Last Updated: [1-6-2022]
At Beyond View, Inc. (“BeyondView” or “we”) we are dedicated to helping owners and managers of commercial real estate bring digital life to their physical spaces. By signing a BeyondView Order Form, the individual or entity that is a party to the Order From (“you”) is agreeing to these Customer Terms of Service (“Customer Terms”). In these Customer Terms, we refer to the Order Form and these Customer Terms together as the “Agreement” and we refer to the real estate space identified in your applicable Order Form as your “Space.”
Our services include the subscription services provided through the BeyondView platform and professional services. Your Order Form identifies which of our services will be provided to you.
The BeyondView Platform
The BeyondView platform is a remote, cloud-based, multi-platform application that allows customers to upload information about their Space, view and interact with Visualizations (as defined below) of their Space, and manage their account. During the term of your Order Form (“Order Term”), you, your brokers, your property managers, and your and their employees, consultants and contractors (collectively, “Authorized Users”) are authorized to access and use the features of the BeyondView platform identified in your Order Form. Access and use of the BeyondView platform is not transferable or sublicensable and you are responsible for your Authorized Users’ use of the BeyondView platform. Your Authorized Users will be required to agree to our User Terms of Service as a condition of their access and use of the BeyondView platform, and we may deny access and use to any Authorized User that fails to agree to our User Terms of Service, or violates our User Terms of Service. Our User Terms of Service are located at https://beyondview.com/terms-of-service/, and are incorporated herein by reference.
Except for this right of access and use, we are not granting any interest and we retain all interest in our Models, Visualizations, software, code, technical documentation, or the BeyondView platform. You and your Authorized Users may make Visualizations available to your tenants or potential tenants for evaluation of the Space, by making a related URL link available.
You may not directly or indirectly copy, modify, distribute, sell, export, re-export, or lease any part of our services or software. Also, you may not directly or indirectly reverse engineer or attempt to extract any source code, use our services for any unlawful purpose, or upload to the BeyondView platform any infringing or malicious code or content.
Our professional services, such as consulting and implementation, are designed to assist you with the use of the BeyondView platform and we retain all interest in our professional services.
Our technical support team is typically available from 9:00am to 5:00pm, Monday through Friday and may be reached by emailing firstname.lastname@example.org.
In order for us to perform our services, your cooperation may be required. For instance, we may need to physically access your Space to take photographs or video, or we may request that you take photographs or video of your Space. Of course, we will work with you to avoid unreasonably disturbing your tenants. If you choose to give us feedback, such as suggestions to improve the Services, we may act on your feedback without obligation to you.
How We Use Information About Your Space
We use publicly available information, information you provide to us, and/or information you ask us to collect for you, to create mathematical models of the floorplan, configuration, dimensions, and other characteristics of your Space (“Models”). This information may include photographs, videos, floorplans, and other information. Once we have created a Model, we render visualizations of your Space, such as still shots, flythrough videos, 3D panoramas, live guided tours, data overlays, and other visual content (“Visualizations”) for you and your potential tenants to view and interact with. We may also use information about your Space to improve and enhance our services, for our marketing purposes, and for other business purposes.
Except for any Sensitive Information (as defined below), you grant us a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store, transmit, modify, create derivative works of, and display information about your Space, for the above purposes. Our use of information regarding your Space will not identify your space, or any existing or prospective tenant or occupant, except as necessary for us to provide our services to you.
Sensitive and Proprietary Information
If you would like us to exclude certain potentially sensitive, non-public information from our Models and Visualizations, such as people, artwork, drawings, documents, logos, white board writings, laboratory equipment configurations, or other purely cosmetic elements that may have been present in your Space when photographs or videos were captured, please identify the applicable information for us in writing (the “Sensitive Information”). We will treat the Sensitive Information as Confidential Information (as defined and subject to the exceptions below) and we will exclude it from our Models and Visualizations.
If you ask us to include a specific visual element, such as a logo or piece of art, you are representing to us that you have the necessary rights and licenses and you are granting us the necessary rights and licenses to use that visual element for the purpose of providing our services to you.
Fees And Payment
In addition to the fee and payment terms on your Order Form, the following fee and payment terms apply:
- invoices are due 30 days after receipt and late payments shall be subject to interest that accrues at the lower of 1.5% per month or the highest rate permitted by law, plus costs of collection;
- fees must be paid in United States dollars;
- fees are based on products and services purchased and not actual usage, and are non-cancellable and non-refundable;
- fees do not include, and you are solely responsible for, any and all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of BeyondView;
- if your subscription is renewed, we may adjust the fees for our services by providing written notice to you at least 60 days prior to the expiration of the then current subscription term; and
- we may adjust fees for our services to reflect upgrades or downgrades in your subscription, including moving from a free trial to a paid subscription.
For as long as either party possesses any Confidential Information of the other party, and except as otherwise required by law, each party agrees not to use or disclose any Confidential Information of the other party to any third party or use any of the Confidential Information except for the purpose of performing that party’s obligations under the Agreement, provided that such third party is subject to terms of confidentiality no less restrictive than these. Confidential Information includes without limitation information concerning marketing plans, the relationship of the Parties, financial results, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and benchmarking data. Upon termination of these Terms or all Order Forms, a Party shall destroy or return, upon the other Party’s request, all Confidential Information in its possession
Confidential Information does not include information that:
- was rightfully in the receiving party’s possession or known to it prior to receipt of the information;
- is or has become generally available to the public through no fault of the receiving party;
- is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or
- is independently developed by the receiving party.
Each Party represents and warrants that it has the power and authority to execute the Agreement and to deliver and perform its obligations under the Agreement.
We warrant that the BeyondView platform will operate in all material respects according to applicable technical documentation and that any professional services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. Your sole and exclusive remedy, and our sole liability, for any breach of this warranty shall be for us to correct or re-perform the relevant services at our expense.
You represent and warrant that neither you, nor your Authorized Users are prohibited from receiving our services under the laws of the United States or other applicable jurisdiction, by reason of any export control laws or regulations, or any other reason.
Except for the limited warranty in this section, BeyondView does not make any warranties, including implied warranties such as the implied warranty of merchantability, fitness for a particular purpose, and non-infringement.
Indemnification And Liability
These Customer Terms only limit responsibilities and liability as allowed by applicable law.
We will indemnify you and your directors, officers, employees, and contractors (“Associates”) for any third-party legal proceedings (including actions by government authorities) arising out of or relating to the alleged infringement or misappropriation of a copyright, trade secret, trademark or United States patent caused by you or your Authorized Users’ authorized use of our services. If any claim which we are obligated to defend has occurred, or in our determination is likely to occur, we may, in our sole discretion and as your sole and exclusive remedy for any claim of intellectual property infringement, either:
- obtain for you the right to use the allegedly infringing service;
- substitute a non-infringing replacement for the service; or
- terminate the Agreement and refund to you a pro-rated amount representing the fees for any services that you have paid for and have not received.
You’ll indemnify and defend BeyondView and its Associates arising out of or relating to your or your Authorized Users’ unauthorized use of the services or violation of these Customer Terms. The indemnity in this section covers any liability or expense arising from claims, losses, damages, judgments, fines, litigation costs, and legal fees.
Limitation of Liability
Except for liability from indemnification obligations in these Terms, breach of confidentiality, your failure to pay our fees, or your unauthorized use or misuse of our services, neither party will be responsible for the following liabilities:
- loss of profits, revenues, business opportunities, goodwill, or anticipated savings;
- indirect or consequential loss;
- punitive damages; and
- aggregate amounts greater than the fees that you paid to use the relevant services in the 12 months before the breach.
Personal Injury and Property Damage
Each Party shall indemnify, defend and hold harmless the other Party from and against any Losses arising from any bodily injury or death to any person, or any property damage to any tangible property, to the extent the injury, death or property damage is caused by the willful misconduct or negligent acts or omissions of the indemnifying party.
Indemnification Procedure and Limitations
The indemnifying party’s indemnification obligation is subject to the indemnifying party receiving:
- prompt written notice from the indemnified party of such claim (but in any event, notice in sufficient time for the indemnifying party to respond without prejudice);
- the exclusive right to control and direct the investigation, defense, or settlement of such claim; and
- all reasonably necessary cooperation of the indemnified party at the indemnifying party’s expense.
A party’s duty to indemnify under the Agreement shall be limited to the extent that the third-party legal proceeding arises out of the gross negligence or intentional misconduct of the Party seeking indemnity or its Associates.
Term And Termination
The Order Term includes the initial subscription term and any renewal subscription terms. When the initial subscription term expires, the Order Form will automatically renew for additional 1 year renewal subscription terms, unless either Party provides written notice to the other Party of non-renewal at least 30 days prior to the then-current subscription term.
These Customer Terms begin on your Order Form’s effective date and remain in effect, until terminated according to these Customer Terms. Termination of these Customer Terms will automatically terminate all Order Forms.
Either Party may terminate these Customer Terms or an Order Form as follows:
- on 30 days written notice if the other Party breaches any material provision of these Customer Terms and does not cure the breach before the end of the cure period;
- effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder; or
- if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if the proceeding is instituted against that Party (and not dismissed with sixty (60) days thereafter).
Additionally, we may immediately suspend your access to the BeyondView platform if your account is 10 days or more overdue or if we believe in good faith that you or your Authorized Users are engaging in unauthorized use of the BeyondView platform.
Effect of Termination
Upon termination or expiration of these Customer Terms or an Order Form:
- your access to, and use of, the applicable services shall immediately cease;
- any of your accrued payment obligations (including those payment obligations arising in the then-current subscription term) will become due 15 days following the termination or expiration; and
- you will not be entitled to any refund of any prepaid amounts.
Updates to Customer Terms
We may update these Customer Terms:
- to reflect changes in our services or how we do business, such as the addition of services or changes in pricing;
- for legal or security reasons; or
- to prevent harm to you, us, or third-parties.
We will provide you with reasonable advance notice of material changes to these Customer Terms and you will have the right to terminate the Agreement within 30 days of such notice, by providing notice to us, in which case we will refund a pro-rated amount representing the fees for any services that you have paid for and have not received.
Except for any subcontractors under the Agreement, neither Party may assign the Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without the other Party’s prior written consent; provided, however, either Party may assign the Agreement, without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under the Agreement in breach of the previous sentence shall be void and of no effect.
Third Party Offerings
Certain third-party providers offer products and services that may be compatible with our services and may be made available to you through our services and website. We do not warrant and are not liable for any offering from a third-party, including but not limited to third-party offerings that you may receive by making payments to us, third party offerings listed on an Order Form, and third-party offerings that we may designate as “certified,” “validated” or otherwise. Third-party offerings are provided pursuant to the terms of the applicable third-party agreement between you and the third-party provider.
The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under the Agreement (except for Your obligation to pay fees) if the delay or failure to perform is due to unforeseen events which are beyond the reasonable control of such Party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, epidemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Any Party claiming a Force Majeure Event must provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of the Force Majeure Event. If the Force Majeure Event prevents the Party from substantially performing its obligations for a period of 10 days or more, either Party may terminate the Agreement on 5 days written notice.
If any provision of the Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement will otherwise remain in effect, provided that the fundamental terms of the Agreement remain legal and enforceable.
Governing Law; Jurisdiction and Venue
The Agreement will be governed by the laws of the United States and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to the Agreement. The Parties submit to the exclusive jurisdiction of, and waive any jurisdiction or venue objections against, the state and Federal courts located in San Francisco County, California.
Any notice or communication required or permitted under the Agreement must be in writing to the Party at their address identified on the Order Form, or another address given in writing by that Party to the other to the other Party. Notices are deemed received by the addressee:
- immediately upon receipt, if given by hand;
- the first business day following dispatch, if given by overnight courier service; or
- if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
These Customer Terms, together with each Order Form, are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of the Agreement. Purchase orders (and similar documents) that you may issue are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in your purchase order shall not apply (even if the purchase order is accepted, or performed on by BeyondView). In the event of a conflict between any Order Form and these Customer Terms, the Order Form will control.