Updated: March 1, 2022
This CubiCasa GoToScan™ End User License Agreement (“Agreement”) is entered into between CubiCasa, Inc., a Delaware corporation, together with its subsidiaries and affiliates (collectively, “CubiCasa,” “we,” “us,” or “our”) and you, the person or legal entity using the CubiCasa software and/or mobile application (“you”) (collectively, the “parties,” or individually, a “party”). Please read this Agreement carefully. YOUR USE OF THE SERVICES AND APP ARE SUBJECT TO AN ARBITRATION PROVISION IN SECTION 10.5 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE REVIEW SECTION 10.5 CAREFULLY FOR MORE INFORMATION. By accessing or using the CubiCasa Services, you agree to be bound by the terms and conditions of this Agreement. Do not access or use Services or the App if you do not agree to this Agreement.
1.1. Services. CubiCasa’s proprietary software available through the CubiCasa mobile application (the “App”) allows you, the user, to scan a building with your mobile device to obtain the necessary property data to create a floor plan as well as provide appropriate support and maintenance (the “Services”). A customer who has entered into a corporate agreement with CubiCasa (the “Customer”) will provide you with a link to access the App. The link is valid for seven (7) days, but you may request an extension through the Customer for up to twenty-eight (28) days. Once the link is expired, you may not use it unless you extend the validity through API. Once you download the App, you may scan the building using the App with the camera on your mobile device. CubiCasa will then create a floorplan and related data based on the scan, which is sent directly to the Customer. Once you create a scan through the link sent by the Customer, you may not activate or use that link again.
1.2. License. Subject to your compliance with the terms of this Agreement, CubiCasa hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right to access and utilize the Services solely for in accordance with this Agreement.
1.3. Mobile Terms. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services or App on your mobile device. Your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services or the App, for data downloading, roaming, or other Mobile Provider or third-party services. You accept all responsibility for all Mobile Provider fees.
1.4. Ownership. CubiCasa holds all right, title and interest in and to the Services and the App, including without limitation all underlying software, data compilations and information, all materials related to the Services and the App and all intellectual property derived from the Services and the App, including without limitation, all patents, trademarks, copyrights, copyright related rights, database rights and trade secrets, notwithstanding that portions of the Services and the App may be derived in whole or in part from publicly available sources. You or Customer shall not reverse engineer the Services.
1.5. Modifications; Maintenance. CubiCasa reserves the right to, at any time, modify, update, suspend or discontinue the Services or the App without notice to you. We will not be liable to you or any third party for any modification, update, suspension, or discontinuation of the Services or the App or any part thereof. Further, CubiCasa is not obligated to provide any maintenance or support, technical or otherwise, for the Services or the App.
2. Your Obligations.
2.1. Access Termination. You may terminate your access to the Services by ceasing to use the Services and subsequently deleting the App from your mobile device. CubiCasa reserves the right to terminate your access to the Services at any time without notice or liability to you.
2.2. Prohibited Uses. You shall not use the Services for purposes other than as set forth in the Agreement. In furtherance thereof, you will not (i) resell the Services or any data received in connection therewith or otherwise disclose, disseminate, reproduce or publish any portion of the Services in any manner or permit the same; (ii) use the Services to create derivative products or other derivative works; (iii) modify, translate, alter, disassemble, decompile, manipulate or reverse engineer any portion of the Services; (iv) except for authorized users, permit any third party to use the Services; (v) create Internet “links” to or from the Services, or “frame” or “mirror” any content forming part of the Services, other than on its authorized users’ own intranets or otherwise for its own internal business purposes; (vi) send spam or other duplicative or unsolicited messages in violation of applicable laws; (vii) send or store infringing, discriminatory, obscene, threatening, libelous, hateful or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (viii) send through, store in or otherwise introduce to the Services, through its use or otherwise, a computer virus; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (x) attempt to gain unauthorized access to the Services or its related systems or networks. If you violate this section, we reserve the right to terminate your account and access to the Services and the App.
2.3. User Representations. You represent and warrant to CubiCasa that (i) you are at least eighteen years of age and have the right and authority to enter into this Agreement (alternatively, if you are entering into this Agreement on behalf of a company, organization, or entity, that you have the right and authority to legally bind such entity to this Agreement); (ii) you will provide and maintain true, accurate, current and complete information as prompted by the Services; (iii) you are solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you in connection with your use of the Services; (iv) you will not act in any manner which conflicts or interferes with any existing commitment or obligation you may have and no agreement previously entered into by you interferes with your performance of this Agreement; (v) you will only use the Services in the manner and for the purposes as permitted by this Agreement, or any agreement with the Customer; (vi) you will, at all times, comply with all applicable law, rules or regulations; (vii) Your Content (defined below) does not and will not violate, misappropriate, or infringe any third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other intellectual property rights; (viii) you have obtained all licenses and consents necessary to provide Your Content and any other information to CubiCasa; and (ix) Your Content uploaded to the Services is not discriminatory, obscene, threatening, libelous, hateful or otherwise unlawful or tortious. If you violate this section, we reserve the right to terminate your account and access to the Services and the App.
3. Proprietary Rights.
3.1. Your Content. You are the exclusive owner of any facts, information, or data made available by you to CubiCasa via the CubiCasa Service/App, including, without limitation, photos, scan imagery, and addresses (“Your Content”). You grant CubiCasa an exclusive, transferable, sub-licensable, irrevocable, royalty free, worldwide, perpetual license to (i) use, display, distribute and otherwise make available Your Content in any form for any purpose; (ii) use, alter, modify, copy, sell, transfer, or make derivative works from Your Content; and (iii) sublicense or pass through the rights to any derivative work created from Your Content by CubiCasa to third parties, including but not limited to the Customer. You hereby waive any moral rights or other rights with respect to attribution of authorship or integrity in Your Content.
3.2. Trademarks. “CubiCasa,” the CubiCasa logo and all CubiCasa product names are trademarks or service marks of CubiCasa or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that you shall have the limited right to use the Marks solely as they appear in the Services.
3.3. Feedback. CubiCasa shall have a royalty-free, worldwide, perpetual license to use or incorporate any suggestions, ideas, feedback, recommendations or other information provided by you relating to the Services and the App.
4. Retention of Content and Data.
You acknowledge and agree that the Services and the App are not intended to be for record retention and will not use them as such. If desired or required, you shall keep a copy of Your Content that you upload to the Services and App in another location and that CubiCasa is not liable to you for any corruption, loss or inability to access Your Content. You acknowledge and agree that Your Content and all data and information will be inaccessible to you after you complete using the Services and that we will not return Your Content or any data or information to you unless required by applicable legislation or we agree in writing to such return.
5. Term; Termination.
5.1. Term and Termination. This Agreement shall be effective as of your acceptance of such and will remain in full force and effect until either you or we terminate your access to the Services and the App. If you do not use the link provided to you by the Customer within seven (7) days (and up to twenty-eight (28) days if approved by Customer) and you have not requested an extension, then this Agreement and your access to the Services will automatically terminate.
5.2. Effects of Termination. Upon termination of this Agreement, neither party shall have any further obligations under this Agreement, and you shall cease to use the Services and the App. You shall also destroy all copies of the Services and the App in your possession, including on your mobile device. CubiCasa may immediately deactivate or delete your Account or terminate your access to the Services or the App, Your Content, all related information in your Account, and/or prohibit any further access by you to the Services. CubiCasa will not be liable to you or any third party, including the Customer, for any termination of your Account or your access to the Services.
5.3. Survival. The following sections shall survive the expiration or termination of this Agreement: §3 Proprietary Rights, §5 Term; Termination; §6 Warranty Disclaimer, §7 Limitation of Liability, §8 Indemnification, and §10 General, and any other sections which, by their very nature, are intended to survive the expiration or termination of this Agreement.
6. Warranty Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUBICASA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT. CUBICASA MAKES NO WARRANTY THAT THE SERVICES OR THE APP, INCLUDING ANY RELATED MATERIALS OR CONTENT, WILL BE MEET YOUR EXPECTATIONS OR REQUIREMENTS, THAT THE USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE RESULTS (INCLUDING WITHOUT LIMITATION THE FLOORPLAN) OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICE OR THE APP WILL BE ACCURATE, COMPLETE, OR RELIABLE, THAT DEFECTS IN THE SERVICES OR APP WILL BE CORRECTED, OR THAT THE SERVICES OR THE APP WILL BE ERROR FREE. CUBICASA WILL HAVE NO LIABILITY REGARDING LOSS OF DATA OR YOUR CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM ANY CONTENT OR MATERIALS DOWNLOADED OR OBTAINED THROUGH THE SERVICES OR THE APP.
7. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, CUBICASA’S TOTAL LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT AND/OR YOUR USE OF THE SERVICES IS RELATED TO DIRECT MONEY DAMAGES NOT EXCEEDING ONE HUNDRED US DOLLARS ($100.00 USD). THIS LIMIT IS CUMULATIVE AND THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THIS LIMIT. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL CUBICASA OR THE CUSTOMER BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE ARE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
To the extent permitted by applicable law, you shall indemnify, defend, and hold CubiCasa, its affiliates, employees and directors harmless from against any and all loss, liability, costs, claims, damages, expenses (including attorneys’ and legal fees), suffered, incurred or sustained by CubiCasa as a result of any claim, action or proceeding arising out of or related to: (i) your use or misuse of the Services; (ii) CubiCasa’s use of Your Content; (iii) your actual or alleged violation of this Agreement; (iv) your actual or alleged infringement or violation of any intellectual property, proprietary, or privacy rights of any third party; (v) injury to person or property arising from acts of negligence, bad faith, willful misconduct, or reckless disregard by you relating to this Agreement or the Services; or (vi) your actual or alleged violation of applicable law in connection with your use of the Services.
Certain information or content provided or collected from you by the Services or the App is subject to CubiCasa’s privacy notice, available at: https://www.cubi.casa/privacy-notice/.
10. General Provisions.
10.1. Waiver; Severability. Any failure on CubiCasa’s part to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
10.2. Assignment. This Agreement is not assignable, transferable or sublicensable by you except with CubiCasa’s prior written consent but may be assigned or transferred by us without restriction. Any attempted assignment by you in violation of this Section shall be void.
10.3. Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
10.4. Force Majeure. CubiCasa shall not be liable for any failure or delay in performing an obligation under this Agreement that is due to reason beyond our control, including without limitation, acts of God, accident, riots, war, terrorist act, epidemic, pandemic, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy.
10.5. Governing Law and Binding Arbitration. PLEASE READ THIS SECTION CAREFULLY AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Agreement shall be governed by and construed in accordance with the substantive laws of the state of California. To the extent permitted by applicable law, any dispute, controversy or claim arising out of or relating to this Agreement or the agreement between us or a breach, termination or invalidity hereof shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held in San Jose, California and the arbitration proceedings shall be conducted in English. The award shall be final and binding upon the parties and enforceable in any court of competent jurisdiction. Nothing in this Agreement shall be deemed to limit the right to seek interim injunctive relief or to enforce an arbitration award in any court of law.
10.6. Changes. We reserve the right, at our sole discretion, to modify or revise this Agreement at any time without prior notice to you. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Services or the App.
11. Additional Terms Applicable to iOS Devices.
The following terms only apply if you install, access, or use the App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use the App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
11.1. Acknowledgement. You acknowledge that this Agreement is concluded solely between the parties, and not with Apple. CubiCasa, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App (the “Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
11.2. Scope of License. The license granted to you is limited to a non-transferable license to use the App on any Apple-branded products that you own or control as permitted by the Usage Rules.
11.3. Maintenance and Support. You and CubiCasa acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
11.4. Warranties. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of CubiCasa. However, you understand and agree that in accordance with this Agreement, CubiCasa has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
11.5. Product Claims. You and CubiCasa acknowledge that as between Apple and CubiCasa, CubiCasa, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to the App or your possession and/or use of the App, subject to CubiCasa’s indemnification rights, including, but not limited to (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
11.6. Intellectual Property Rights. The parties acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, CubiCasa, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
11.7. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
11.8. Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the App.
11.9. Third-Party Beneficiary. The parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
12. Contact Us.
If you have any questions or comments about this Agreement, the Services or the App, please contact us at firstname.lastname@example.org