Scope Technologies US Inc. (“Scope AR”) MSA
Last updated: September 10, 2018
This agreement governs your acquisition and use of our products and services.
By accepting this agreement, through execution of an order form referencing this agreement or through other means, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity and its affiliates to these terms and conditions, in which case the terms “You” “Your” and “Customer” in this agreement refer to that entity and its affiliates. If you do not have that authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use our products or services.
If you are accessing our product or service as part of a free trial, your free trial is governed by Section 10 (Free Trial) below, which limits our responsibility and disclaims all warranties and liability.
You may not access our products or services if You are our direct competitor, except with our prior written consent. In addition, You may not access our products or services to monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on September 10, 2018. It is effective between You and Scope AR as of the date You accept it.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Agreement” means this Master Subscription Agreement and online addenda hereto that are provided by Scope AR and accepted by You.
“App” means the Scope AR’s downloadable mobile applications(s) specified in the applicable Order Form through which End Users can receive or access the Services.
“AR” means augmented reality.
“Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Documentation” means any and all written or electronic documentation, including user manuals and/or reference materials that Scope AR generally makes available to Service subscribers.
“Fee(s)” means the fees specified in the applicable Order Form payable by You to Scope AR for the right to receive access to the Service.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an order form incorporating the terms of this Agreement and specifying the services to be provided to You by Scope AR.
“Scope AR”means Scope Technologies US Inc.
“Services” means the products and services that are ordered by You under an Order Form, including associated Scope AR offline or mobile components, as described in the applicable Documentation.
“SLA” means such service level agreement, if any, as may be incorporated into an Order Form.
“Your Data” means all electronic data or information submitted by You and/or its Users to the Service.
“Term” has the meaning ascribed to that term in Section 11.1.
“Third Party Software” means any third party software that the Services may require in order to function in accordance with the Documentation, details of which are set out in the Documentation.
“User” means an individual who is authorized by You to use all or part of the Service who has been supplied a user account by You (or by Scope AR at Your request) for the Service.
2. GRANT OF LICENSE
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and the applicable Order Form, Scope AR shall make the Services available to You and Your Users during the Term for the purpose of (i) allowing You to use the Services in the internal operation of Your Business, and (ii) providing the Services to Users. You shall not use the Service for any purposes other than as described in this Agreement.
2.2 License. Subject to the terms of this Agreement, the applicable Order Form, and the timely payment of the Fees, Scope AR grants to You for the Term of this Agreement a non-transferable, non-exclusive license to access and use the Services for Your internal business use.
3. USE OF THE SERVICES.
3.1 Scope AR Responsibilities. Scope AR shall: (i) use commercially reasonable efforts to maintain the security and integrity of the Service and Your Data; (ii) provide hosting and storage services for Your Data; and (iii) in addition to the terms of the applicable SLA (if any), use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Scope AR’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Scope AR employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Scope AR’s possession or reasonable control, and denial of service attacks.
3.2 Your Responsibilities. You are responsible for all activities that occur in user accounts and for its Users’, employees’, contractors’, customers’ and agents’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Scope AR promptly of any such unauthorized access or use; (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service; and (iv) separately license any required Third Party Software.
3.3 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users nor have more User accounts than specified in the applicable Order Form(s); (b) a User’s password may not be shared with any other individual;, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, Scope AR may work with You to seek to reduce its usage so that it conforms to that limit. If, notwithstanding Scope AR’s efforts, You are unable or unwilling to abide by a contractual usage limit, You will pay any invoice for excess usage in accordance with Section 4.2 (Invoicing and Payment).
3.4 Use Guidelines. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as required to provide the Service to Users as contemplated by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, harmful, dangerous, inaccurate, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.5 Incremental Services. From time to time, certain additional Scope AR or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Scope AR to You (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by You for additional fees in accordance with such mutually agreed upon terms and conditions as may be applicable to such additional functionality (such terms and conditions prevailing in the event of any inconsistency with the terms and conditions of this Agreement).
3.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s trademark standard guidelines, unless either party notifies the other in writing that it does not want its logo to appear in such customer or vendor lists.
3.7 Support. Scope AR will provide either (a) at no additional charge to You, technical support to Your employees, agents and contractors in the use and operation of the Service as so specified in the applicable Order Form, provide the support as set forth in a service level agreement incorporated in such Order Form on payment of the applicable fees.
4. FEES & PAYMENT.
4.1 Fees. In consideration for the subscription to the Service purchased by You under any Order Form, You shall pay Scope AR the Fees as specified in the applicable Order Form. All amounts are payable in United States dollars unless otherwise expressly stated in the applicable Order Form. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing & Payment. Fees for the Service will be invoiced on a monthly basis in advance, unless otherwise provided for in the applicable Order Form. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Scope AR
4.3 Overdue Payments. Any payment not received from You by the due date may accrue, at Scope AR’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Taxes. Unless otherwise stated, Scope AR’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on Scope AR’s net income or property. If Scope AR has the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide Scope AR with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Audit Rights. Scope AR shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and any other metrics regarding use, and to confirm Your compliance with this Agreement.
4.6 Suspension of Service. If Your account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Scope AR shall have the right to suspend the Service provided to You until such amounts are paid in full.
4.7 Future Functionality. You agree that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Scope AR regarding future functionality or features.
5. PROPRIETARY RIGHTS.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Scope AR reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 Restrictions. You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the App or Service; (b) circumvent any user limits or other timing or use restrictions that are built into the App or Service; (c) remove any proprietary notices, labels, or marks from the App or Service; (d) frame or mirror any content forming part of the App or Service, other than as necessary for the provision of the App or Service; (e) access the App or Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the App or Service; or (f) use all or any portion of the App or Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the App or Service could lead directly to death, personal injury, or severe physical or environmental damage.
5.3 Your Data. As between Scope AR and You, You exclusively owns all rights, title and interest in and to all Your Data. Your Data is deemed Your Confidential Information under this Agreement. Scope AR shall not access Your User accounts, including Your Data, except to respond to service or technical problems or at Your request or as necessary for the operation of the Service or billing. You hereby grant Scope AR and its Affiliates a royalty-free, non-exclusive, non-transferable (except as provided in Section 12.6 (Assignment)) irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to host, copy, display, use and otherwise exploit the Customer Data to the extent reasonably required for Scope AR to perform its obligations pursuant to this Agreement. The forgoing license shall include the right for Scope AR to use and copy Your Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Scope AR shall own all Aggregated Statistics created from Your Data.
5.4 Feedback. Scope AR shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by You or Your Users relating to the operation of the Service, provided that such Feedback does not contain any of Your Data or Confidential Information. For greater certainty, Scope AR shall have no obligation to modify the Service to implement any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users.
6.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is marked as confidential at the time of disclosure or which if disclosed orally is identified as confidential at the time of disclosure and for which a written summary, which is marked as confidential, is provided to the receiving party within thirty (30) days thereafter. Notwithstanding the foregoing, the Service and all pricing information, documentation, technology, specifications, technical information and the App and Service shall be deemed to be the Confidential Information of Scope AR. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties & Disclaimers.
7.1 General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
7.2 Service Warranties. Scope AR warrants that (i) the Service will perform in material conformance for its intended purpose; and (ii) the Service will not contain or transmit to You any known Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from You or an User). Any claim for any alleged breach of this Section 7.2 must be made within sixty (60) days of the date of such alleged breach and Scope AR shall only be liable for any direct damages incurred by You within the sixty (60) days after the occurrence of such breach and which are a result of such breach.
7.3 Your Warranties. You warrant that Your Data will not contain or transmit to Scope AR (i) any Malicious Code, or (ii) any personal information that it does not have consent to disclose, and that Your Data does not infringe any third party rights in its use of the Services.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SCOPE AR MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Mutual Indemnification.
8.1 Indemnification by Scope AR. Scope AR shall, at its own expense, defend You, Your Affiliates and Your and their respective officers, directors, employees, consultants and agents (collectively, the “Customer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Customer Indemnitees alleging that the Service (excluding Your Data or any Third Party Software) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed by Scope AR in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Customer Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for the defense and indemnification to be provided by Scope AR pursuant to this Section 8, You shall: (i) provide Scope AR with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give Scope AR sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with Scope AR, at Scope AR’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This Section 8 sets forth the entire liability of Scope AR and the exclusive remedy for You for patent, copyright or other proprietary or intellectual property right infringement or misappropriation.
8.2 Discontinuance. If an IP Claim has occurred, or in Scope AR’s opinion is likely to occur, Scope AR may discontinue Your use of the applicable portion of the App and/or Service, and Scope AR may in its sole discretion terminate the Agreement upon written notice to You and pay to You a pro-rata refund of Fees that were paid in advance, if any, in respect to time periods after the date of any such termination.
8.3 Exclusions. Scope AR shall have no obligations or liabilities to any of the Customer Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the