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DRONE & VR 360 SERVICES AGREEMENT

This Drone & VR 360 Services Agreement (the “Agreement”) by and between VIGILE INC. dba Drone & VR 360 Services (“Service Provider”), a Matterport Service Provider, and you as the customer (“Customer”) is effective as of the signing date below (“Effective Date”). by sending electronic mail (the “E-mail”) from the “Customer” (the “Customer”). Each of parties to this Agreement may be referred to as “Party” and collectively as “Parties”.

 

1.DESCRIPTION OF SERVICES.


1.1. Overview of Services. Service Provider will provide to Customer the services as outlined in Exhibit A to this Agreement (collectively, the “Services”)

 

1.2.A “Space” is a 3D model hosted on the platform of Matterport, Inc. (“Matterport”) by Service Provider. It can be shared using a URL or embed code.

 

1.3. The Customer understands that Space may have limitations, such that the capturing of multiple buildings/multiple units on a property, or spaces which are not connected by a doorway may not be captured in their entirety in a single scan and may require the creation of a second scan. It is the Customer’s responsibility to inform Service Provider of any such possible challenges in writing, in advance of the start date. If Customer fails to do so, it will be at the sole discretion of Service Provider to determine what can be successfully captured with the camera.

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  • Service Provider will also maintain a Space subscription and hosting for 6 months from the date of the Scan. Should Customer choose to extend the subscription and hosting beyond the first year, Customer must notify Service Provider prior to the end of each calendar year they wish to extend. Service Provider is not responsible in any way to notify Customer, nor shall Service Provider be held liable if Customer does not notify Service Provider to extend hosting.   
     

  • Customer is solely responsible for preparation of each service location, and customer will be solely responsible for any objects or people displayed in any services.       
     

  • Service Provider reserves the rights to use all supplied models Space(s), film and imagery for it’s own promotion in online videos, print advertisements, social media, and website content.

 

1.4. Delivery. Service Provider will provide a URL and embed code for the completed Space(s). Customer understands and agrees that all Space are hosted solely on Matterport’s platform, and Customer will not receive any digital assets for Space. Service Provider will make all of the foregoing Services available to Customer within the stated hours/days in the Agreement.

 

1.5. Capture Services. Hosting Term: Service Provider agrees to process and host the created Space(s) on the Matterport platform for a period agreed upon within the Agreement following the completion of Service Location Preparation. Customer is required to prepare the Service Location in advance of Capture Services, including without limitation:

  • Removing confidential, photos or unwanted items

  • Adjusting furniture and/or decor to desired position

  • Informing the Service Provider of any areas that should be excluded from Capture Services

  • Ensuring the Service Location is free of moving persons, pets, or objects

 

Unless otherwise arranged, a Service Location that has not been properly prepared, in Service Provider’s sole discretion, will be considered unready and the date of any Captures Service must be rescheduled. Service Provider shall not be responsible for the untidiness of any Service Location or for small alignment issues, mirror, window, glass, and reflective views. Customer shall further ensure that the Service Location is accessible upon the day of Capture Service for up to the hours outlined in the Exhibit A. Customer or its representative shall be present at the Service Location or be in direct contact at the time of the Capture Services to approve Service Provider’s interpretation of the Captures Services to be provided.

 

1.6. Cooperation. Customer will cooperate in a reasonable and timely manner in connection with Service Provider’s performance of all Services.

 

1.7. No Guarantee. Service Provider makes no guarantees, expressed or implied, in regard to aesthetic qualities of the completed Services. By entering into this Agreement, Customer acknowledges that the Services are creative works, and as such, reasonable artistic direction will be used in the photographing and editing of the resulting media.

 

2. FEES AND PAYMENT; CANCELLATION AND RESCHEDULING POLICY.

 

2.1. Fees. Customer agrees to pay Service Provider total fees as per all itemized fees outlined in Exhibit A (“Fees”).
 

2.2. Late Fee. Any portion of the Fee not paid within the timelines as described in any Exhibit shall be subject to a five percent (5%) late charge per week until received.

 

2.3. Invoice and Payment of Balance Due. Following completion of the Capture Services, Customer shall pay Service Provider, the remaining Fees owed upon receipt via online invoice. In the event that Customer fails to pay any amount when due, without limiting any other remedies available to Service Provider, the Service Provider will have the right to suspend all applicable links and providing the Services to Customer until such overdue amount is received.

 

2.4. Cancellation and Rescheduling Policy. A minimum of 48 hours prior written notice will be required for Customer’s cancellation of this Agreement or rescheduling of the Capture Service date. In the event that Customer cancels this Agreement with less than 48 hours prior notice to the agreed upon Capture Service date, Customer will be responsible for full payment of all fees.

 

3. PROPRIETARY RIGHTS AND LICENSES.


3.1. Ownership. Service Provider and its licensors own all right, title and interest (including all associated intellectual property rights) in and to: (a) all Services and any technology embodied therein; and (b) any and all look and feel, improvements, updates, modifications, translations, copies, compilations and derivative works related to any of the foregoing. All rights in the foregoing not expressly granted to Customer are reserved by Service Provider and Service Provider’s licensors, and Customer shall make no use of the foregoing except as expressly provided herein. Customer acknowledges that, subject to Section 3.4, Service Provider will have the right to use and distribute any Services in Service Provider’s sole discretion.

 

3.2. Service Provider License to Customer. Service Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license, during the Term, to: (a) use and distribute URLs and embed codes linking to the Space(s) hosted on the Matterport Platform.

 

3.3. Restrictions. Upon any expiration or termination of this Agreement, Customer shall immediately cease all use of the Services and delete all copies of the Services (any content or data derived from the Services) in Customer’s possession or under Customer’s control. Customer shall not: (i) disable or modify any hyperlinks contained in any Services; (ii) alter, remove or destroy any attribution, proprietary markings (e.g., copyright and trademark markings) or confidential legends placed upon or contained within the Services; (iii) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of any software underlying the Services; (iv) distribute, in conjunction with any Services, any content that contains or promotes fraudulent, deceptive or illegal activities, pornography, excessive violence, “hate speech”, malicious code or deceptive advertising; (v) access or use any API provided by Service Provider or Matterport without the prior written authorization of Service Provider & Matterport, or otherwise access Space (and any portion thereof) through any means other than available end-user functionality; or (vi) modify or create any derivative work based on the Services (or any component thereof).

 

3.4. Takedown Service. During the Term, Customer can request at any time that Service Provider designate any Space and other hosted Services as public or private. Any Space or other hosted Service designated as private will be un-accessible and unviewable by the public. Service Provider will promptly comply with such request within forty-eight (48) business hours.

 

3.5. Affiliation with Matterport. Customer acknowledges that: (a) Service Provider is an independent provider of the Capture Services and is not a contractor, employee or agent of Matterport; and (b) Service Provider is making the Services available to Customer under a license between Matterport and Service Provider.
 

3.6. Warranty; disclaimer. Service Provider represents that it shall perform its obligations under this Agreement in a timely and workmanlike manner, consistent with generally acceptable industry standards. In the event of any breach of the foregoing warranty, as Customer’s sole and exclusive remedy, Service Provider shall use commercially reasonable efforts to re-perform its obligations promptly in a manner that cures such breach. EXCEPT FOR THE FOREGOING WARRANTY, THE 3D SERVICES AND CAPTURE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. SERVICE PROVIDER DISCLAIMS, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE 3D SERVICES AND CAPTURE SERVICES. SERVICE PROVIDER DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. IN ADDITION, SERVICE PROVIDER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING: (A) THE APPROPRIATENESS OF THE SERVICES FOR USE IN FOREIGN JURISDICTIONS; OR (B) THE TIMING OF SERVICES PROVIDED TO CUSTOMER. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to Customer. Nothing in this Agreement disclaims any implied warranty that cannot be disclaimed under applicable law.

 

4. LIMITATION OF LIABILITY AND INDEMNIFICATION.

 

4.1. limitation of liability. EXCEPT IN CONNECTION WITH EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, CUSTOMER’S BREACH OF SECTION 3, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES; AND (B) IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY, ITS AFFILIATES OR ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO SERVICE PROVIDER UNDER THIS AGREEMENT. A NEITHER SERVICE PROVIDER NOR MATTERPORT SHALL BE RESPONSIBLE OR LIABLE FOR ANY PERSONAL OR CONFIDENTIAL INFORMATION CAPTURED OR DISPLAYED AS PART OF ANY SERVICES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.

 

4.2. Indemnification. Customer, at Customer’s own expense, will indemnify, defend and hold harmless Service Provider, its corporate affiliates and licensors, and their respective oncers, directors, employees, representatives and agents (each a “Service Provider Indemnitee”) from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising therefrom (each a “Claim”), brought by any third party against a Service Provider Indemnitee to the extent that such Claim is based on, or arises out of: (a) a breach, or potential breach, of any of Customer’s obligations under this Agreement; (b) Customer’s use of the Services; (c) any allegation that Customer has not obtained all consents, approvals, licenses, and permissions necessary for Customer, Service Provider or their respective subcontractors, as applicable, to have access to a Service Location captured in any Service and/or to capture and use imagery of such Service Location; or (d) any alleged or actual fraud, gross negligence or willful misconduct of Customer or Customer’s subcontractors or agents. In the event of a claim in respect of which a Service Provider Indemnitee seeks indemnification from Customer under this Section 4.2, the Service Provider Indemnitee will promptly notify Customer in writing of the claim, cooperate with Customer in defending or settling the claim at Customer’s expense, and allow Customer to control the defense and settlement of the claim, including the selection of attorneys; provided, however, that Customer shall not settle any claim unless such settlement completely and forever releases the Service Provider Indemnitee from all liability with respect to such claim or unless the Service Provider Indemnitee consents to such settlement in writing.

 

5. TERM, TERMINATION AND EFFECT OF TERMINATION.


5.1 Term. This Agreement will take effect on the Effective Date and, unless earlier terminated in accordance with this Agreement, will remain in effect until all of the Services outlined in Exhibit A have been completed (“Term”).

 

5.2. Termination for Breach or Bankruptcy. Either Party may terminate this Agreement immediately by written notice to the other Party upon the occurrence of any of the following events: (a) the other Party commits a material breach of this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party; or (b) the other Party experiences an insolvency or bankruptcy or its property becomes subject to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.

 

5.3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (a) Customer will immediately cease all access to and use of the Services, and the license granted to Customer with respect to the Services shall immediately terminate; (b) Customer shall, within thirty (30) days of expiration or termination, pay to Service Provider all amounts then accrued and payable under this Agreement; (c) unless Service Provider is terminating the Agreement for cause pursuant to 5.3(a), Service Provider shall, within thirty (30) days of expiration or termination, refund to Customer the amount of any unused fees prepaid by Customer. Neither party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement shall not release either party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination. Termination or expiration of this Agreement hereunder by either party shall not limit either party from pursuing any other remedies available to it, including injunctive relief. In the event of a claim of infringement or violation of third-party proprietary rights relating to the Services, the Parties may mutually agree to terminate certain rights granted hereunder.

 

6. GENERAL TERMS.

 

6.1. Force Majeure. Neither party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement (other than a failure to pay fees when due) if such default or delay is caused, directly or indirectly, by any cause beyond such party’s reasonable control (each, a “Force Majeure Event”); provided, however, that the party affected by the Force Majeure Event shall provide the other party with prompt written notice of the Force Majeure Event and use commercially reasonable efforts to minimize the effect of the Force Majeure Event upon such party’s performance; provided, further, that should the performance by either party of its obligations under this Agreement be prevented by a Force Majeure Event for more than thirty (30) days, the other party shall have the right to terminate this Agreement without liability to the non- performing party and receive a refund of any unused fees prepaid by such terminating party, if any.

 

6.2. Complete Agreement.  This Agreement constitutes the complete and exclusive statement of agreement among Service Provider and Customer with respect to the subject matter herein and therein and replaces and supersedes all prior written and oral agreements or statements by and among Service Provider and Customer.  No representation, statement, condition or warranty not contained in this Agreement will be binding on Service Provider or Customer or have any force or effect whatsoever.

 

6.3. Interpretation.  In the event any claim is made by either Service Provider or Customer, relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or their counsel.

 

6.4. Governing Law and Jurisdiction.  This Agreement shall be governed solely by the laws of the State of California. Service Provider and Customer hereby consent to the exclusive jurisdiction of the state and federal courts sitting in California, county of Santa Clara County, in any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement.

 

6.5. Confidentiality.  Customer agrees that they will not at any time publish or disclose to others or use for their own benefit or the benefit of others any confidential information, including but not limited to, compensation considerations, terms of this Agreement, and trade secrets relating to the business of Service Provider, except to such extent as may be necessary in the ordinary course of performing in good faith their particular duties contained in this Agreement and with the prior written consent of Service Provider.


6.6. Notice.  All notices given hereunder shall be in writing via email. Either party may, by like notice, designate a different address for the serving of notices.

 

6.7. Arbitration.  Any controversy or claim arising out of, or relating to, this contract or the breach thereof, shall be settled by arbitration, in accordance with the laws of the State of California, then obtaining, of the American Arbitration Association, and judgment upon the award rendered may be entered in any Court having jurisdiction thereof. Any award concurred in by a majority of the arbitrators or rendered by the sole arbitrator (as the case may be) shall be binding and conclusive on the parties; and a judgment thereon may be entered in the highest court of the forum having jurisdiction thereof.

 

6.8. Attorney Fees.  In the event that any dispute between Service Provider and Customer should result in litigation or arbitration, the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses. In addition to the foregoing award of attorneys’ fees, the prevailing party shall be entitled to its attorneys’ fees incurred in any post judgment proceedings to enforce any such judgment.

 

6.9. Assignment. Customer shall not have the right to assign this Agreement or any part of the results and proceeds of Service Provider's services to any party.

 

6.10. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature.

 

In witness whereof, each party has caused this Agreement to be executed by its duly authorized agent as of the Effective Date of the Agreement distributed and agreed upon by electronic mail.       
 

CEO Vigile Inc. dba Drone & VR 360 Services: _______ Date: _______Client: ______    Date: _______

 

EXHIBIT A

Service Provider agrees to perform the following Services for Customer, as agreed upon in the Agreement.
 

CUSTOMER: ___________________________________    

 

SERVICE LOCATION: ___________________________
 

PROPERTY TYPE:  ______________________________


CAPTURE TYPE:  Interior 3D panoramic photos (digital twin)

 

PROPERTY DETAILS:  Space _______________________  sq.ft.

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WHAT'S INCLUDED*:

  • Customer will have access to a virtual tour with the following features:

  • 4K photo resolution (134 megapixels)

  • Multimedia Menu with all relevant information in one place

  • Custom Branding

  • Google Analytics

  • Google Street View integration

  • ___ Clickable hotspots with text and photo integration*

  • Free hosting for 6 months. 

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* Customer is responsible for providing the necessary content (photo and text description) for each hotspot. This information will be integrated with tags for the selected exhibits if the technical conditions are met.

 

PROJECT IMPLEMENTATION STAGES:

  • Visit to the customer's location at the agreed time to scan selected halls.

  • Scan of the entire facility. The site visit will take approximately: _______ hours.

  • Creating a digital twin, incorporating information received from the Customer and providing a link to access the virtual tour.


TOTAL PRICE: _______ 
 

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