Terms of Service

These Terms of Service set forth the terms and conditions between Administrator and the Customer who agrees to these Terms of Service to use the Administrator’s service. Administrator and Customer are referred to herein each individually as a “Party” and collectively the “Parties.” In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Acceptance of Terms
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1.1. Oculo Technologies Limited with its registered office in 63-66 Hatton Garden, Holborn, London, United Kingdom, EC1N 8LE, tax identification number VAT UK: 342 1474 25 and company number 12146113 (“Administrator”) which owns and operates Oculo Service and Application which allows users to create interactive panoramas of construction sites (“Service”) and Customer enter into this agreement subject to the following Terms of Service (“Terms”). The Terms govern Customers contractual relationship with Administrator, including but not limited to the use of Administrator’s website, as well as the use of the Service. Parties create legally binding obligations and should review them carefully before accessing the Application or using any of the Service.

2. Scope

2.1. Administrator will provide Customer with online access to and use of the Service via the internet by use of a Customer-provided browser or the mobile application.

2.2. Administrator is a professional service intended for business purposes only. Customers state that they use the Service only commercially and not as an individual consumer.

2.3. Subject to the terms and conditions of this Agreement and the payment of the Fees as specified in the Terms of Service, Administrator grants Customer a limited, non-exclusive, non-transferable right to allow Customer’s Authorized Users (as defined below) to access and use the Service during the Term solely for Customer’s internal business purposes. “Authorized Users” means these employees, agents and independent contractors of Customer who are authorized by Customer to use the Service.

2.4. This Agreement grants Customer only the right to use the Service as set forth herein, and does not convey or transfer title or ownership of the Service, any underlying technology or software, or any intellectual property rights in any of the foregoing to Customer. Customer is responsible and liable for its Authorized Users’ compliance with and/or breach of the terms of the Agreement. All rights not expressly granted herein are reserved by Administrator, and no other licenses are granted herein by Administrator by implication, estoppel or otherwise.

2.5. Customer is responsible for providing connectivity and equipment. Customer is responsible for providing its Authorized Users with an internet connection as well as currently-supported browsers and any necessary equipment or hardware (such as adequate video cameras) needed to access the Service.

2.6. The Application, Service and other contents are offered “AS IS”, and Administrator is not liable for or does not provide any guarantee as to accuracy, completeness, or reliability thereof.

2.7. Save in relation to Customer Data, Administrator owns all the information, data, documents and any other output results generated by queries, data feeds, and any use of and access to the Service by Customer (collectively “Results”) to provide and improve the Service. Customer has the right to request deletion of all Customer Data (as defined in section 7) at anytime during the Service or after its termination.      

2.8. Administrator will have no responsibility for any decisions made on the basis of Results or for completeness or accuracy of the Results or for their usefulness for Customer’s purposes.

2.9. The Customer is solely responsible for ensuring that the service is appropriate and suitable for his needs. The Customer agrees that the Administrator does not warrant that any particular result will be achieved, or achievable by any given date as result of the Administrator. Administrator does not warrant that the Customer’s use of the Service will be uninterrupted or error-free.

3. Access and Security

3.1. The Customer wishing to use the Service must create an account in the Service. The Customer shall create only one account for each Authorized User, and in the event of discovery that multiple accounts have been created (save in relation to User accounts) without a justifiable reason, all of such accounts shall be terminated and the Customer shall not be refunded. Customer may create additional Accounts for his Authorized Users. Before Customer begins using the Service, he must accept these Terms of Service.

3.2. Administrator will provide Customer with passwords and other credentials required to enable Customer’s Authorized Users with access to the Service.

3.3. The Administrator  will maintain all commercially reasonable administrative, physical and technical safeguards designed to help protect the security of its internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. Neither Party is liable for breaches of security to the extent caused by the other Party’s (or in the case of Customer, an Authorized User’s) failure to secure its networks or any access information, including login credentials and passwords. Customer is solely reliable for any actions of his Authorized Users, in particular he will use all commercially reasonable endeavours to ensure that Authorized Users will not introduce any malicious software into the Service which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, would cause Service to be destroyed, damaged, or rendered inoperable.

3.4. Customer is solely responsible for maintaining the security and confidentiality of its Authorized User’s login information and credentials for its subscription to the Service, and is responsible for any use of the Service utilizing such information and credentials. Login credentials and passwords are assigned on a named user basis and may not be shared between multiple individuals. Upon written notification to Administrator, Customer may reassign credentials to new named Authorized Users. Customer may not:

• a. permit login password codes to be cached in proxy servers and accessed by individuals who are not Authorized Users, or
• b. permit access to the Service through a single identification or password code being made available to multiple users on a network.

4. Fees

4.1. Customer will pay the Administrator all undisputed fees (based on the agreed quotes and relevant purchase orders), 30  days from the date of receipt of invoice. Applicable taxes (Value Added Tax, Sales Tax, etc.) will be added to these fees.

4.2. The Customer can change the service packages it obtains hereunder, in accordance with the Terms of Service. Payments relating to the Service Fee are non-refundable in cases of cancellation of the Service by the Customer or switching to a lower-fee Service category. Switch to a Service category with a lower Service Fee will be performed at the relevant period-end, and switch to a Service category with a higher Service Fee will be performed immediately at the request of the Customer and the fee difference will be charged separately to the Customer.

5. License

5.1. Administrator owns all right, title and interest in and to:

• a. the Service (and any and all developments, modifications, and derivative works of the Service),
• b. any improvements, modifications, suggestions, work product, concepts, inventions, information, video drawings, designs, programs, or software (whether developed by Administrator, Customer, either alone or with others) for the purpose of using the Service,
• c. any materials provided by Administrator to Customer with respect to the Services, including but not limited to any documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Administrator or its suppliers, such as text, graphics (including the underlying web-presentation code of the Service), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Administrator to provide the Service to Customer, and
• d. all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing, relating to the Service (collectively “Administrator Property”).

5.2. These Terms are not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Administrator Property are transferred to the Customer.

5.3. Administrator hereby grants to Customer a limited, non-exclusive, non-transferable license to use Administrator Property developed as part of the Service for that entity’s use of the Service and solely for purposes of using the Service in accordance with the terms of this Agreement during the Term. Any Administrator Property related to Service will be deemed to constitute part of the Service and will be subject to all terms and provisions set forth in this Agreement or otherwise applicable to the Service, including terms and provisions related to use rights and restrictions, ownership and distribution of the Service.

5.4. Customer may print, copy and internally distribute program documentation, user manuals, product technical manuals and other information (either provided by Administrator or made available by Administrator online) describing the operation and use of the Service if and as available (the “Documentation”), for its internal business purposes only; provided that Customer replicates all copyright and other proprietary rights notices contained in the original copy of the Documentation. Any Documentation and any copies made are the property and Confidential Information of Administrator.

5.5. The Service constitute protected copyrighted material and valuable trade secrets of Administrator. Accordingly, Customer will not:

• a. authorize or permit use of the Service or Documentation by persons other than its Authorized Users;
• b. sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Service;
• c. use or access the Service for the purpose of building a competitive product;
• d. copy, frame, modify or create any derivative works of the Service (or any component, part, feature, function, user interface, or graphic thereof) or Documentation, except with the prior written consent of Administrator or to the extent such restriction is prohibited by applicable law;
• e. decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Service is compiled or interpreted;
• f. use the Service as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SaaS offerings;
• g. perform or disclose any benchmark or performance tests of the Service without Administrator’ prior written consent;
• h. perform or disclose any security testing of the Service or associated infrastructure without Administrator’ prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;
• i. remove or modify any program markings or any notice of Administrator’ or its licensors’ proprietary rights;
• j. use the Service in violation of applicable laws;
• k. send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;
• l. send or store malicious code in connection with the Service;
• m. interfere with or disrupt performance of the Services or the data contained therein;
• n. attempt to gain access to the Service or its related systems or networks in a manner not set forth in the applicable Documentation; or
• o. cause or permit any Authorized Users or any other party to do any of the foregoing.

6. Apple and Android Devices
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‍6.1. The following terms apply when Customer accesses the Service via Application obtained from either the Apple Store or Google Play (each an “App Distributor”).

6.2. The license granted is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service;
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6.3. Administrator is responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Service or as otherwise required under applicable law, and the Customer acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application;

6.4. In the event of any failure of the mobile application to conform to any applicable warranty, Customer may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application;

6.5. Customer represent and warrant that (i) they are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Customer are not listed on any U.S. government list of prohibited or restricted parties;

6.6. Customer must comply with applicable third-party terms of agreement when using the mobile application, e.g., if they are using a VoIP application, then must not act in violation of their wireless data service agreement when using the mobile application; and

6.7. Customer acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Service, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Service  against Customer as a third-party beneficiary thereof.

7. Customer Data
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7.1. As between Customer and Administrator, Customer owns all right, title, and interest to the specific data and information about the Customer, and its employees submitted, processed, or stored by Customer and Authorized Users using the Service (the “Customer Data”).
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7.2. Customer is solely responsible for the accuracy and quality of the Customer Data. The Parties agree that under no circumstances will the Administrator be responsible or have any liability for Customer’s or an Authorized User’s use of the Customer Data. Customer and each Authorized User are responsible for updating its own Customer Data.
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7.3. Customer hereby grants to Administrator a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, and make derivative works based upon, any and all Customer Data exchanged under this Agreement to improve the Service. For the avoidance of doubt, this permission shall not include Customer Data itself (camera footage, 3D models, project drawings), owned by the Customer who can request its deletion at any time.

8. Term and Termination
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8.1. These Terms of Service shall commence on the Commencement Date (triggered by the Customer submitting a written acceptance of the quote proposal or issuing a purchase order) and shall continue unless or until terminated by the Customer giving not less than one month’s written notice (or unless terminated earlier in accordance with this clause 8 or otherwise in accordance with the provisions of this Agreement).
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8.2. The Terms of Service shall remain in force as long as the Customer receives the Service (10 years after the completion of the last project included in the scope of Service, unless otherwise agreed). In cases where the Service is offered as a free trial, the Service free trial period will automatically terminate if the Customer fails to communicate payment details to the Administrator despite the notification from Administrator towards the end of the period.
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8.3. Each Party has the right to terminate the Service(s) and/or these Terms of Service any time upon the giving of not less than 30 days written notice to the other. In such an event, neither Party may claim anything from the other party except in relation to their accrued receivables or for material breaches of contract during the Service

8.4. Termination shall be effective upon communication by either party to the other a written notice confirming the  termination

8.5. In the event that either Party is in material breach of these Terms of Service, and fails to remedy such breach within 30 days from receipt of a written notice of such breach, the non-defaulting Party shall become entitled to terminate this Terms of Service agreement partially or completely. At its discretion, the Administrator may partially or completely suspend the Service within said period or until remedy of said breach.

8.6. Either Party may terminate this Agreement in the event that the other Party becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986; is unable to pay its debts within the definition of section 123 of the Insolvency Act 1986 or if the Service Provider has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets or income and/or has passed a resolution for its winding up or is the subject of a petition presented to court for its winding up.
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The Administrator may terminate this Agreement in the event that the Customer fails to settle due undisputed fees within 14 days of a written notice from the Administrator stating that these undisputed fees have not been paid.

8.7. Upon termination of the Customer’s account:

a. The Customer must immediately settle all undisputed and due fees and payments incurred up through the effective date of termination.

b. The Administrator may permanently delete the Customer’s Account, including all information and data it contains save that the Administrator shall first provide all reasonable assistance and cooperation to the Customer to ensure the successful transfer of all customer data in its possession and control to the Customer.

8.8. Provisions in these Terms that by their nature are intended to survive termination of these Terms, will so survive, including the following sections: License, Customer Data, Term and Termination, Limitations on Damages, Force Majeure, Final Provisions, confidentiality, data protection.

8.9. Termination or expiry of the Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination. In the event that the Service or the Terms of Service are terminated for a reason attributable to the Customer, no amount paid in advance by the Customer shall be refundable. Where the Customer terminates for a reason attributable to the Administrator then the customer shall be entitled to a refund of any fees at has already paid to the Administrator for Services not received.

9. Limitations on Damages
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9.1. In no event will either Party be liable under this Agreement for any lost profits, indirect, incidental, special, punitive or consequential losses.
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9.2. Under no circumstances will either Party’s total liability of any kind arising out of or related to this agreement and use of the Services (including but not limited to warranty claims), regardless of the form and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the fees payable by the Customer under this Agreement. The parties agree that this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.
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9.3. The Parties agree that Administrator has set the fees and entered into contract in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the contract between the Parties.

10. Force Majeure
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10.1. Neither party will be liable to the other or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition or event beyond a Party’s reasonable control.

11. Final Provisions
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11.1. Administrator reserves the right to make visual or functional modifications to the Service from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. Administrator reserves the right to make such changes without prior notification to the Customer. No such change will materially reduce the functionality of the Service.

The Parties will comply with all applicable legislation and regulations relating to data protection including without limitation the UK GDPR and Data Protection Act. The parties acknowledge Oculo’s Privacy Policy (available on Oculo’s website) which is incorporated and forms part of these Terms.

During the term of this Agreement and for a period of 2 years following termination or expiration of the Agreement, Administrator agrees to use its best endeavours to ensure that all Customer Data is kept secure and confidential. Administrator may not use the Customer Data for any purpose other than the performance of its obligations under this Agreement.

11.2. This Agreement shall be governed by and construed in accordance with the laws of England and Wales . The Parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.

11.3. The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by agreement in writing signed by both parties.

11.4. If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired. The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.