As Built Documentation LLC Service Agreement
Last updated: March 15, 2024
This SA replaces and supersedes all previous versions of the SA and Cloud Subscription Agreement referenced in any Order dated on or after March 15, 2024.
BY CONTINUING TO USE THE SERVICES PURSUANT TO AN EXISTING AGREEMENT, OR PAYING FOR/ ACCEPTING VIA EMAIL AN ORDER CREATED BY As Built Documentation LLC, YOU AGREE TO BE BOUND BY THE FOLLOWING SERVICE AGREEMENT, AND ANY APPLICABLE SCHEDULES THAT FORM A PART HEREOF (“SA”). IF YOU ARE ENTERING INTO THIS SA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS SA, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
This SA is entered into between Customer (“Customer”) and As Built Documentation LLC Inc., (“As Built Documentation LLC”), with its headquarters located at 1405 S Day Street Brenham Tx. 77833, as of the date of Customer’s Estimate Order, the Order Effective Date as set out in an Order, or the date Customer’s Service Agreement is activated by As Built Documentation LLC (“Effective Date”).
This SA supplements and incorporates As Built Documentation LLC’s online Terms of Use (“Terms of Use”) which govern Customer’s use of our Services and the As Built Documentation LLC Platform, defined below. Undefined capitalized terms used herein shall have the meaning set forth in the Terms of Use. The SA and the Terms of Use together constitute a binding agreement between Customer and As Built Documentation LLC.
1. Definitions and Interpretation
Capitalized definitions used herein are defined in the Appendix. Any capitalized terms used but not defined in this SA shall have the meanings set forth in the Terms of Use or any other applicable terms or Documentation applicable to the services.
2. Provision of Services
Service Agreement Services.
2.1. Commencement of Services. Customer’s Service Agreement shall, unless specified otherwise in the relevant Order, commence on the later of (i) the date As Built Documentation LLC first provides Customer the ability to access the Platform,(ii) the effective date specified in an Order with As Built Documentation LLC (or an Authorized Reseller pursuant to Paragraph 13), or (iii) the date of any upgrades pursuant to an Order (such date being the “Service Agreement Commencement Date”)
2.2. Non-Exclusive License to Services. Subject to the payment of all Service Agreement Fees that are due and payable as of Service Agreement Commencement Date, and As Built Documentation LLC’s rights to suspend and terminate services as set out in the Terms of Use and in Paragraph 11 below, As Built Documentation LLC hereby grants to Customer, a non-exclusive, revocable, worldwide, non-transferable (except as expressly permitted in the Terms of Use), non-sublicensable, limited right to use and access the Services during the Period specified in the order, and solely for Customer’s internal business operations and in each case in accordance with the relevant Documentation.
2.5. Affiliates.
2.5.1. The Parties each acknowledge and agree that Customer's Affiliates shall be entitled to place Orders with As Built Documentation LLC pursuant the terms of this SA, subject to:
2.5.2. the compliance by each such Affiliate with the terms of this SA (it being acknowledged that, save to the extent expressly stated otherwise (including, without limitation, in Clause 12.3), the terms of this SA shall apply to such Affiliate in the same manner and to the same extent as such terms apply to Customer); and
2.5.3. Customer shall remain liable for the acts and omissions of any such Affiliate; and
2.5.4. In the event that Customer or its Affiliate wishes to enter into a new Order, it shall notify As Built Documentation LLC and As Built Documentation LLC shall prepare a new Order. Following the execution of the order form by both As Built Documentation LLC and Customer (or its Affiliate, as applicable), the order form shall constitute a valid and binding Order for the purposes of this SA.
2.6. Trials. As Built Documentation LLC may, in its sole discretion, offer Customer a free of charge trial in order to enable Customer to test and experience the Service Agreement Services (a “Trial”). Where applicable, Customer’s Trial will commence on the date notified to Customer in writing by As Built Documentation LLC, immediately prior to which Customer shall be provided with access to the Platform. For the avoidance of doubt, the terms of Paragraph 5 of this SA (Fees and Payment) shall not apply to any free Trial (provided, however, that if Customer places an Order for a Service Agreement following the end of a Trial, Customer’s continued use and access to the Service Agreement Services will be subject to the payment of all relevant Fees due pursuant to such Order to As Built Documentation LLC or an Authorized Reseller).
2.7. Additional Services.
2.7.1. From time to time, As Built Documentation LLC may make available through the Platform or otherwise, pursuant to an Order, additional services, optional features, and their related assets or output generated pursuant to the provision of such services (“As Built Documentation LLC Digital Assets”) that are not Service Agreement Services and require the payment of Additional Fees. These additional services (“Additional Services”) include, but are not limited to (a) schematic floor plans created from a As Built Documentation LLC Space (”Schematic Floor Plan Services"); (b) “BIM files”, from Customer’s existing As Built Documentation LLC Spaces (“As Built Documentation LLC BIM File Services”); (c) As Built Documentation LLC’s creation of a standard .obj export file, point cloud file, RCP file or other supported file (or set thereof) that is exportable from Customer’s existing As Built Documentation LLC Spaces and which can be utilized by Customer outside of the Platform (“MatterPak File Services”) (d) TruePlan files from Customer’s existing As Built Documentation LLC Spaces stored on the Platform (“TruePlan Services”); (e) files generated by As Built Documentation LLC in the format “.E57” containing a high-density point cloud for all scan locations in a As Built Documentation LLC Space “As Built Documentation LLC E57 File”); or (f) retrieval of an Archived Space
2.7.2. All use of Additional Services shall require Customer to designate and make available to As Built Documentation LLC the As Built Documentation LLC Space(s) in respect of which Customer is requesting the Additional Services. Customer will be invoiced at the end of each calendar month in respect of each As Built Documentation LLC Digital Asset which has been successfully made available to view and download from the Platform during the preceding calendar month. Subject to the payment of all applicable Additional Fees to As Built Documentation LLC or an Authorized Reseller, Customer shall have the right to download the associated As Built Documentation LLC Digital Assets an unrestricted number of times during the Subscription Period. As Built Documentation LLC reserves the right to terminate the Additional Services at any time in its sole discretion, provided however that in such circumstances, As Built Documentation LLC or an Authorized Reseller, as applicable, will provide Customer with a refund in respect of any amounts paid to As Built Documentation LLC in advance which relate to Additional Services which have not, as at the date of termination of the relevant Additional Service, been provided to Customer. Once the Additional Services terminates, As Built Documentation LLC will have no further obligation to create or provide any further Additional Services ordered or requested after the date of termination.
2.7.4. The provisions set out in this Paragraph 2.8. of this SA shall not apply with respect to the As Built Documentation LLC BIM/CAD Service, the term of any subscription in respect of which shall remain in force only for the duration specified in the relevant Order.
2.8. Additional Services. To the extent that Customer places an Order which requests the use of and access to Additional Services, the provision of such Additional services (and Customer’s access to and use of the same) shall be governed by the terms set out in Schedule 1 to this SA.
2.9. Third-Party Services. From time to time, As Built Documentation LLC may make Third-Party Services available through the Platform, the use of which may (in each case) be subject to: (a) the payment of Additional Fees; and (b) Customer’s acceptance of the terms and conditions of the relevant Third-Party Contract (which shall be presented to Customer for acceptance in accordance with the terms set out in Paragraph 7 of this SA (Third-Party Services)). If Customer does not agree to abide by the applicable Third-Party Contract, then Customer should not install, access, or use such Third-Party Services.
3. Customer’s Use of and Access to the Platform and Services
3.1. Provision of Access. Upon the commencement of Customer’s Subscription Period, Customer shall be provided with User Credentials (or otherwise provided with the means to generate User Credentials), following which Customer may allow its Authorized Users to use the Service Agreement Services (and, where relevant, Additional Services) for the purposes set out in this SA, and Customer is responsible for their compliance with the terms set out herein.
3.2. Use Restrictions. Without prejudice to the terms set out in paragraph 2 of the Terms of Use, Customer shall further not (and shall not permit any Authorized Users to, either directly or indirectly, in whole or in part to
3.2.1. use the Platform, the Additional Services or the Additional Functionality, for any purpose other than as set out in or as otherwise permitted by the Terms of Use or this SA.
3.2.2. use any deep-link, page-scrape, spider, robot, crawl, index, or other automatic device, program, algorithm, or technology to use, access, copy, acquire information from, generate impressions on, input information to, store information on, search on, generate searches on or monitor any portion of the Platform, other than as explicitly permitted by Customer’s Service Agreement and/or any As Built Documentation LLC API.
4. Customer's Responsibilities
4.1. Acceptable Use. Customer will not (and shall ensure that each Authorized User does not) use the Platform Services or the Additional Functionality for any unlawful, fraudulent, offensive, or obscene activity in violation of As Built Documentation LLC’s Terms of Use and shall ensure that all usage of the Platform Services and, where relevant, the Additional Functionality, by Customer and its Authorized Users is at all times in compliance with the terms of this SA and the Terms of Use.
4.2. Responsibility for Customer Image Data. Customer is solely responsible for the development, content, operation, maintenance, accuracy, legality, integrity and use of Customer Image Data and shall ensure that Customer Image Data does not comprise: (a) any content which Customer does not own or otherwise have an appropriate license, consent or permission in respect of; (b) any content that is or is otherwise reasonably considered by As Built Documentation LLC to be harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (c) any content that infringes or misappropriates any third-party right (including Intellectual Property Rights), or is invasive of any privacy or publicity right. For the avoidance of doubt, Customer shall obtain in advance all consents, approvals, licenses, and permissions necessary to capture and use imagery of any Subject Property. As Built Documentation LLC shall have the right (but not the obligation) in its sole discretion and at any time to remove from the Platform any Customer Image Data that violates this SA, the Documentation, or that is otherwise objectionable.
4.3. Responsibility For Appropriate Designation.
4.3.1. Generally. Customer has the ability to designate any As Built Documentation LLC Space or Customer Image Data hosted on the Platform as “private” (i.e., only accessible by Customer via the scanning display Platform), “restricted” (i.e., accessible by anyone that possesses the related password or link), or “public” (i.e., accessible by anyone on the internet and publicly available and discoverable on the Platform). Customer acknowledges this is a feature which is a part of, and cannot be removed from the scanning display Platform, and Customer is solely responsible for ensuring the appropriate designation of its Spaces.
4.3.2. Third-Party Interaction. All As Built Documentation LLC scanned Spaces or Customer Image Data will be designated as “public” access unless noted as different. Customer acknowledges that third parties may interact with such As Built Documentation LLC Space or Customer Image Data (which shall include being permitted to take measurements, adding annotations or comments, saving and sharing links to such As Built Documentation LLC Scanned Space or Customer Image Data), and any rights (including Intellectual Property Rights) that arise as a result of such third-party interactions shall be solely owned by As Built Documentation LLC.
4.3.3. Public Links. In the event As Built Documentation LLC Scanned Space or Customer Image Data is “public” and publicly shares, or otherwise makes available on the internet a link to any As Built Documentation LLC Scanned Space, As Built Documentation LLC shall not be responsible for the resulting discoverability or accessibility of the As Built Documentation LLC Space or Customer Image Data on the Platform, and As Built Documentation LLC will have the same right to share such link as any other internet user.
4.4. As Built Documentation LLC Digital Assets. Customer shall be responsible for: (a) any content of the As Built Documentation LLC Spaces; (b) the content of any As Built Documentation LLC Digital Assets created from the As Built Documentation LLC Spaces; and (c) the consequences of sharing or publishing any As Built Documentation LLC Digital Assets, including (without limitation) the disclosure of Customer’s confidential information or Customer Personal Data. Customer hereby affirms, represents, and warrants that Customer owns or has the necessary licenses, rights, consents, and permissions necessary for the creation of any As Built Documentation LLC Digital Assets.
4.6. Account Data. Customer shall provide As Built Documentation LLC with complete and accurate information for Customer’s account, including Customer’s billing and payment information, and shall ensure that such information remains up to date. From time to time, As Built Documentation LLC may require certain additional information from Customer in order to maintain Customer’s account, or to satisfy certain government and regulatory requirements. Customer agrees to provide such information in a timely fashion.
5. Fees and Payments
5.1. Fee Increases. As Built Documentation LLC reserves the right to increase or otherwise modify any applicable Platform Fees at any time by posting details of the revised Platform Fees the As Built Documentation LLC Website, provided that the revised amount of such Platform Fees shall not apply to Customer until: (a) with respect to Service Agreement Fees, the commencement of the next Renewal Period; b) with respect to Services subject to AS Subscription Fees, the commencement of the next AS Renewal Period; and (c) with respect to any other Additional Fees, at such time as the relevant Service in respect of which the relevant Additional Fees are payable is consumed or renewed in a subsequent Order.
5.2. Fees. As Built Documentation LLC shall invoice Customer in respect of: (a) Service Agreement Fees, upon the project Commencement Date and at the commencement of each section of work; and (b) any Additional Fees which are payable pursuant to an Order, in accordance with the terms set out therein or as otherwise detailed in the Price List on the As Built Documentation LLC estimate or invoice.
8. Privacy, Data Security & Confidentiality
8.1. Customer shall not via any means provide or make available to As Built Documentation LLC any special category data (as such term is defined in the UK GDPR or other applicable privacy laws).
8.1.1. Without prejudice to the foregoing, Customer agrees that neither Customer nor any Authorized User shall intentionally upload any Personal Data (as such term is defined in the UK GDPR or other applicable privacy laws) to the Platform. Customer shall take all steps reasonably necessary to ensure the risk of the unintentional capture of Personal Data by the Platform (howsoever arising) is minimized.
8.1.2. Without prejudice to Paragraph 8.1 of this SA, to the extent that any Personal Data is captured in or is otherwise evident from Customer Image Data, Customer shall ensure that it has obtained (or are otherwise in possession of) all necessary rights, permission or consents necessary to enable the upload of such Customer Image Data to the Platform. All such Personal Data shall be processed by As Built Documentation LLC in accordance with As Built Documentation LLC’s Privacy Policy and, where relevant, As Built Documentation LLC’s Data Processing Addendum. Customer acknowledges that, if Customer purchases Platform Services or other As Built Documentation LLC services from an Authorized Reseller, in order to permit As Built Documentation LLC to provision such services, such Authorized Reseller may share Customer Personal Data with As Built Documentation LLC, or As Built Documentation LLC may share Customer Personal Data with such Authorized Reseller. Customer hereby expressly consents to such disclosure and use of Customer Personal Data.
8.2. Data Security. As Built Documentation LLC shall implement and maintain appropriate security measures (including, among other things, technical, physical, and organizational measures) for the purposes of securing the Services. Further details of such measures may be found on the As Built Documentation LLC Website, here: https://As Built Documentation LLC.com/legal/security-practices.
8.3. Confidentiality.
8.3.1. In the event Customer discloses any confidential information to As Built Documentation LLC, As Built Documentation LLC will maintain the confidentiality of Customer’s confidential information and to use it only for purposes related to the performance of this SA. As Built Documentation LLC further agrees to protect Customer’s confidential information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, and to disclose such information only to those of its employees and agents who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those set forth herein.
8.3.2. None of the obligations or restrictions set forth in this Paragraph 8 shall apply to As Built Documentation LLC’s use and disclosure of Customer Image Data, Aggregated Data, or to As Built Documentation LLC’s distribution to third parties or public display of any As Built Documentation LLC Space or Customer Image Data to the extent such distribution or publication was directed by Customer or any Authorized User via the Services or otherwise.
9. Intellectual Property Rights
9.1. General Ownership. As between Customer and As Built Documentation LLC, (a) As Built Documentation LLC owns all right, title, and interest, including all Intellectual Property Rights, in and to the As Built Documentation LLC Technology; and (b) Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data.
9.2. Ownership of As Built Documentation LLC Spaces. Without prejudice to Paragraph 9.1, but subject to Paragraphs 4.3 and 9.3 of this SA, Customer shall own all rights (including Intellectual Property Rights) in and to each As Built Documentation LLC Space and As Built Documentation LLC hereby assigns to Customer, by way of a present assignment of a future right, all its right, title, and interest in and to each As Built Documentation LLC Space.
9.3. Right to Use As Built Documentation LLC Spaces. As Built Documentation LLC shall, both during the term of this SA and thereafter, have the right to otherwise use each As Built Documentation LLC Space for such purposes and in such ways as As Built Documentation LLC may require in connection with the operation of its business (the “Purpose”) and Customer hereby grants to As Built Documentation LLC a non-exclusive, irrevocable, perpetual, royalty-free, sub-licensable license to otherwise use each As Built Documentation LLC Space for the Purpose.
9.4. License of Customer Data. Subject to the terms and conditions of this SA, Customer hereby grants to As Built Documentation LLC a non-exclusive, irrevocable, non-transferable (except as expressly permitted under this SA), non-sublicensable (except as expressly permitted under this SA), worldwide, royalty-free right and license to Customer Data: (a) during the Subscription Period, to host, reproduce, modify, process, publicly display, distribute, use and prepare derivative works from the Customer Data for the purpose of providing the Platform Services; and (b) during the Subscription Period and thereafter to create As Built Documentation LLC Data.
9.5. As Built Documentation LLC Digital Assets. As between As Built Documentation LLC and Customer, all right, title and interest in and to the As Built Documentation LLC Digital Assets created by As Built Documentation LLC on behalf of Customer (and all Intellectual Property Rights therein) are and shall be owned by As Built Documentation LLC. Subject to the payment of all relevant Additional Fees that are due to As Built Documentation LLC or an Authorized Reseller in respect of the applicable Additional Services, As Built Documentation LLC hereby grants to Customer an irrevocable, sublicensable, non-exclusive, perpetual, worldwide license to use, evaluate, reproduce, display, and distribute each As Built Documentation LLC Digital Asset that is produced from the performance of the Additional Services; provided however that Customer shall ensure all such sub-licensees utilize such As Built Documentation LLC Digital Assets in accordance with the Terms of Use. Notwithstanding the foregoing, Customer acknowledges that As Built Documentation LLC Digital Assets can only be generated through the Platform (and that there are therefore technical limitations on the extent to which As Built Documentation LLC Digital Assets may be accessed or otherwise viewed by third parties), however, pursuant to the license herein, Customer will be free to host, reproduce and distribute any As Built Documentation LLC Digital Assets that Customer downloads. Customer acknowledges that it will not have the right to (a) to resell any Digital Assets; and (b) access any of the As Built Documentation LLC Digital Assets stored on the Platform following the expiration or termination of the Subscription Period. All rights not expressly granted herein are reserved by As Built Documentation LLC, and Customer may use As Built Documentation LLC Digital Assets only as expressly permitted by this Paragraph 9.5.
9.6. As Built Documentation LLC Data. Customer acknowledges and agrees that As Built Documentation LLC may throughout the Subscription Period: (a) monitor Customer’s use of the SaaS Services to create Usage Data; and (b) develop LPI Data and Generic Space Data. Customer further acknowledges that As Built Documentation LLC may (a) make As Built Documentation LLC Data publicly available in compliance with applicable law, and (b) use As Built Documentation LLC Data to the extent and in any manner permitted under applicable law (it being acknowledged, for the avoidance of doubt, that As Built Documentation LLC Data does not identify Customer, the Subject Property or Customer’s confidential information). For the avoidance of doubt, the Parties acknowledge and agree that As Built Documentation LLC shall be entitled to (i) combine As Built Documentation LLC Data obtained in connection with this SA with similar data held by As Built Documentation LLC (whether obtained by As Built Documentation LLC from other customers of As Built Documentation LLC or from third parties); and (ii) use such combined/aggregated data to the extent and in any manner permitted by applicable law.
9.7. Digital Millennium Copyright Act. As Built Documentation LLC will respond to notices of alleged infringement in compliance with the Digital Millennium Copyright Act (“DMCA”). If Customer is a copyright owner or an agent thereof, and Customer believes that any content hosted on the Platform infringes Customer’s copyrights, then Customer may submit a notification to legal@matteport.com.
9.8. Marks. The Marks displayed on or in the Platform, the Services and the Documentation are the property of As Built Documentation LLC. Customer shall not: (a) use or allow the use of any Mark without the prior written consent of As Built Documentation LLC; or (b) take steps to alter, cover or otherwise obscure from view any Mark that is displayed on the Documentation or the Platform Services or any As Built Documentation LLC Space, As Built Documentation LLC Digital Asset or other As Built Documentation LLC property. In the event Customer displays any trademark, logo, service mark, trade name or other branding on any page on which Customer displays any As Built Documentation LLC Space or As Built Documentation LLC Digital Asset or in any other place where Customer promotes the use of a As Built Documentation LLC Space or As Built Documentation LLC Digital Asset, Customer shall not do so in a manner that implies, or reasonably could imply, that the whole or any portion of the As Built Documentation LLC Technology used to generate or provide any As Built Documentation LLC Space or As Built Documentation LLC Digital Asset is owned by Customer or any third-party. In the event that As Built Documentation LLC becomes aware that Customer’s use of the Marks does not comply with the terms of this SA (as determined by As Built Documentation LLC in its sole discretion), As Built Documentation LLC shall notify Customer of this, and Customer shall remedy the relevant non-compliance in accordance with the requirements set out in such notice. Any failure to fully comply with such notice shall constitute a material breach of this SA.
10. Representations, Limited Warranty and Disclaimer
10.1. As Built Documentation LLC Limited Warranty. Subject to Paragraph 10 of the Terms of Use, As Built Documentation LLC warrants that it (a) provides the Service Agreement Services using commercially reasonable efforts in accordance with standards generally accepted in As Built Documentation LLC’s industry; and (b) uses industry-standard methods designed to ensure that the Service Agreement Services do not contain software viruses or other unauthorized or malicious code. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING WARRANTY IN THIS PARAGRAPH AND PARAGARPH 10 OF THE TERMS OF USE DOES NOT APPLY TO, AND As Built Documentation LLC STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES.
10.2. Customer Warranty. Customer warrant that: (a) Customer own all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data and has all rights, consents and/or permissions necessary to grant As Built Documentation LLC the licenses of Customer Data set out in this SA; and (b) that both the Customer Data and Customer’s use of the Platform are and shall throughout the Subscription Period be in compliance with the Terms of Use and shall not infringe the rights (including Intellectual Property Rights) of any third-party.
11. Suspension and Termination
11.1. Suspension. Notwithstanding any provision to the contrary within Paragraph 9 of the Terms of Use, As Built Documentation LLC reserves the right to suspend the Customer's access to the Service Agreement Services and/or any Additional Services forthwith upon providing notice to the Customer, should there be a violation or breach of any term or condition of any agreement executed between the Customer and As Built Documentation LLC. Such notice of suspension shall be communicated to the Customer either through the Platform or via email by As Built Documentation LLC, and the suspension may take effect immediately upon issuance of said notice.
11.2. Access. Upon the termination or expiry of Customer’s Service Agreement, Customer’s access to the Platform Services (and the access of every Authorized User) will be deactivated and Customer will cease to have any ability to export any previously purchased As Built Documentation LLC Digital Assets or Customer Image Data in Customer’s Platform account in file formats available through functionality in Customer’s Platform account. As Built Documentation LLC will cease to have any obligation following the termination or expiry of Customer’s Service Agreement to provide to Customer: (a) any As Built Documentation LLC Technology (including, without limitation, any technology used to display any As Built Documentation LLC Space); or (b) access to the Platform for the purpose of exporting As Built Documentation LLC Digital Assets.
11.3. Licenses Granted to As Built Documentation LLC. Save to the extent expressly stated to expire upon the termination or expiry of Customer’s Service Agreement, no license granted to As Built Documentation LLC by Customer shall terminate as a result of the termination or expiry of Customer’s Service Agreement and As Built Documentation LLC shall be entitled to continue to utilize all such licensed rights.
11.4. Deletion of confidential information and Personal Data. To the extent legally permissible, at termination or expiration of Customers Service Agreement, and upon receipt of a written demand from Customer sent to As Built Documentation LLC pursuant to the Notice provision of the Terms of Use, As Built Documentation LLC, will delete all copies of Customer’s confidential information in its possession or under its control. All Customer Personal Data shall be deleted by As Built Documentation LLC in accordance with As Built Documentation LLC’s Privacy Policy and, where relevant, As Built Documentation LLC’s Data Processing Addendum.
12. Limitation of Liability
12.1. Generally. Notwithstanding Paragraph 11 of the Terms of Use, in no event will the total cumulative liability of either Party (whether such liability arises in contract, tort (including negligence) or otherwise) to the other Party in respect of Losses arising out of, or in connection with this SA, exceed the total Fees paid to As Built Documentation LLC or an Authorized Reseller, as applicable, during the twelve (12) month period immediately prior to the date the cause of action arose. Neither Party shall be liable to the other Party (whether such liability arises in contract, tort (including negligence) or otherwise), even if such Party was notified or was otherwise aware of the possibility of such Loss, for: (a) any loss of profit, loss of or damage to data, loss of anticipated savings or interest, loss of use, loss of or damage to reputation or goodwill, the cost of procurement of substitute goods or services; or (b) any indirect, special, consequential, exemplary or reliance damages, loss, costs, claims or expenses of any kind. As Built Documentation LLC shall not be liable to Customer in respect of any Loss incurred by Customer as a result of: (a) the unauthorized redistribution or display of the Services (or portion thereof) by any third-party, including without limitation through any unauthorized embedded links or code on a third-party website or app; (b) any Loss arising from a failure or delay in the performance of its obligations under this SA to the extent that such failure or delay was caused or contributed to by an act or omission of Customer or its employees, or any third-party; (c) any disruption to Services, including downtime, outages; or (d) inaccurate information received by Customer as a result of As Built Documentation LLC performing maintenance of the Services.
12.2. Exclusions. The exclusions and limitations of liability in this SA shall not apply in respect of: (a) any liability of Customer to pay any Fees; (b) any violation by Customer of the Terms of Use or this SA; (c) any Loss suffered by any person arising out of the fraud and/or fraudulent misrepresentation of the Party seeking to rely on the exclusion or limitation; (d) death or personal injury resulting from negligence on the part of the Party seeking to rely on the exclusion or limitation; or (e) any liability of either Party that cannot otherwise be excluded or limited under applicable law.
12.3. Applicability to Affiliates. If applicable, and notwithstanding any other Clauses of this SA, Customer acknowledges and agrees that in the event that a Customer Affiliate enters into an Order with As Built Documentation LLC: (a) any Losses incurred by such Customer Affiliate pursuant to or in connection with such Order will be treated as a Loss suffered by Customer and, to the extent that pursuant to the terms of this SA such Loss would be recoverable by Customer from As Built Documentation LLC had such Loss been suffered by Customer, such Loss shall only be recoverable by Customer against As Built Documentation LLC; and (b) any Losses incurred by As Built Documentation LLC pursuant to or in connection with such Order due to an act or omission of Customer's Affiliate (or an Authorised User of such Customer Affiliate) will be treated as if such Loss had been caused by or contributed to by Customer and shall be recoverable by As Built Documentation LLC against Customer to the same extent that Customer would be liable to As Built Documentation LLC pursuant to the terms of this SA had the relevant act or omission been committed by Customer.
13. Reseller Orders
If Customer orders any Platform Services from an Authorized Reseller pursuant to an Order between Customer and the Authorized Reseller: (a) all references to an Order in this SA shall mean the applicable the Order between Customer and the Authorized Reseller; (b) Paragraph 5 (Fees and Payments) is superseded by the terms set forth in the applicable Order between Customer and the Authorized Reseller, and fees set forth in such Order shall paid directly to the Authorized Reseller, as applicable; (c) As Built Documentation LLC shall provide all credits or refunds owed by As Built Documentation LLC to the Authorized Reseller and not to Customer, and Customer shall look to the Authorized Reseller for such credits and refunds; (d) Paragraph 6 (Service Level Support) is superseded by the applicable Order between Customer and the Authorized Reseller; and (e) As Built Documentation LLC shall have no responsibility or liability with respect to any failure by the Authorized Reseller to issue credits or refunds to Customer. Notwithstanding anything to the contrary, unless As Built Documentation LLC provides signed written authorization to Customer, no additional terms in any Order between Customer and an Authorized Reseller shall be binding on As Built Documentation LLC, and this SA shall prevail in the event of any conflict between this SA and any Order between Customer and an Authorized Reseller.
14. Publicity Rights
Unless Customer notifies As Built Documentation LLC in writing that Customer do not wish for As Built Documentation LLC to list Customer’s name and logo, As Built Documentation LLC will have the right to include, Customer’s name and Customer’s logo (if any) in any lists that identifies customers of As Built Documentation LLC, including but not limited to on the As Built Documentation LLC Website, sales collateral, and marketing materials.
15. Force Majeure
Neither Party shall be considered in breach of, or have any liability under this Agreement for any delay or failure in performance under this Agreement arising as a result of any occurrence of a Force Majeure. The delayed Party shall send written notice of the delay and the reason thereof to the other Party as soon as possible, and the time for performance of the relevant Party’s obligations hereunder shall automatically be extended for a period equal to the duration of any such delay. The delayed Party shall (a) use commercially reasonable endeavors to avoid or minimize the consequences of the event of Force Majeure; (b) carry out its obligation in such other way as may be reasonably and commercially practicable; and (c) use commercially reasonable endeavors to bring the Force Majeure in question to an end as soon as reasonably practicable. This Paragraph 15 shall not be construed as relieving either Party from its obligation to pay any sums due to the other Party.
1. Definitions Appendix
In this SA, the following words and expressions shall have the following meanings, unless the context requires otherwise:
“Additional Fees” means, if applicable, Additional Functionality Subscription Fees, as well as any fees payable to As Built Documentation LLC or an Authorized Reseller in respect of: (a) Service Agreement Services provided in excess of those within the scope of Customer’s Service Agreement Plan; (b) Additional Services (as defined herein); (c) if applicable, Third-Party Services.
“Additional Functionality” means the As Built Documentation LLC SDK and As Built Documentation LLC API functionality made available by As Built Documentation LLC via the Platform, or offered as part of a third party integration where applicable (to the extent the subject of an Order), subject to the payment of the applicable Additional Fees to As Built Documentation LLC or an Authorized Reseller.
“Affiliate” means any current or future entity that directly or indirectly controls or is controlled directly or indirectly by or is under common control with, a Party. For the purposes of the foregoing “control” shall be understood as direct or indirect ownership of at least 50% of the share capital or the voting rights of an entity, or of the right to direct the management of an entity.
“Anonymized Data” means any data extracted from Customer Data, from which all Personal Data has been removed, such that the Customer is no longer identifiable from such data (or may otherwise be associated with such data).
“Authorized Reseller” means any third-party reseller who has a reseller agreement with As Built Documentation LLC to resell As Built Documentation LLC services, including but not limited to, Platform Services.
“Authorized Users” means each of Customer’s employees, consultants, contractors, agents, and third-party collaborators who are authorized by Customer to access and use the Platform and the Platform Services and, where applicable, Additional Functionality, pursuant to this SA (whether via the provision of a username and password combination via which the Platform is made accessible by As Built Documentation LLC (“User Credentials”) or otherwise).
“Customer Data” means any and all information, data, and other content, in whatever form or medium, that is submitted, posted, or otherwise transmitted to As Built Documentation LLC in connection with the use of the Platform by Customer (or its Authorized Users), including (without limitation) Customer Image Data and Customer Personal Data, but excluding As Built Documentation LLC Data.
“Customer Image Data” means any Customer Data that is uploaded, submitted, or otherwise posted to the Platform by or on behalf of Customer in the form of images (whether 2D or 3D), and including (without limitation) all associated text, notes, tags, annotations, hyperlinks, images, videos, and any other rich media content (“Mattertags”) that may be uploaded by Customer or an Authorized User to a As Built Documentation LLC Space
“Customer Personal Data” means any Customer Data which would be considered Personal Data, as such term may be defined in any privacy and data protection laws applicable to the Platform Services.
“Documentation" means any user manuals, help guides, technical documentation, specifications, and other materials, made available by to Customer, on the As Built Documentation LLC Website or otherwise, in connection with the use of the Platform Services including, but not limited to, the Subscription Plans, and price list, and any updates, modifications, or enhancements to such materials that may be provided from time to time.
“Force Majeure” means any event or circumstance which is beyond the reasonable control of the affected Party.
“Generic Space Data” means Anonymized Data relating to the structure, measurements, materials and fixtures of a Subject Property.
“Initial Subscription Period” means the the period from the Service Agreement Commencement Date through (i) for a monthly Service Agreement, the last day of the current monthly term; or (ii) for an annual Service Agreement, the date which is twelve (12) calendar months from and including the Service Agreement Commencement Date, or as otherwise specified in an Order.
“Learning and Process Improvement (LPI) Data” means Anonymized Data, content and other materials that result from the As Built Documentation LLC Production Process for the purpose of providing or improving the Platform.
“Marks” means any trademarks, logos, service marks, trade names or other branding of As Built Documentation LLC whether registered or not.
“As Built Documentation LLC Data” means Anonymized Data that As Built Documentation LLC extracts through the analysis of Customer Data, and includes all Generic Space Data, Usage Data and LPI Data.
“As Built Documentation LLC Space” or “Space” means a 3D representation of a property created (a) via the As Built Documentation LLC Production Process and (b) displayed and accessible only via a visual web web page, available solely via a link to the Platform (“Showcase”).
“As Built Documentation LLC Technology” means all technology and data created by As Built Documentation LLC, including without limitation: (a) the Platform; (b) embedded technology in any camera equipment developed by or on behalf of As Built Documentation LLC from time to time and made available for use by customers (a “As Built Documentation LLC Cameras”); (c) the As Built Documentation LLC Production Process and any artificial intelligence, machine learning, depth-perception or other algorithms therein; (d) the Positional Technology that detects specifies the location digital objects within a As Built Documentation LLC Space; (e) As Built Documentation LLC Data; (f) As Built Documentation LLC Digital Assets; (g) system performance data, workflows, know-how, object segmentation, auto-generated labels, space indexing, computer vision created by As Built Documentation LLC; (h) the Additional Functionality; and (i) and any subsequent improvements to any of the foregoing.
“Order” means a written, click to accept or electronic document entered into between Customer and As Built Documentation LLC (or an Authorized Reseller) for ordering the Services.
“Platform” means As Built Documentation LLC’s proprietary cloud-based application platform, via which the Platform Services are made available by As Built Documentation LLC.
“Platform Fees” means the Service Agreement Fees and any applicable Additional Fees
“Platform Services” means the Service Agreement Services and any Additional Services that are the subject of an Order.
“Service Agreement” means Customer’s right (and the right of its Authorized Users) to access and use the Service Agreement Services in accordance with the terms set out in this SA for the duration of the Subscription Period, at the Subscription Plan and in respect of the number of Authorized Users, in each case, as may be specified in an Order.
“Service Agreement Services” means the services that are provided by As Built Documentation LLC as part of a Service Agreement, including, without limitation, the Platform, and the creation of As Built Documentation LLC Spaces.
“Service Agreement Fees” means the fees payable to As Built Documentation LLC or an Authorized Reseller in respect of a Service Agreement, as set out in the Order.
“Subject Property” means the structure, location, or premises in respect of which: (a) a As Built Documentation LLC Space is created; and (b) to the extent specified in an Order, Capture Services are provided.
“Subscription Period”means the Initial Subscription Period and each subsequent Renewal Period
As Built Documentation LLC SA Schedule 1 - Professional Services Terms
Last updated: May 9, 2023
The terms set out in this Schedule are applicable to Customer’s purchase of any Professional Services, and form a part of the SA.
1. Definitions
In these Professional Services Terms, the following words and expressions shall have the following meanings, unless the context requires otherwise:“Blurring” means the obfuscation of sensitive data (as identified on the Order) from a As Built Documentation LLC Space.
“tagging” means to apply tags that would call out specific features, add details, or context to different aspects of the As Built Documentation LLC Space as defined in an Order for Professional Services
“Photo Editing” means the process of collecting relevant images from a As Built Documentation LLC Space and making enhancements to the visual quality of such images (including, without limitation, by adjusting the framing and cropping of such image, color-grading, performing spot corrections, camera reflection removal and/or applying blue sky treatment).
“Professional Services” means any service provided to Customer by As Built Documentation LLC pursuant to an Order for the purpose of enhancing a As Built Documentation LLC Space, including but not limited to Stitching, Photo Editing, Blurring, and the application of Mattertags.
“Professional Services Fees” means the Fees payable in respect of the Professional Services, as indicated on the Order.
“Professional Services Term” means the period commencing upon the date specified in the relevant Order on which the provision of the Professional Services shall commence and ending upon the earlier of: (i) the end date specified in such Order; or (ii) the date on which the Professional Services are satisfied.
“Stitching” means the process of combining multiple stand-alone As Built Documentation LLC Scanned Spaces into a single As Built Documentation LLC Space so it can be viewed in a single Showcase with a single URL within the Platform. The maximum size of all spaces not subject to stitching is 5000 square feet all spaces larger than this will require a stitching job.
“Stitching Job” means As Built Documentation LLC is to combine two or more As Built Documentation LLC Spaces and delivered as one (1) final As Built Documentation LLC Space.
2. Performance of Professional Services
2.1. Subject to the terms of this SA and in consideration of the payment of the Professional Services Fees, As Built Documentation LLC hereby agrees to perform the Professional Services.
2.2. In performing the Professional Services, As Built Documentation LLC undertakes that it shall at all times act: (a) in accordance with the terms and conditions set out in this SA (including, for the avoidance of doubt, this Appendix 5); (b) with reasonable skill and care; and (c) in a timely and professional manner.
3. Customer Obligations
Without prejudice to the generality of the main body of this SA, Customer shall in relation to the provision of the Professional Services: (a) use its reasonable endeavours to respond promptly to any request for guidance or instruction which is reasonably required by As Built Documentation LLC to enable it to perform its obligations under this Agreement; and (b) co-operate and liaise with As Built Documentation LLC as necessary or desirable for the performance of the Professional Services.
4. Fees
The Fees payable by Customer for the performance of the Professional Services shall be as set out in the Order and shall be payable in accordance with the terms set out in the main body of this SA. Should the Customer’s actual usage exceed the Fees stated in the Order, As Built Documentation LLC will invoice additional fees following the occurrence of the overage.
In the event that the full amount of the Professional Services Fee is exhausted by Customer prior to the expiry of the Professional Services Term, As Built Documentation LLC shall be entitled to immediately invoice Customer the full amount of the Professional Services Fees that remain outstanding.
5. Term
The Term of the Order is the earlier of the Professional Services Term End Date or the date in which the Professional Services commitment is satisfied. If the Professional Services commitment is satisfied prior to the Professional Services Term End Date, all remaining balances and additional fees, if applicable, will be immediately due. Once the Professional Services Term is completed, Customer will need to secure a new contract with As Built Documentation LLC to continue ordering Professional Services.
6. Unused Services
The Professional Services herein must be completed within the Professional Services Term. Any portion of the Professional Services Fee (as identified in the Order) not used within the Professional Services Term will be automatically forfeited by Customer, with no further action required of either Party. Customer will not be entitled to a refund, or credit toward other Services, for any unused portion of the Professional Services as identified in the Order and for which Fees have been paid.
7. Limited Warranty
As Built Documentation LLC hereby warrants that the Professional Services will be performed in a professional and workmanlike manner. For any breach of this warranty, Customer’s sole and exclusive remedy, and As Built Documentation LLC’s entire liability shall be the re-performance of the non-conforming Professional Services. In the event that Customer regards the foregoing warranty as having been breached, it shall notify As Built Documentation LLC of this in writing within ten (10) days of the completion of the performance of the relevant Professional Services. As Built Documentation LLC shall have no liability in respect of any warranty claim brought after the expiry of this period. THE WARRANTY AND REMEDY IN THIS PARAGRAPH 7 IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, USEFULNESS, OR TIMELINESS.
8. Additional Terms Applicable to Stitching Jobs
8.1. A Stitching Job will be considered complete and deemed accepted by the Customer once As Built Documentation LLC has made the combined single As Built Documentation LLC Space available to be viewed by Customer in a Showcase.
8.2. As Built Documentation LLC may, in its sole discretion, reject any Stitching Job for any reason, including, but not limited to As Built Documentation LLC Spaces requiring repair and/or with misalignments.
8.3. Stitching Jobs captured with a As Built Documentation LLC Pro2 or Pro3 Camera process up to 2,000 combined Scan Points or up to 50,000 combined square meters (538,000 square feet), including outdoor areas. If the total scan points or total area exceeds either of these thresholds, there is no guarantee that the stitching will be successful.
As Built Documentation LLC Addendum
Last updated: May 9, 2023
This Addendum (“A”) supplements the Platform Services Agreement (“SA”) and Terms of Use for Customers purchasing an enterprise level As Built Documentation LLC Subscription Plan (the SA, Terms of Use and EA collectively referred to as the “Agreement”).
This A only applies to Customers who purchase an Enterprise Plan for your As Built Documentation LLC Subscription Plans (as updated from time to time).
3. Privacy, Data Security & Confidentiality
3.1. Data Protection. The following shall supplement Paragraph 8.1 of the SA.
3.1.1. The Parties hereby undertake to comply at all times during the term of this Agreement with their respective obligations pursuant to the data privacy Laws. Without prejudice to the generality of the foregoing, in providing the Services, As Built Documentation LLC shall at all times comply with its Privacy Policy and, where applicable, the Data Processing Addendum and Standard Contractual Clauses, available at: https://As Built Documentation LLC.com/legal/data-processing-addendum, which are incorporated herein
3.2. Security Measures. The following shall supplement Paragraph 8.2 of the SA.
3.2.1. As Built Documentation LLC shall monitor the Services for the purposes of preventing (and, where relevant detecting) any Security Incident. If As Built Documentation LLC has reason to suspect or has confirmed the existence of a Security Incident that impacts Customer Personal Data, it shall: (a) notify Customer of such Security Incident without undue delay, but in any event within seventy-two (72) hours, and provide Customer with all such information as may be required for Customer to meet its obligations under applicable law; and (b) at its cost, take all necessary steps to bring the Security Incident to an end and prevent the recurrence of such Security Incident. As Built Documentation LLC will provide Customer with As Built Documentation LLC’s latest SOC2 accreditation and supporting documentation upon Customer’s reasonable request from time to time. For the avoidance of doubt, As Built Documentation LLC does not provide or otherwise offer ‘in-person’ audits under any circumstances but will provide annual penetration test reports and other appropriate documentation, certifications, and attestations.
3.3. Confidentiality. The following shall replace Paragraph 8.3 of the SA in its entirety.
3.3.1. “Confidential Information” means all information in whatever form received or obtained by a Party (the “Receiving Party”) from, or on behalf of, another Party (the “Disclosing Party”) as a result of, or in connection with, this SA (including any reports, summaries or analyses to the extent prepared from such information) other than: (a) any information which was rightfully in the possession of the Receiving Party prior to the disclosure by the Disclosing Party and acquired on a non-confidential basis from sources other than the Disclosing Party; (b) any information which is in the public domain otherwise than as a result of a breach of this Agreement by the Receiving Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
3.3.2. All Confidential Information communicated by a Party to the other Party shall be treated as confidential, regardless of its form, nature, or the way it has been communicated and each Party agrees that it shall use such Confidential Information solely in connection with the performance of its obligations and the exercise of its rights pursuant to this Agreement.
3.3.3. The Parties each agree that their respective employees and subcontractors (if any) will be communicated Confidential Information of the other Party only on a need-to-know basis and shall ensure that such persons are subject to obligations of confidentiality that are no less stringent than those imposed in this Agreement
3.3.4. Following the termination or expiry of this Agreement, without prejudice to any other term of this Agreement, each Party shall, if requested to do so by the other Party, as soon as reasonably practicable, procure that all Confidential Information in its possession or under its control is returned, deleted or destroyed (save to the extent prohibited by relevant laws or regulations) in accordance with the written instructions of the other Party and shall confirm in writing to the other Party that it has done so.
3.3.5. Each Party undertakes to apply to the Confidential Information at least the same security measures and degree of care as it applies to its own confidential information.
3.3.6. Nothing in this Paragraph 3 shall (a) restrict As Built Documentation LLC’s right to use and disclose any As Built Documentation LLC Technology and As Built Documentation LLC Data (each as defined in the SA) as provided elsewhere in this Agreement; or (b) apply to As Built Documentation LLC’s use and disclosure of Customer Image Data or Aggregated Data, or (c) prohibit As Built Documentation LLC’s distribution to third parties or public display of any As Built Documentation LLC Space or Customer Image Data to the extent such distribution or publication was directed by Customer or any Authorized User via the Services or otherwise. The provisions of this Paragraph 3.3 shall survive the termination of this Agreement and the return, deletion, or destruction of the Confidential Information.
4. Additional Indemnity
4.1. In addition to the indemnification obligations in Paragraph 12 of the Terms of Use:
4.1.1. As Built Documentation LLC hereby agrees to defend, indemnify, and hold harmless Customer, its Affiliates and their respective officers, directors, employees, sub-contractors, and representatives (“Customer Indemnitees”), and pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees (including all associated Losses) or payable pursuant to a settlement agreed by As Built Documentation LLC with respect to such claims, to the extent such claims arise out of: (a) any Third-Party Claim that Customer’s use of the Services in accordance with its terms infringes any third-party’s intellectual property rights; or (b) As Built Documentation LLC’s violation of its obligations pursuant to Paragraph 3.3 (Confidentiality). provided that, in respect of any claim made pursuant to this Paragraph 4.1.1(a): (a) Customer shall promptly, and in any event within five (5) days of the relevant Third-Party Claim arising, provide As Built Documentation LLC with written notice of the Third-Party Claim; (b) Customer provides all reasonable information and cooperation to As Built Documentation LLC in the defense and settlement of the Third-Party Claim (at As Built Documentation LLC’s expense); and (c) As Built Documentation LLC is given sole authority to defend or settle the Third-Party Claim. As Built Documentation LLC shall not be liable for any costs or expenses incurred by Customer without As Built Documentation LLC’s written authorisation.
4.1.2. As Built Documentation LLC will be relieved of its obligations under this Paragraph 3 to the extent that a Third-Party Claim arises from or relates to (a) the Customer’s breach of this Agreement; (b) the Customer’s violation of applicable law or regulation); (c) the combination, operation, or use of As Built Documentation LLC’s Services with any non-As Built Documentation LLC product or service; (d) the modification of As Built Documentation LLC’s Services at Customer’s request; or (e) the negligence or wilful misconduct of the Customer.
4.1.3. If any Third-Party Claim is upheld, threatened or reasonably anticipated and for which Customer seeks indemnification pursuant to Paragraph 3.1.1(a), As Built Documentation LLC shall have the right, at its sole discretion to either: (a) modify the relevant Service (or portion thereof) such that it is non-infringing; (b) acquire any relevant right so as to ensure the relevant Service (or portion thereof) is no longer infringing; or (c) terminate the Order pursuant to which the relevant Service is made available to Customer or otherwise terminate this Agreement, in each case without liability to Customer.
4.1.4. Customer acknowledges and agrees that Paragraphs 4.1.1 and 4.1.2 set out As Built Documentation LLC’s entire liability, and Customer’s sole remedy, in respect of a Third-Party Claim that Customer’s use of the Services in accordance with the terms of this Agreement infringes any third-party’s Intellectual Property Rights.
4.1.5. Customer hereby agrees to defend, indemnify and hold harmless the Indemnified Parties from and against all Third-Party Claims, including all associated Losses, to the extent based on or arising out: (a) the conduct of Customer’s business or the use of or inability to use the Services; (b) Customer’s breach of any of its covenants, undertakings, representations and/or warranties set forth in this Agreement; or (c) the fraud, gross negligence or wilful misconduct of Customer or Customer’s Authorized Users.
5. Miscellaneous
This Agreement (including any and all documentation included by reference therein), contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, agreements, understandings, and arrangements (both written and oral) between the Parties.