Version Effective: May 1, 2020
Welcome to Spatial Systems Inc. [Spatial], and to our platform for collaboration and computing across organizations. Spatial utilizes 3D Design and AR/VR technology to create an extraordinary, productive work and/or collaboration experience [Platform]. We try to make it easy for you to experience the future, by entering into these Terms of Service, which constitute a License Agreement [Agreement] between Spatial and you [You/Your], governing Your access to and use of the Service. Please read this Agreement carefully; Your opportunity to use the Spatial software and Platform [collectively, Software] has certain restrictions. The Software is made available to You as a hosted service pursuant to this Agreement [Service].
By clicking “I AGREE” below, and (based on whether You are licensing the limited-use Free version of the Service or the more full-use Pro version, or the Enterprise version), making any required payment of the license fees, You expressly acknowledge that You are a party to this Agreement and agree to be bound by it. This Agreement applies to Your license to the Software, which includes any related materials provided by Spatial, including third-party components and materials [Materials]. (i) If You are employed by, an agent or independent contractor (under written agreement) for or otherwise represent or have been authorized by a company or other legal entity or organization, including an academic organization or government agency [collectively, Organization] to access or use the Service and Software, (ii) if You are using it on any device or computer supplied to You or paid for by such Organization, (iii) if Your use of the Service has been paid for by Your Organization or You have been reimbursed by Your Organization, (iv) if You signed up for the Service using Your Organization’s email domain or address, (v) if You have used the Service on its behalf (i.e., other than using it personally on Your own behalf from an email address that is not the Organization’s on Your own device or computer and fully paid for by You as an individual), or (vi) if You invite other users in the Organization to use the Service or enter a virtual Room with You, then in all of these cases the term “You” also includes such Organization and You are acting on its behalf. You hereby represent and warrant to Spatial that You are authorized to act on such Organization’s behalf in accepting the terms of this Agreement, and You have made sure that You have the necessary authority to enter into this Agreement on its behalf. If You only intend to pay for and use the Service for Your own benefit as an individual, then You are Spatial’s customer [Customer], otherwise, the Organization is the primary Customer and You would be a user, and are bound to respect obligations and restrictions applicable to Users. Individuals authorized by a Customer to use the Service in accordance with this Agreement are authorized users [User(s)].
The term Service also includes any documentation, user guides, upgrades, updates, supplements, third-party materials and components, Internet-based services and support services provided by, for or on behalf of Spatial in connection with use of the Software. Any Spatial terms and conditions that appear in or on, or accompany, any Spatial Software, Materials, items or services also apply and bind You in connection with Your use of and access to the Service.
By agreeing to use the Service below, and using it, You accept these Terms of Service. If You do not accept them, or if You are acting on behalf of an Organization but You are not authorized to bind the Organization on whose behalf You are subscribing to the Service, do not download or use the Software or Service. You as an individual also represent that You are 18 or older, otherwise You are not permitted to enter into this Agreement and should not use the Service.
Subject to the terms of this Agreement, You (the Customer, or if the Customer is an Organization, You the User) are hereby granted a limited, nonexclusive, non-transferable and royalty-free right and license to use the Service including any Spatial-provided Materials solely during the Term (as defined below) for Your work, creativity and production during the Term, or to enjoy using for communicating and collaborating with Your colleagues and friends. The Service is valuable both for business or personal creativity, collaboration and communication, enhancing any group experience with its powerful AR features. The Software is licensed to You for Your use during the Term, but not sold to You. However, You have the right to download and use the Service on Your preferred computers and devices, provided that all use of the Service is by You, that is, Your own use and not use by any other person. You have no right to sublicense it to others, nor to assign any rights granted to You by this Agreement or to give Your login credentials to any other person. However, You may encourage Your colleagues and friends to sample Spatial’s Service; enthusiastic Users of Spatial often help to expand use within an Organization and/or among peers and colleagues.
Your license to the Service gives You the right to use and sample the Service during the Term, subject to the limits that apply to the particular license You obtain, as may be indicated in your Order Form or in a notification from Spatial, as Spatial is constantly enhancing functionality. Spatial will use commercially reasonable efforts to provide You with online notice, or notice to Your account, in the event it imposes or modifies technical or numerical limitations on use or makes available new features. This Agreement covers the Free and the paid Pro versions of the Spatial Service, as well as the version sometimes favored by larger organizations called Enterprise, and may cover new options released in the future. Spatial reserves the right to apply technical and/or numerical limitations on use of the features it now makes available and will make available in the Service, which may vary by the version of license to the Service that you obtain. Such limitations and/or User options on features in the Service may include without limitation: (i) the amount of time that each session or meeting can last, (ii) the number of people who can join the meeting or “Room” (defined below) simultaneously [Concurrent Users], (iii) the number of “Rooms” that people can save for future use/reference; (iv) the volume of Customer Content (as defined in Section 7) uploaded; (v) integration of the Service with other software, and (vi) other enhanced features pertaining to operational, organizational and security management. A “Room” is the virtual locale of a meeting, a shared augmented workspace within the Service where You meet, interact and collaborate with other Users [Room]. There is no limit on how many times You can use the Service during the Term. Larger organizations that may have special needs and potentially many Users may opt to enter into a separate agreement with Spatial for the Enterprise version of the Service, in which case this Agreement shall apply to the extent it does not conflict with or is superseded by the Enterprise agreement.
You will need to set up Your account on Spatial’s website, https://spatial.io. Customer may only permit Users it has authorized to use the Service; provided that (i) the number of Users does not exceed any User Limit that You agreed to on Your online Order Form, which may present You with various Service options; and (ii) Customer must ensure that each User complies with all applicable terms and conditions of this Agreement (including applicable privacy policies, acceptable use policies and other general terms and conditions), and is fully and directly responsible to Spatial for any act or omission by each User in connection with their use of the Service, whether such User is an employee, contractor or agent of Customer.
Customer will, and will require all Users to, use all reasonable means to secure User names and passwords, and hardware and software used to access the Service in accordance with customary security protocols, and will promptly notify Spatial if Customer knows or reasonably suspects that any User name and/or password has been compromised. Each account for access to and use of the Service may only be accessed and used by the specific User for whom such account is created. Customer will further ensure that no User misrepresents his or her identity or otherwise provides any deceptive or misleading profile information or images when creating an account and/or a virtual avatar to use with the Service. You as Customer and/or User will have access to Rooms for the purpose of team collaboration and coordination, and into which certain Customer Content (as defined below) may be uploaded and shared among Users. You as Customer and/or User hereby acknowledge and agree that You are solely responsible for managing all access controls, limits and permissions within the Service with respect to Users and their ability to access Rooms or any Customer Content therein.
The license granted to You, which is a subscription license, runs indefinitely for the Free potentially limited-use version of the Service, and for the full-use Spatial Pro version of the Service runs from Your download of the Software onto any computer or device and ends after the time period specified in Your Order Form, normally one (1) year [Term]. The annual Spatial Pro license will renew automatically for additional periods of one (1) year upon Your payment of the renewal invoice, unless either party informs the other party at least thirty (30) days prior to the then current initial Term or renewal term that it does not wish to renew the Term. The initial Term and any renewal term constitute the Term. Upon expiration of the Term if You still intend to use the Service, You agree to install and use only the Free public version of the Service (if made available by Spatial), or at Spatial’s email request, to delete, uninstall or otherwise remove the Software from any computer, mobile phone or other storage device where it has been downloaded, stored, installed or used. The duration of use of the Enterprise version and the renewal terms will be as agreed with Spatial.
When You purchase the Pro version of the Service, the fees are specified at checkout in the Order Form, and are paid in advance. With the Enterprise version, the fees are also specified in the Order Form. Payment obligations are noncancelable and the fees are nonrefundable unless otherwise indicated in this Agreement. You can go to Spatial’s Help documentation at support.spatial.io for more information about plan offerings and the corresponding payment options. If Spatial agrees in its sole discretion that Customer will be invoiced by email, full payment must be received on net 30-day terms from date of invoice. All fees stated are exclusive of taxes and charges of any nature, such as levies, duties, value-added taxes, excise taxes, use or withholding taxes that may be assessed by any jurisdiction [Taxes]. Customer is responsible for paying all Taxes assessed on its purchase or renewal of a license, other than taxes based on Spatial’s net income. In the event that Your jurisdiction imposes income tax withholding on Your purchase or renewal of a license, You must gross up Your payment to Spatial so that it yields us the amount of fees stated in the online Order Form.
When You access or use any Spatial Software or Materials, You agree that You will not copy, reverse engineer, decompile or disassemble the Software or any portion thereof, nor attempt any activities not expressly permitted by this Agreement. Further, You understand and agree that the Software is the confidential information and property of Spatial. Accordingly, You agree not to disclose the Software nor any information about the Software, in whole or in part, to any third party without the prior express written consent of Spatial in each instance. In particular, You will not disclose to any third party or disseminate to the public (except privately to Spatial), publish on the internet or elsewhere, comment or blog in any medium about the Software, including without limitation Your experience in using this version of the Software, any bugs or problems in or with the Software, any tests run on the Software or results of such tests, or any Feedback concerning the Software or Service without documented permission from Spatial. In addition, You agree not to disclose to any third party any information You acquire in the course of using or testing the Service, about the Software or Spatial.
The Service, Software and any Materials provided by Spatial or obtained or accessed by You from Spatial or its agents shall remain the sole property of Spatial and its successors assigns, and under no circumstances may be used in any way other than pursuant to this Agreement or other agreement between You and Spatial, nor may any Software or Materials, or Service, be retained, sold, or reproduced by any means by You except as specified in this Agreement or the Spatial documentation, and You shall have no intellectual property rights, including but not limited to trade secrets, trademarks, patent rights, copyrights and moral rights in the Service or any of the Software and Materials [Intellectual Property Rights], and upgrades, updates and derivative works thereto. No right or license is granted to You or to any third party by implication, estoppel or otherwise, other than the express rights set forth in this Agreement. Spatial may discontinue development of the Software at any time, which will not affect Your subscription license during the Term. Any rights that You acquire in such Service, Software and/or Materials, other than the license rights granted by this Agreement, are hereby assigned to Spatial, including all intellectual property rights that You may have or acquire anywhere in the world (including moral rights, to the maximum extent permitted by applicable law), and any other rights You may have pertaining to the Service provided by or made accessible by Spatial. You will not attempt to register any Intellectual Property Rights anywhere in the world.
Notwithstanding the foregoing, the Customer (whether You or the Organization You represent) retains all rights in all content not provided by or made accessible by Spatial that You use in Rooms with the Service [Customer Content], and in any personally identifiable information or personal data [PII] that Users and/or Customers provide to Spatial to facilitate provisioning of the Service, which remains the property of the data subjects who provided such PII. The PII that is provided to Spatial in order to establish accounts and provide the Service consists of name, email address, a photo/image to create the User avatar, and GPS or location information about the User. All of this PII remains the property of the Customer/User/data subject. In other words, what Spatial brings to the relationship remains Spatial’s property subject to its ownership of all Intellectual Property Rights at all times, and the content that You introduce to a Room or the PII that You provide Spatial (as between You and Spatial) remains Your property at all times. Your Feedback becomes Spatial’s property as indicated below, as does any derivative work of the Software, Materials or Service.
We also have certain responsibilities to You:
A. Providing the Service. We provide the Service to You, and make sure You receive adequate Support Services. We use great efforts to ensure that the Services operate materially in accordance with our online Help documentation at support.spatial.io and other documentation, with the requisite security described in the next paragraph. We will use commercially reasonable efforts to provide support services adequate to Your needs for the Free version of the Service, and for the Pro and Enterprise versions of the Service, to ensure that the Service will be available to You 24/7 excluding planned or emergency downtime. We will try to keep You informed of any necessary downtime.
For purposes of this Agreement, Confidential Information includes innovations, any information, knowledge or data of either party which the other party and its employees may access or receive relating to the Service, Software, Materials, Customer Content, code, computer programs, accounting methods, marketing techniques, customer names, negotiated customer fee information, financial information, marketing plans, product plans, product or services roadmaps, business strategies, forecasts, personnel information, customer lists, trade secrets and any other nonpublic technical or business information, whether in writing or given to the recipient orally, which the recipient knows or has reason to know that discloser would like to treat as confidential for any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. The Service, Software and any nonpublic documentation shall remain the Confidential Information of Spatial at all times. Any nonpublic Customer Content remains Your Confidential Information or that of Your Organization. Neither party as the recipient shall disclose any Confidential Information of the disclosing party without the prior written consent of the disclosing party, and neither party shall use any Confidential Information of the disclosing party except with respect to You as recipient, to properly use the license granted under this Agreement, or with respect to Spatial as recipient, to provide any necessary Service and other services, or assist Your use of the license You have obtained under this Agreement.
All Confidential Information of the discloser shall be protected from disclosure by the recipient using the standard of care recipient uses with its most valuable confidential information, and at least a commercially reasonable standard of care; and (ii) no Confidential Information of the discloser shall be used for any purpose other than that for which it has been disclosed, and shall not be used for the benefit of recipient or any third party except as permitted by the license to use the Service and/or by this Agreement. Confidential Information does not include information that: (a) is in the public domain through no fault of the recipient; (b) was known to recipient prior to disclosure by the discloser without breach of an obligation to discloser, as can be demonstrated by documentary evidence; (c) was disclosed to recipient by a third party not known by recipient to be under a confidentiality obligation to discloser; (d) was independently developed by recipient without use of Confidential Information of discloser. If required by law or court or governmental order, recipient can disclose Confidential Information of discloser, but recipient first shall give discloser the opportunity to oppose or limit such disclosure, and shall never disclose more than recipient is required to disclose.
You understand and agree that You are welcome to provide Spatial with Your comments, suggestions, concepts, ideas, recommendations for improvements and other feedback concerning the Service, Software and Materials [collectively, Feedback] including without limitation the use, operation, functionality, appearance and other features and characteristics of the Service, Software and Materials. Any and all Feedback concerning the Software and Service, whether or not patentable or protectable in another form, becomes the exclusive property of Spatial immediately upon Your communication of such Feedback to Spatial. Spatial may use the Feedback at any time, in any manner, and in any form or medium now existing or hereafter created, and only Spatial shall have the right to the registration and/or ownership of any intellectual property rights anywhere in the world in the Feedback or results or derivative works thereof. Accordingly, You agree to provide such Feedback concerning the Service, Software and Materials only to Spatial for its exclusive use in any manner it deems fit, including without limitation the commercial exploitation thereof and/or the sale or other transfer thereof to one or more third parties, free of any Spatial obligation to You or others. You hereby expressly agree not to provide to Spatial any Feedback in which any third party has or may have any right, claim or interest or in which You either assert, or have any expectation of retaining, any interest whatsoever or of receiving any remuneration, reward or consideration of any sort, beyond the consideration expressly set forth in this Agreement.
THE SERVICE, SOFTWARE AND MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. SPATIAL MAKES NO WARRANTIES OF ANY KIND IN CONNECTION WITH THE SERVICE, SOFTWARE AND MATERIALS, AND HEREBY DISCLAIMS ALL WARRANTIES OF EVERY KIND, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. NO WARRANTY IS GIVEN WITH RESPECT TO SECURITY OR PRIVACY UNLESS OTHERWISE INDICATED HEREIN, OR FOR ANY THIRD-PARTY MATERIALS UNLESS A THIRD-PARTY WARRANTY CAN BE PASSED THROUGH TO YOU.
A. Spatial Indemnification of Customer. Spatial will defend Customer at Spatial’s expense against actual third-party claims, suits, actions or proceedings [Claim(s)] that the Service or Software as used by You in accordance with this Agreement infringes or misappropriates a third party’s Intellectual Property Rights, with Spatial paying its own defense costs and attorney’s fees regarding the Claim, and Spatial will indemnify Customer for all final amounts awarded against Customer or settlement amounts that must be paid to such third party, provided that Spatial will have no liability if: (i) You have not used the Service properly in accordance with this Agreement; (ii) Your delay in informing Spatial about the Claim has adversely affected Your or Spatial’s legal position or Spatial’s defense obligation; (iii) the Claim arose in whole or in part from Your combination of the Software or Materials with non-Spatial software or materials or Customer Content, which was done by a party other than Spatial or other than strictly in accordance with Spatial’s documentation and/or written instructions; (iv) the Claim arose in whole or in part from modification to the Service, Software or Materials done by a party other than Spatial or not done strictly in accordance with Spatial’s documentation or written instructions; (v) the Claim arose in whole or in part because You failed to implement an upgrade, update or patch that Spatial provided to You before the Claim arose; or (vi) the Claim arose in whole or in part from non-Spatial products or software. In any event, Spatial’s obligations under this paragraph are also conditioned on Your full cooperation with Spatial to enable it to fulfill its obligations hereunder, and on Your mitigating damages by promptly installing any upgrade, update or patch that Spatial provides to resolve the Claim. In any settlement, Your prior written consent shall be required if You are adversely affected thereby, not to be unreasonably withheld. This paragraph is Your sole remedy and Spatial’s only obligation with respect to a Claim against Customer.
B. Customer Indemnification of Spatial. You (Customer) will defend Spatial and its personnel and affiliates [Spatial Indemnitees] against any Claims that arise from: (i) Customer’s or any of its Users violation of this Agreement, or (ii) infringement or misappropriation by the Customer Content of the Intellectual Property Rights of a third party, or (iii) Customer’s or its Users’ use or processing of personal data or personally identifiable information in violation of the rights of a data subject, and You will indemnify the Spatial Indemnitees for reasonable attorney’s fees incurred and damages finally awarded against a Spatial Indemnitee pursuant to such Claim, and for any amounts owed or paid by a Spatial Indemnitee under a settlement of such Claim. However, in the event that You fail to timely take over the defense of a Claim under this paragraph, Spatial reserves the right to assume the defense of such Claim through its own counsel in which event You must pay all such attorney’s fees and costs incurred by Spatial. In any settlement, Spatial’s prior written consent shall be required if a Spatial Indemnitee is adversely affected thereby, not to be unreasonably withheld. This paragraph is Spatial’s sole remedy and Your only obligation with respect to a Claim against a Spatial Indemnitee.
SPATIAL SHALL NOT BE LIABLE FOR ANY LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR LOST REVENUES, PROFITS OR DATA, OR HARM TO ANY COMPUTER OR SYSTEM EVEN IF SPATIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. SPATIAL HAS USED COMMERCIALLY AVAILABLE ANTI-VIRUS TECHNOLOGY AND HAS NOT KNOWINGLY INCLUDED ANY VIRUS, WORM, TROJAN HORSE OR OTHER MALWARE IN THE SERVICE OR SOFTWARE, BUT MAKES NO WARRANTY OF ANY SORT THAT IT IS FREE FROM SAME.
IN NO EVENT SHALL SPATIAL OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER. IN NO EVENT SHALL SPATIAL’S LIABILITY FROM ANY CAUSE OR MATTER ARISING UNDER OR IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT OR ITS BREACH EXCEED IN THE AGGREGATE THE SUM OF US $100 (ONE HUNDRED U.S. DOLLARS), REGARDLESS OF THE FORM OF ACTION AND HOWEVER ARISING, PROVIDED THAT THIS LIMIT SHALL NOT APPLY TO SPATIAL’S INDEMNIFICATION OBLIGATION IN PARAGRAPH 12.A, ABOVE WHICH SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICE DURING THE 12 MONTHS PRECEDING THE CLAIM HAVING FIRST ARISEN.
Either party can terminate this Agreement for breach by the other party, by giving written notice to the other party and a 30-day period to cure the breach, if the breach is capable of cure. You can terminate Your subscription license at any time for convenience also, but such termination of the Service shall not affect Your requirement to pay for the entire subscription license Term. If You validly terminate Spatial for its breach, You are entitled to a pro-rated refund of pre-paid fees covering any time period subsequent to the termination date.
The Software and Service are subject to United States export laws and regulations, as well as to international export laws and regulations wherever the Service is used. These laws include restrictions on permitted destinations, end users and end use, and on countries subject to sanctions and embargoes. In particular, the Service and Software cannot be used or exported: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country as defined by the United States Government; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval.
This Agreement shall be governed exclusively by the laws of the State of New York, USA, excluding the application of its conflicts of laws principles. Any dispute arising under or with respect to this Agreement, including with respect to the enforcement of any rights, provisions, or remedies hereunder, shall be solely and exclusively resolved by binding arbitration in New York, NY, before a single arbitrator administered by JAMS pursuant to its Streamlined Arbitration Rules. Judgment upon any award or decision rendered by the arbitrator shall be binding on the parties and may be entered by any court or forum having competent jurisdiction. Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek and receive from any court having jurisdiction injunctive or provisional relief necessary to protect the rights or property of such party pending the outcome of the arbitration hereunder. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY UNDERSTANDS AND AGREES THAT YOU AND WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; AND (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. In any such arbitration, the prevailing party shall recover its attorneys’ fees and costs from the other party, and the arbitral panel shall determine the prevailing party for this purpose.
It is possible that these Terms of Service will be expanded or modified as Spatial’s business evolves, provided that any Order Forms that You entered into with Spatial cannot be modified without Your written consent. We will use commercially reasonable efforts to give You notice of any material changes, either to the email address associated with Your Spatial account, or through the Service. We also suggest that You review these Terms of Service from time to time to remain current with each party’s rights and obligations. Your continued use of the Service after such a modification constitutes Your acceptance of the modified Terms to the maximum extent permitted by applicable law.
You agree that this Agreement sets forth the entire Agreement and understanding between You and Spatial concerning the Service, Software and Materials and Your license to use them, and this Agreement supersedes all prior and contemporaneous communications, written or oral, concerning the Service, Software and Materials and is intended to be a complete and exclusive statement of the terms of Your Agreement with Spatial. You acknowledge that You have not relied upon any representation whatsoever of Spatial which is not contained in this Agreement. Any waiver by Spatial of any breach or default by You of any of the terms or conditions of this Agreement will not be considered as a continuing waiver or a waiver of any prior, subsequent or different breach. Spatial shall have the ongoing, unfettered right to assign this Agreement to any current or future Spatial affiliated company or third party, whether by merger, acquisition, reorganization, sale of substantially all assets or equity, or by operation of law, without Your consent and without notice. Any assignment or attempted assignment by You of this Agreement in whole or in part, or of any of the rights granted herein, without the prior written consent of Spatial, shall be void. No alteration, amendment, variation, supplementation, modification or waiver of any of the terms of this Agreement shall be binding or effective for any purpose, unless made pursuant to an instrument in writing signed by an authorized representative of Spatial. In the event that You are entering into this Agreement on behalf of an Organization/Customer, You hereby represent that You are at least 18 years old, and fully authorized to do so and bind such Organization to this Agreement.