Niantic Spatial Business and Developer Terms

These Business and Developer Terms (the “Terms”) govern the access and use of the application programming interfaces (APIs), software development kits (SDKs) and related resources, products, services and documentation (collectively, the “Business and Developer Resources”) made available by Niantic Spatial, Inc. (“Niantic Spatial”), including through the websites located at nianticspatial.com and scaniverse.nianticspatial.com (the “Sites”) and the Scaniverse mobile application (the “Scaniverse App”), unless you and Niantic Spatial have entered into a separate written agreement with respect to the Business and Developer Resources. Please read these Terms carefully before you access or use the Business and Developer Resources, as they constitute a legal contract between you and Niantic Spatial.

To use the Business and Developer Resources under these Terms, you must be a company or other legal entity, or a developer of Application(s) (as defined below). These Terms do not apply to any individual’s access and use of the Business and Developer Resources or other Niantic Spatial’s product or service for personal, non-commercial purposes, which are governed by the Niantic Spatial Terms of Service instead. If you are accessing and using the Business and Developer Resources on behalf of a company or other legal entity (such as your employer), you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.

By accessing or using the Business and Developer Resources, you agree to be bound by these Terms. You may not access or use the Business and Developer Resources if you do not agree to these Terms.

1. Definitions

1.1. “Aggregate Data” means data collected, derived or aggregated in deidentified form from: (i) User Materials; or (ii) Developer’s and/or its Authorized Individuals’ access and use of the Business and Developer Resources, including, without limitation, any usage data or trends with respect to the Business and Developer Resources.

1.2. “Application(s)” means any software program, application or project developed by you that uses or integrates any part of the Business and Developer Resources.

1.3. “Authorized Individuals” means the individuals who you designate as authorized to access and use the Business and Developer Resources through your Account in accordance with these Terms.

1.4. “Documentation” means any developer documentation, usage guidelines, explanatory materials and any other written documentation made available by Niantic Spatial now or in the future for the Business and Developer Resources.

1.5. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.6. “Niantic Spatial API” means any application programming interface provided to you by Niantic Spatial, including through the Sites or the NSDK.

1.7. “Niantic Spatial Developer Policy” means the Niantic Spatial Developer Policy, as amended from time to time, which is hereby incorporated into this Terms by reference.

1.8. “Niantic Spatial IP” means (i) the NSDK, the Niantic Spatial API and all other Business and Developer Resources; (ii) interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Business and Developer Resources; (iii) Updates; (iv) Aggregate Data; (v) improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship); and (vi) all Intellectual Property Rights in and to any of the foregoing.

1.9. “NSDK” means any software development kit provided to you by Niantic Spatial, including through the Sites.

1.10. “Services” means services that Niantic Spatial provides or makes available to you, including through the Sites or the Scaniverse App, and which may require the use of the NSDK or  any Niantic Spatial API, including, without limitation, the visual positioning system (VPS) services and the reconstruction services.

1.11. “Updates” means bug fixes, enhancements, modifications, updates, upgrades, new releases and new versions of the Business and Developer Resources or any part thereof (including, without limitation, the NSDK and Niantic Spatial APIs).

1.12. “User Materials” means any content and other materials, in any form or medium, that you (or end users of your Application(s)) submit, send, transfer or otherwise provide to Niantic Spatial, either directly or via your Application(s), in connection with your Account or your use of the Business and Developer Resources, including, without limitation, video recordings, scans or images of real-world objects and public and private spaces and associated metadata.

2. Account

2.1. General

You must have an account to access the Business and Developer Resources (your “Account”).

2.2. Credentials

As part of your Account, Niantic Spatial may provide you with credentials for each Authorized Individual. You are responsible for all acts or omissions by your Authorized Individuals in connection with their use of the Business and Developer Resources and their compliance with these Terms. Credentials are meant to be used only by you and, if applicable, to identify your Application. You agree to only access a Niantic Spatial API or Service by methods described in the relevant Documentation and using the credentials Niantic Spatial provides to you. You agree not to hide or misrepresent your identity or your Application’s identity when using the Account or any Niantic Spatial API or other Business and Developer Resource. You will ensure that any credentials provided to you are not transferred to or shared with any individual who is not an Authorized Individual. You will, and will require all Authorized Individuals to, use all reasonable means to secure credentials, hardware and software used to access the Business and Developer Resources in accordance with customary security protocols, and will promptly notify Niantic Spatial if you know or reasonably suspect that any credential has been compromised. You are solely responsible for all activities that occur under your Account, for the User Materials you provide through your Account and for all Applications developed by you.

3. Your Use of the Business and Developer Resources

3.1. Limited License

Subject to your compliance with these Terms and subject to any limitations set forth herein, Niantic Spatial grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to (a) download, install, access and use the NSDK and (b) access and use the other Business and Developer Resources solely for:

1. your general business purposes; and

2. the purpose of designing, creating, developing, testing, publishing, distributing, marketing, promoting and/or supporting your Application(s);

3. in each case, in accordance with these Terms and all applicable Documentation.

3.2. Compliance; Restrictions

You will use the Business and Developer Resources in compliance with all applicable laws and regulations and the Niantic Spatial Developer Policy. You will not and will not permit any person or entity (including, without limitation, Authorized Individuals) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Business and Developer Resources; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Business and Developer Resources, in whole or in part, except to the extent that the restriction on reverse engineering is expressly prohibited by applicable law; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Business and Developer Resources to any other person or entity, or otherwise allow any person or entity to use the Business and Developer Resources for any purpose other than for your benefit in accordance with these Terms; (iv) interfere with, or disrupt the integrity or performance of, the Business and Developer Resources, Niantic Spatial’s computer systems or any data or content contained therein or transmitted thereby; (v) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Niantic Spatial or any of Niantic Spatial’s licensors or providers or any other third party (including another user) to protect the Business and Developer Resources; (vi) remove, obscure, or modify any Niantic Spatial or third-party terms of service or any links to or notices of those terms; (vii) remove, obscure, or modify any proprietary, copyright or other notices contained in the Business and Developer Resources; (viii) use the Business and Developer Resources in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law;  (ix) use the Business and Developer Resources or any Output for purposes of monitoring the availability, performance, or functionality of any Business and Developer Resource or for any other benchmarking or competitive analysis purpose, or to develop, commercialize, license or sell any product, service or technology that competes with the Business and Developer Resources; (x) introduce to Niantic Spatial’s servers, network, properties, services, software or technologies any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature; (xi) access or search the Business and Developer Resources (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or features provided by Niantic Spatial  for use expressly for such purposes; (xii) post, upload submit or transmit any User Materials that infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy, or violates any applicable law or regulation. Niantic Spatial may set and enforce limits on your use of Niantic Spatial API (such as limiting the number of API calls that you can make or the number of users that you serve) or  other Business and Developer Resources at its sole discretion without notice.

3.3. Third-Party Software and Open Source Software

The NSDK and other Business and Developer Resources may include third party software, including open source software, and such software is made available to you under the terms of the applicable license. You are solely responsible for complying with all such licenses.

3.4. Third-Party Services

The Sites and the Services may enable you and your Authorized Individuals to interface or interact with, access and/or use compatible third-party services, products and technology (collectively, “Third-Party Services”). Niantic Spatial does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Sites or the Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for obtaining any associated licenses and consents necessary for your use the Third-Party Services.

3.5. Your Application(s)

You are solely responsible for your Application(s). You will not permit any third-party user to use your Application(s) unless such user is subject to a written agreement with you for the Application(s) that is consistent with these Terms and protects Niantic Spatial and its Intellectual Property Rights to at least the same degree as these Terms. You will ensure your Application(s) adhere to industry-best security and privacy practices. You represent and warrant that your Application(s): (i) do not and will not contain any security vulnerabilities; and (ii) operate and will operate with the Business and Developer Resources in a secure manner.

3.6. Monitoring

Niantic Spatial may monitor your use of the Business and Developer Resources for quality control, to determine any applicable Fees and/or to ensure that you are in compliance with these Terms. You agree not to interfere with this activity, and Niantic Spatial reserves the right to use any technical means to overcome any interference. Niantic Spatial may suspend your access to the Business and Developer Resources without notice if it reasonably believes that you are in violation of these Terms.

3.7. Supplemental Terms

You acknowledge and agree that use of certain Business and Developer Resources may be subject to supplemental terms and conditions (the “Supplemental Terms”), which will be communicated to you through the Sites or the Scaniverse App or otherwise in writing by Niantic Spatial. You agree to comply with all such Supplemental Terms that apply to your use of the Business and Developer Resources.

4. Updates and Other Changes

4.1. Updates

Niantic Spatial may, but has no obligation to, release Updates at any time without notice. You acknowledge and agree that any Update may require you to download new or different copies of the Business and Developer Resources and/or make changes to your Application(s) at your own cost, and may impact your ability to access or use the Business and Developer Resources.

4.2. Discontinuing Business and Developer Resources

Because the Business and Developer Resources are evolving over time, Niantic Spatial may discontinue all or any part of the Business and Developer Resources, at any time, at its sole discretion. If Niantic Spatial discontinues any Business and Developer Resources, it will use commercially reasonable efforts to notify you in advance.

5. Beta Resources

From time to time, Niantic Spatial may make available to you certain Business and Developer Resources on a trial, evaluation, alpha, beta, preview or similar pre-general availability basis  (each, a “Beta Resources”). Beta Resources may be subject to Supplemental Terms, which you must accept as a condition of accessing or using the applicable Beta Resource.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BETA RESOURCES ARE PROVIDED “AS IS” AND SUBJECT TO THE DISCLAIMERS IN SECTION 13, AND WITHOUT ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR INDEMNITIES OF ANY KIND. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NIANTIC SPATIAL WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE BETA RESOURCES, INCLUDING ANY HARM OR DAMAGE CAUSED BY OR RESULTING FROM THE BETA RESOURCES OR YOUR ACCESS TO OR USE THEREOF. Niantic Spatial does not warrant that any Beta Resource will ever be made generally available, or that any generally available version of any Business and Developer Resource will contain the same or similar functionality as its Beta Resource.

6. Fees and Usage Limits

6.1. General

You acknowledge and agree that Niantic Spatial may charge fees (the “Fees”) and/or apply usage limits (the “Usage Limits”) for the use of some or all of the Business and Developer Resources. Fees and Usage Limits may be based on volume of API calls, monthly active users or any other usage-based or computation method determined by Niantic Spatial at its sole discretion. If you are using a paid Business Developer Resource, you agree to pay all applicable Fees to Niantic Spatial in accordance with these Terms and the applicable Service plan. Niantic Spatial may modify the Fees, Usage Limits and Service plans at any time, and it will notify you of any such changes in advance. You agree to not circumvent any applicable Usage Limits, or to direct excessive traffic (as determined by Niantic Spatial, at its sole discretion) to the Niantic Spatial servers, or to circumvent any computation by Niantic Spatial of your usage for the purpose of calculating any Fees due.

6.2. Payment Terms

Unless otherwise agreed in writing by Niantic Spatial and you, Niantic Spatial will charge your selected payment method (such as a credit card) for any Fees on the applicable payment date, including any applicable taxes.  If Niantic Spatial cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and Niantic Spatial will attempt to charge the payment method again as you may update its payment method information. If you fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Niantic Spatial may suspend the Business and Developer Resources until all payments are made in full. You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Niantic Spatial hereunder, other than any taxes imposed on Niantic Spatial’s income. All Fees are payable in US dollars and are non-refundable.

7. Publicity

You agree to credit the Niantic Spatial brand name in your Application(s) and to prominently feature the applicable Niantic Spatial logo on your Application’s landing screen, in accordance with Niantic Spatial brand guidelines, which are available upon request at https://www.nianticspatial.com/contact or https://www.nianticspatial.com/capture/contact-sales, or that may otherwise be provided to you by Niantic Spatial from time to time (such as through the Documentation).

8. Privacy

8.1. Niantic Spatial Business and Developer Privacy Policy

You acknowledge and agree that, in connection with your use of the Business and Developer Resources, we may collect, use, disclose, store, and otherwise process personal information about or provided by you in accordance with the Niantic Spatial Business and Developer Privacy Policy. The foregoing does not apply to personal information collected through your Application(s).

8.2. Personal Information Collected via Your Application(s)

Niantic Spatial may collect, use, disclose, store, and otherwise process (through the NSDK or otherwise) personal information provided through your Application(s) in accordance with the Niantic Spatial Controller-Controller Data Processing Agreement, the terms of which are incorporated herein by reference.

8.3. Your Compliance Obligations

You agree that you and your Application(s) will comply at all times with all applicable privacy laws and regulations with respect to any processing of personal information you or your end-users carry out. Without limiting the foregoing, you will publish a privacy policy for your Application(s) that fully and accurately describes your collection, use, disclosure, storage, and processing of personal information. In addition, you will disclose in your privacy policy that your Application(s) have functionalities powered by  Business and Developer Resources and that any related collection and processing of personal information by Niantic Spatial is governed by the Niantic Spatial Privacy Policy at https://nianticspatial.com/privacy.

9. Ownership and Use

9.1. Niantic Spatial IP

9.1.1. As between you and Niantic Spatial, Niantic Spatial reserves and will solely own the Niantic Spatial IP and all rights, title and interest therein, subject to the limited rights expressly granted to you under these Terms. No rights are granted by Niantic Spatial hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

9.1.2. Niantic Spatial may currently be developing, or may develop in the future, technologies, products and services that are or may be similar to, or compete with, your Application(s) or other products that you may develop. Nothing in these Terms will impair or limit Niantic Spatial’s right to develop, maintain and/or distribute any of its technology, products or services.

9.2. Your Application(s) and User Materials

9.2.1. As between you and Niantic Spatial, you reserve and will solely own all right, title and interest in and to your Application(s) (excluding, for clarity, the Business and Developer Resources integrated therewith) and the User Materials, subject to Section 9.2.2.

9.2.2. You hereby grant Niantic Spatial a non-exclusive, worldwide, transferable, sub-licensable, royalty-free,  perpetual (or, if not permitted under applicable law, a license for the whole duration, including for any extension thereof, of all relevant rights under any applicable law), right and license to host, use, reproduce, display, perform, modify and create derivative works based upon, the User Materials and the Output (by any means and in any form) solely: (i) for the purpose of (a) operating, improving and providing the Business and Developer Resources to you and others, (b) developing, improving and training Niantic Spatial’s and its affiliates’ technology and products and services, including, without limitation, semantic and geospatial models and other artificial intelligence and machine learning algorithms and models, and (c) developing or deriving Aggregate Data; and (ii) as otherwise required by applicable law.

9.3. Output

Certain Services may generate output such as digital 3D models or “digital twins” of real-world objects and locations based on your User Materials (the “Output”). The Output may be made available to you in different formats depending on the service plan or tier applicable to you. As between Niantic Spatial and you, to the extent permitted by applicable law and subject to Sections 9.1.1 and 9.2.2, you own all right, title and interest in and to all Output generated in response to your User Materials. If any rights, title and interest in or to such Output vests in Niantic Spatial, then Niantic Spatial hereby assigns such rights, title or interest to you.

10. Feedback

From time to time, you or your employees, contractors, or representatives (including Authorized Individuals) may provide Niantic Spatial with suggestions, comments, feedback or the like with regard to the Business and Developer Resources (collectively, “Feedback”). You hereby grant Niantic Spatial a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Niantic Spatial’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Business and Developer Resources. You acknowledge and agree that Niantic Spatial is not under any obligation of confidentiality with respect to the Feedback, or any obligation to use any Feedback.

11. Representations and Warranties

You represent and warrant that: (i) you are at least 18 years of age (or the legal age of majority in your country of residence, if different), you are legally able to enter into a contract, and, if you are acting on behalf of an entity, you have the authority to act on its behalf and to bind it to these Terms; (ii) you are not named on, owned by, or acting on behalf of any U.S. government denied-party list; (iii) you will implement and comply with appropriate data privacy and security measures in connection with any personal information collected, used, disclosed, stored, or otherwise processed by your Application(s), and you have all necessary consents required for the processing by Niantic Spatial or its affiliates or processors/sub-processors of such personal information as contemplated by these Terms; (iv) you have and will retain all necessary licenses, rights, permissions, and clearances (including from any third parties) required to perform your obligations under these Terms and to grant Niantic Spatial all rights and licenses as set forth in these Terms; and (v) neither your User Materials, nor your use and provision of your User Materials through the Business and Developer Resources, nor any use of your User Materials by Niantic Spatial in accordance with these Terms will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

12. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, hold harmless and defend at your expense, Niantic Spatial, its affiliates and licensors and their respective officers, directors, employees, and agents (the “Indemnified Parties”), from against any and all claims, actions, proceedings, and suits (“Claims”) brought against any of the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses), or other losses incurred by the applicable Indemnified Parties, arising out of or relating to: (i) your Application(s); (ii) your breach of these Terms; (iii) your misuse of the Business and Developer Resources or your Account; (iv) any User Materials;  or (v) your violation of any applicable law and regulation, or any third-party Intellectual Property Rights, rights of publicity or privacy or other rights, in connection with your use of the Business and Developer Resources or your Account. Niantic Spatial will provide you with written notice of any Claim for which you must indemnify Niantic Spatial or another Indemnified Party. You will not compromise or settle any such Claim in any manner, nor make any admission of liability, without Niantic Spatial’s prior written consent, which Niantic Spatial may provide at its sole discretion. You will cooperate as fully as reasonably required in the defense of any Claim. Niantic Spatial reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by you.

13. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY LAW, THE BUSINESS AND DEVELOPER RESOURCES AND OTHER NIANTIC SPATIAL IP ARE PROVIDED ON AN “AS IS” BASIS, AND NIANTIC SPATIAL MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED INDIVIDUALS OR TO ANY OTHER PARTY REGARDING THE BUSINESS AND DEVELOPER RESOURCES, THE NIANTIC SPATIAL IP OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIANTIC SPATIAL HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, NIANTIC SPATIAL HEREBY DISCLAIMS ANY WARRANTY THAT: (I) USE OF THE BUSINESS AND DEVELOPER RESOURCES WILL BE ERROR-FREE, BUG-FREE, UNINTERRUPTED, TIMELY, ACCURATE OR SECURE; (II) THE BUSINESS AND DEVELOPER RESOURCES WILL MEET YOUR EXPECTATIONS; OR (III) ANY INFORMATION AVAILABLE THROUGH THE BUSINESS AND DEVELOPER RESOURCES (INCLUDING THE OUTPUT) WILL BE TIMELY, ACCURATE OR RELIABLE.

THE BUSINESS AND DEVELOPER RESOURCES MAY IN SOME SITUATIONS PRODUCE INFORMATION (INCLUDING OUTPUT) THAT IS INACCURATE, INCORRECT OR OTHERWISE UNDESIRABLE. NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, NIANTIC SPATIAL WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE RELATING TO OR ARISING FROM ANY SUCH INFORMATION (INCLUDING THE OUTPUT) OR USER MATERIALS. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE CONTENT, NATURE AND ACCURACY OF ANY SUCH INFORMATION (INCLUDING THE OUTPUT),  AS WELL AS THE SUITABILITY OF THE BUSINESS AND DEVELOPER RESOURCES, AS APPROPRIATE FOR YOUR APPLICABLE USE CASE.

You acknowledge and agree that Niantic Spatial makes no warranty in relation to the availability or uptime of the Business and Developer Resources, and that it is not obligated to provide you with any technical or other support in relation with the Business and Developer Resources or any Updates. If Niantic Spatial does provide any support, such support may be conditioned upon your acceptance of additional obligations and/or fees.

14. Limitation of Liability

14.1. Exclusion of Damages

TO THE FULLEST EXTENT PERMITTED BY LAW, NIANTIC SPATIAL WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE BUSINESS AND DEVELOPER RESOURCES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT NIANTIC SPATIAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

14.2. Total Liability

IN NO EVENT WILL NIANTIC SPATIAL’S TOTAL CUMULATIVE LIABILITY TO YOU ARISING FROM ALL CLAIMS UNDER OR RELATED TO THESE TERMS OR THE BUSINESS AND DEVELOPER RESOURCES EXCEED THE HIGHER OF (I) THE FEES ACTUALLY PAID BY YOU TO NIANTIC SPATIAL IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THESE TERMS, OR (II) ONE HUNDRED US DOLLARS (US$100); IN EACH CASE, LESS ALL AMOUNTS PAID BY NIANTIC SPATIAL TO YOU FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THESE TERMS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT NIANTIC SPATIAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

14.3. Basis of the Bargain

YOU AND NIANTIC SPATIAL HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NIANTIC SPATIAL, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

15. Term and Termination

15.1. Term

These Terms will continue in effect until terminated by either you or Niantic Spatial as set forth in this Section 15.

15.2. Termination

You may terminate these Terms at any time by ceasing your use of the Business and Developer Resources and cancelling your Account. Niantic Spatial may terminate these Terms and/or suspend or terminate your Account or your access and use of any Business and Developer Resource at any time for any reason, including if you have breached any provision of these Terms or if Niantic Spatial is required to do so by law or at the request of governmental entities, or if Niantic Spatial discontinues the applicable Business and Developer Resource.

15.3. Effect of Termination

Upon any termination of these Terms, your (and your Authorized Individuals’) right to access and use the Business and Developer Resources pursuant to these Terms will immediately terminate and you will immediately: (i) cease all access and use the Business and Developer Resources and any portion thereof; and (ii) permanently uninstall and delete all copies of the Business and Developer Resources in your computer systems or otherwise in your possession or control (and upon request by Niantic Spatial, you will certify in writing that you have complied with such obligation). In addition, all Fees owned by you under these Terms will become immediately due. This Section 15.3 and the following Sections of these Terms will survive its termination: Sections 6, 8.1, 8.2, 9.1, 9.2, 10, 12, 13, 14, 16 and 17.

16. Governing Law and Dispute Resolution

These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in Northern District of California and you and Niantic Spatial irrevocably consent to the personal jurisdiction and venue therein.

17. General

17.1. Modifications

Niantic Spatial may modify any of these Terms, at any time and at its sole discretion, by posting notice on the Sites or the Scaniverse App or by otherwise notifying you.  If any modification is unacceptable to you, your only recourse is to terminate these Terms and stop using the Business and Developer Resources.  Your continued access and use of the Business and Developer Resources following such notice will constitute your acceptance of the modified Terms.

17.2. Entire Agreement

These Terms, together with any applicable Supplemental Terms, constitute the entire and exclusive understanding and agreement between Niantic Spatial and you regarding the Business and Developer Resources, and supersede and replace all prior oral or written understandings or agreements between Niantic Spatial and you regarding the Business and Developer Resources. If there is a conflict between any provision of these Terms and of the Supplemental Terms, the Supplemental Terms will prevail but only with respect to the Business and Developer Resources governed by such Supplemental Terms.

17.3. Severability

If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

17.4. Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Niantic Spatial’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null. Niantic Spatial may freely assign or transfer these Terms (in whole or in part) without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

17.5. No Agency or Third-Party Beneficiaries

These Terms do not create any agency, partnership, or joint venture between the parties and do not confer any benefits on any third-party unless it expressly states that it does. Neither party hereto will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

17.6. Notices

Any notices or other communications provided by Niantic Spatial under these Terms will be given: (i) via email and effective upon receipt; or (ii) on the Sites or the Scaniverse App and effective upon publication. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted to the email address you provided.

17.7. No Waiver

Niantic Spatial’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Niantic Spatial. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

17.8. Export Regulation

You agree to comply fully with all relevant export control and sanctions laws and regulations of the United States (the “Export Laws”) to ensure that neither the Business and Developer Resources, software, any User Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications.  You will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

17.9. U.S. Government End Users

The Business and Developer Resources, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Business and Developer Resources, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue its use of the Business and Developer Resources, software and Documentation.