services” means collectively, the SmartPicture Cloud Services, PLNAR App, and the PLNAR Deliverables; “Sponsor”means a SmartPicture licensee who has contracted with SmartPicture to deploy a Sponsored App; “Sponsored App” means the PLNAR App branded, distributed and maintained for a Sponsor.
2. REQUIREMENTS OF THE PLNAR APP
The PLNAR App is only compatible with those smartphones and operating systems identified and certified by SmartPicture from time to time. The use of the PLNAR App requires and utilizes internet connectivity and data. Carrier and provider rates for data may apply and you are responsible for any such charges. Use of the PLNAR App could result in significant data usage. The functional use of the PLNAR App and the production of Project Reports and other PLNAT Deliverables may be dependent on the data related to geographic location and geo-positional data, and you acknowledge and agree that any failure to provide (or make accessible) that data may limit the functionality of the PLNAR App and the generation of Project Reports and other PLNAR Deliverables. The Software and Services are dependent on the underlying Apple operating systems, placement of the Augmented Reality (AR) segments by the end user and the other data and information required by the PLNAR App. You acknowledge and agree that any failure to properly provide such data and information may limit or prevent the functionality of the PLNAR App and the ability of SmartPicture to deliver Project Reports and other PLNAR Deliverables. SmartPicture has no liability for errors, unreliable operation, or other issues resulting from use of the PLNAR App or PLNAR Deliverables on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the PLNAR App or PLNAR Deliverables on Modified Devices will be at your and the Service Provider’s sole and exclusive risk and liability.
3. SPONSORED APPS; USE
- process and manage your purchase and use of our products and services;
- respond to your inquiries or requests;
- create and deliver personalized promotions;
- communicate with you by mail, telephone, facsimile, e-mail, mobile alerts, SMS text messaging or other reasonable means about SmartPicture or the applicable Sponsor and its affiliates;
- communicate with you, including by mail, telephone, facsimile, e-mail, mobile alerts, SMS text messaging or other reasonable means in connection with SmartPicture or the applicable Sponsor and its affiliates marketing efforts; and
- further SmartPicture or the applicable Sponsor and it affiliates business purposes, such as to perform data analysis, audits, fraud monitoring and prevention, to enhance, improve or modify the services, to identify usage trends, determine the effectiveness of promotional campaigns, to initiate additional offers available and to operate and expand business activities.
4. NOTICE AS TO INFORMATION SHARING
IF YOU HAVE DOWNLOADED AND/OR ARE USING THE PLNAR APP, YOU HEREBY AGREE THAT ALL ROOM, PROPERTY OR PROJECT INFORMATION MAY BE MADE AVAILABLE TO SPONSORS, THEIR AFFILIATES AND/OR APPLICABLE SERVICE PROVIDERS. YOU UNDERSTAND AND AGREE THAT YOU MAY BE CONTACTED BY SUCH SPONSORS OR THEIR AFFILIATES OR SERVICE PROVIDERS FOR BUSINESS AND MARKETING PURPOSES. IF YOU DO NOT AGREE TO THE SHARING OF YOUR PROPERTY INFORMATION OR DO NOT WISH TO BE CONTACTED BY SPONSORS OR THEIR AFFILIATES OR SERVICE PROVIDERS, DO NOT DOWNLOAD OR REGISTER TO USE THE PLNAR APP.
IF AT ANY TIME YOU DESIRE FOR SMARTPICTURE NOT TO SHARE YOUR PROPERTY INFORMATION WITH ANY SPONSOR, SPONSOR AFFILIATE, SERVICE PROVIDER OR OTHERWISE, YOU CAN OPT-OUT BY EMAILING SMARTPICTURE AT firstname.lastname@example.org
IF YOU ARE A SERVICE PROVIDER WHO HAS DOWNLOADED AND/OR IS USING A SPONSORED APP, YOU ALSO HEREBY ACKNOWLEDGE AND CONSENT TO THE SPONSOR’S ABILITY TO ACCESS, DISCLOSE, RESTRICT, MONITOR, COMPILE INFORMATION AND GENERATE REPORTS FROM YOUR USE OF THE SPONSORED APP AND THE SOFTWARE AND SERVICES.
5. LIMITED RIGHT TO USE THE SOFTWARE AND SERVICES
6. NO UNLAWFUL OR PROHIBITED USE
(c) You represent and warrant that (i) the PLNAR App will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist-supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
7. RIGHTS AND RESPONSIBILITIES FOR IMAGES AND ACCOUNTS
(a) You hereby acknowledge and agree that any Images or Room Models may be viewed by the general public and will not be treated as private, proprietary or confidential. By submitting or providing any Images or Room Models to SmartPicture through the PLNAR App, you represent and warrant to SmartPicture that you own or have all necessary rights, permissions, and licenses to submit and provide the Images and Room Models, and grant to SmartPicture the license and rights granted herein. The forgoing representation includes, but is not limited to a representation and warranty that you own or have the necessary rights (including any necessary releases) to grant all rights granted herein in relation to any Images and intellectual property pictured in any Images that you submit or provide. In addition, if you provide any Image or Room Model that is protected by copyright, you represent that you have obtained any necessary permissions or releases from the applicable copyright owner.
(b) You hereby grant to SmartPicture and its affiliates, licensees, agents, and sub-licensees, without compensation to you or others, a perpetual, irrevocable, non-exclusive, royalty-free, transferable, assignable, sub-licensable, worldwide license, to copy, adapt, create derivative works of, reproduce, incorporate, distribute, publicly display or otherwise use or exploit such Images throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such Images, and such license may not be revoked for any reason. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Images submitted by you. For each Image or Room Model, you agree to provide accurate and complete information and represent that you have all rights necessary to grant SmartPicture the license and rights in this paragraph. You are solely responsible for all Images submitted to SmartPicture through your SmartPicture user account or that you otherwise make available through the Software and Services.
(d) You may provide suggestions, comments or other feedback (collectively, “Feedback”) to SmartPicture with respect to its products and services, including the Software and Services. Feedback is entirely voluntary. In the event you furnish any Feedback to SmartPicture, SmartPicture may use Feedback for any purpose without obligation of any kind. SmartPicture may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant SmartPicture an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with SmartPicture’s business, including the enhancement of Software and Services.
8. RIGHTS AND RESPONSIBILITIES OF SERVICE PROVIDERS
9. FREE, PROMOTIONAL OR BETA TEST ACCOUNTS
10. UNAUTHORIZED ACCESS.
You are solely responsible for, and SmartPicture will bear no responsibility for, unauthorized access to or use of the PLNAR App or account by any other person. SmartPicture shall be entitled to rely on your username and password to determine whether you are an authorized user and liable to pay any fees associated with orders for Project Reports or other PLNAR Deliverables. You may not share your account with anyone.
The fees and other charges, if any, for the Software and Services and any PLNAR Deliverables are set forth on the order form or page on which you purchased such products and services (the “Order Documentation”). The fees set forth on the Order Documentation are exclusive of all international, federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes now in force or enacted in the future, and you shall pay any such tax (excluding taxes on SmartPicture’s net income) that SmartPicture may be required to collect or pay now or at any time in the future with respect to such fees. Payment of the amounts due to SmartPicture shall be made in accordance with the payment method and credit terms set forth on the Order Documentation. If you have provided a credit card to SmartPicture, you authorize SmartPicture to charge your credit card with the amount of any purchase of Software or Services or PLNAR Deliverables. The amount paid in respect of any Software and Services or PLNAR Deliverables is non-refundable and the Software and Services and PLNAR Deliverables are non-returnable. Any amount not paid within thirty (30) days following SmartPicture’s invoice shall bear a finance charge at the rate of 1½% per month.
12. SUBSCRIPTION PLANS
Annual subscription licenses are charged on a per-user basis, based upon the number of users in your account. You can add additional per-user subscription licenses at any time. Added licenses are priced at the rates available at the time of purchase and prorated based on the days remaining in your annual contract. All subscription licenses will co-terminate and renew automatically on your annual contract renewal date, until you cancel.
Your annual subscription for your selected subscription plan will start when SmartPicture confirms your payment and will continue for a period of one year. Annual subscriptions are either payable upfront (at the specified discount), or billed monthly in twelve equal payments, as applicable. You may upgrade or downgrade your account to a higher or lower plan at any time and adjusted charges, prorated based on the days remaining in your annual contract, will be reflected in your next invoice. At the end of the annual subscription period, SmartPicture will sign you up and bill you for an additional subscription term of one year (payable annually or monthly, as applicable) at the current rates for your subscription plan.
Subscriptions are non-cancelable and non-refundable. Subscription terms and pricing are subject to change. New pricing takes effect upon renewal of your subscription.
13. PRODUCTION AND DELIVERY OF PLNAR DELIVERABLES.
SmartPicturedoes not guarantee the production and delivery of PLNAR Deliverables. If SmartPicture is unable to produce a PLNAR Deliverable due to your failure to submit the required Images, data, model or other required information, or for any other reason, you will receive an email stating that your order cannot be processed and you will not be charged for your order. Once a PLNAR Deliverable is successfully produced, you will be charged for the order at the time the Project Report is delivered to you.
Project Reports shall be delivered through the PLNAR App, by email in PDF format and if you are licensed to use the SmartPicture Cloud Services, will also be available through the SmartPicture Cloud Services. Other PLNAR Deliverables will be made available either in the PLNAR App, by email or through the SmartPicture Cloud Services or all of the foregoing.
14. LINKS TO THIRD PARTY SITES
The SmartPicture Cloud Services and PLNAR App may contain links to other Websites (“Linked Sites”). The Linked Sites are not under the control of SmartPicture and SmartPicture is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. SmartPicture is not responsible for webcasting or any other form of transmission received from any Linked Site. SmartPicture is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SmartPicture of the site or any association with its operators.
15. INTELLECTUAL PROPERTY
The Software and Services, including all Property Reports and other PLNAR Deliverables, are the property of SmartPicture, and subject to the copyright and other intellectual property rights of SmartPicture and its licensors. All rights reserved. The names of actual companies, products, and services mentioned herein or provided or offered as a result of the Software or Services may be the trademarks of their respective owners, including but not limited to the applicable Sponsor or its affiliates. Any rights not expressly granted herein are reserved.
16. NO WARRANTY; LIABILITY DISCLAIMER
SMARTPICTURE, OUR AFFILIATES, AGENTS, SPONSORS, OUR SPONSORS’ AFFILIATES AND ANY SERVICE PROVIDERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) RELATING TO (1) ANY RECOMMENDATIONS/REFERRALS PROVIDED TO YOU VIA THE SOFTWARE AND SERVICES AND (2) ANY PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE PLNAR DELIVERABLES, PROVIDED BY SMARTPICTURE OR ANY OF THE SPONSORS, SPONSORS AFFILIATES OR SERVICE PROVIDERS.
THE SOFTWARE AND SERVICES AND SERVICE DELIVERABLES ARE PROVIDED “AS IS,” AND YOU AGREE TO USE THEM AT YOUR OWN RISK. SMARTPICTURE, OUR AFFILIATES, AGENTS, SPONSORS, OUR SPONSORS AFFILIATES AND ANY SERVICE PROVIDERS MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, CONTENT, QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS, USE OR RESULTS TO BE OBTAINED FROM THE SOFTWARE AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION CONTAINED IN OR GENERATED BY THE SMARTPICTURE CLOUD SERVICES OR PLNAR APP OR CONTAINED IN ANY PROPERTY MODELS, PROPERTY REPORTS AND OTHER PLNAR DELIVERABLES. SMARTPICTURE (INCLUDING ITS SPONSORS, SPONSORS’ AFFILIATES, ASSIGNEES, SUBSIDIARIES, AFFILIATES, AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVES) SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY IN RESPECT TO ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION, ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THIS AGREEMENT OR THE SOFTWARE AND SERVICES, INCLUDING PLNAR DELIVERABLES, OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE AND SERVICES, INCLUDING THE PLNAR DELIVERABLES, ANY DEFECT OR ERROR IN THE FOREGOING, OR ANY BREACH OF THESE TERMS AND CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. IN ANY EVENT, THE AGGREGATE LIABILITY OF SMARTPICTURE, INCLUDING THE SMARTPICTURE PARTIES IDENTIFIED ABOVE, WHETHER IN CONTRACT OR TORT, SHALL NOT EXCEED THE FEES, IF ANY, PAID BY YOU FOR THE SPECIFIC SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY IN THREE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
17. MODIFICATIONS; TERMINATION/ACCESS RESTRICTION
SmartPicture reserves the right, in its sole discretion, to terminate your access to the Software and Services or any portion thereof at any time, without notice. SmartPicture may make changes or alterations to the Software and Services or discontinue all or any portion of them at any time, without notice.
18. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
SmartPicture – Copyright Notices
700 East 11th, St. Suite 200
Austin, TX 78701
The DMCA provides that you may be liable for damages (including costs and attorney’s fees) if you falsely claim that Content is infringing your copyrights. We recommend contacting an attorney if you are unsure whether any Content is protected by copyright laws.
To the maximum extent permitted by law, this agreement is governed by the laws of the State of Texas, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in Travis County, Texas, U.S.A. in all disputes arising out of or relating to the use of the Software and Services. Use of the Software and Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SmartPicture as a result of this agreement or use of the Software and Services. SmartPicture’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of SmartPicture’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Software and Services or information provided to or gathered by SmartPicture with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and SmartPicture with respect to the Software and Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and SmartPicture with respect to the Software and Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
20. NO LIABILITY FOR THIRD PARTIES.
Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the PLNAR App, and their respective affiliates, suppliers, and licensors (collectively, the “Third Parties”) are not parties to this Agreement and they do not own and are not responsible for the PLNAR App. You are responsible for complying with all application store and other applicable Third Party terms and conditions. YOU AGREE (I) THE THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE PLNAR APP, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE PLNAR APP, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE THIRD PARTIES ARISING OUT OF THE PLNAR APP AND THIS AGREEMENT. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the PLNAR App or your possession and use of the PLNAR App infringes a third party’s intellectual property rights, the Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
21. LOCATION-ENABLED FEATURES.
Certain location-enabled functionality made available in the PLNAR App is provided by Google Inc., Apple Inc., and/or other third party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time):http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties of any kind.