By purchasing a subscription or using the LiDARMill website you accept and agree to be bound by these Terms and Conditions, and the policies provided on the Phoenix LiDAR website. You also acknowledge that you have read and understand all of the provisions of these Terms and Conditions, the privacy statement and other policies provided on the Phoenix LiDAR website.
1. DEFINITIONS:
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and any or all Agreements:
“Agreement” refers to the Terms and Conditions, which the Customer has accepted and agreed to be bound by.
“Authorized Users” refers to those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services’.
“Business day” refers to a day other than a Saturday, Sunday or public holiday in The United States.
“Customer” refers to a subscriber of the Services.
“Customer Data” refers to the data inputted by the Customer or Authorized Users for the purpose of using the Services or facilitating the Customer’s use of the Services, such as, but not limited to LiDAR post-processing.
“Documentation” refers to the document(s) made available to the Customer by LiDARMill from time to time which sets out a description of the Services and the user instructions for the Services.
“Effective Date” refers to the date of this Agreement.
“Normal Business Hours” refers to 8.00 am to 5.00 pm Pacific Time, each Business Day.
“User”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions.
“Party” refers to the “Customer” or “User” and LiDARMill, and together “Parties”.
“Renewal Period” refers to the period described in clause 4.1.
“Services” refers to the services provided via LiDARMill or Phoenix Lidar
“Subscription Fees” refers to the subscription fees payable by the Customer to Phoenix LiDAR for the User Subscription.
“Subscription Term” refers to the initial subscription term together with any subsequent renewal periods.
“User Subscriptions” refers to the user subscriptions purchased by the Customer
“Virus” refers any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.
2. USER SUBSCRIPTION
2.1 LiDARMill grants to the Customer a non-exclusive, non-transferable right to permit Authorized Users to use the Services during the Subscription Term.
2.2 LiDARMill may, at its discretion, provide the Customer with a free trial User Subscription to demonstrate the basic functions of the Services with a temporary Subscription Term. After filling in the form on the website, applicants for a free trial User Subscription will receive an account which enables Authorized Users to log in.
2.3 With this free trial User Subscription, Customers can upload their data or they can use demo data. This is offered as an introduction to the Services, therefore the amount of data which can be uploaded may be limited. The free trial User Subscription is only offered to give Customers an impression of the results of the Services. After the free trial period, all uploaded information and data will be removed.
2.4 LiDARMill decides who gets a free trial User Subscription at its sole discretion. If applicants are not approved, access to the free trial will be denied. Applicants should be organizations that have a serious interest to learn more about the Services offered.
2.5 With a free trial User Subscription, Customers cannot claim exclusive right upon the resulting data. Customers who are interested in the software can only use the results for internal purposes within business or institutions. Those who use results for external purposes with no obvious reason or for own commercial benefit are in breach with these terms and conditions and will be held liable for any damage resulting thereof.
2.6 User Subscriptions are offered with different level of Services, and with a Subscription Term that is typically monthly or annually. The Customer can upgrade from a free trial User Subscription to any User Subscription.
2.7 No refunds or prorations shall be given to Users for modification or cancellation of Subscription.
2.8 Neither Party shall be liable for any special, indirect or consequential loss suffered by the other Party. Neither Party shall be liable to the other Party for any loss of profits, loss of business, loss of data, loss of contracts, loss of savings, loss of use or any other economic loss.
2.9 If the Customer purchases a User Subscription with a different service level than the service level of its current User Subscription, which has not expired, then the new User Subscription will be effective the next month. If its current User Subscription is a yearly User Subscription then it will be continued with the current Subscription Term, but with the price and conditions of the new User Subscription. The remaining months of the current User Subscription can be refunded, but the responsibility to initiate such refunding belongs to the User. For the avoidance of doubt, this implies that for these relevant months the difference between the current and new User Subscription will be settled between the Customer and LiDARMill.
3. PAYMENT
3.1 The Customer shall pay the Subscription Fees to the LiDARMill for the User Subscriptions in accordance with this clause. LiDARMill will invoice the Customer immediately after the Customer has purchased a User Subscription.
3.2 LiDARMill will issue the invoices to the Customers email address provided on the Customer subscription form or from Phoenix LiDAR account data. Depending on local jurisdiction, additional taxes, levies, or duties may be added. Monthly and yearly User Subscriptions are non-refundable.
3.3 If LiDARMill has not received payment by the due date, LiDARMill may, without liability to the Customer, (a) disable the Customer’s password, account and access to all or part of the Services and the LiDARMill shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest may accrue on a daily basis on such due amounts at an annual rate equal to the statutory interest, commencing on the due date and continuing until fully paid, whether before or after judgment.
3.4 LiDARMill shall be entitled to increase the Subscription Fees, at the start of each Renewal Period with a courtesy notice to the Customer.
4. TERMINATION
4.1 This Agreement shall, unless otherwise terminated, commence on the Effective Date and shall continue for the initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 1 month for a monthly User Subscription and one year for a yearly User Subscription (“Renewal period”), unless: (a) either party notifies the other party of termination, in writing, at least before the end of the initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable initial Subscription Term or Renewal Period; or (b) otherwise terminated in accordance with the provisions of this agreement;
4.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if: (a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default after being notified in writing to make such payment; (b) the other party commits a material breach of any other term of this agreement which breach is irremediable or if such breach is remediable fails to remedy that breach within 2 weeks after being notified in writing to do so; (c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts. On termination of this Agreement: (a) the right to use granted under this Agreement shall terminate; (b) the Customer will make no further use of the Services; (c) LiDARMill may destroy or otherwise dispose of any of the Customer Data in its possession without liability. LiDARMill shall, at its sole discretion, use reasonable commercial endeavours to deliver the Customer Data to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by LiDARMill in returning or disposing of the Customer Data; and (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
5. LiDARMill’S OBLIGATIONS
5.1 LiDARMill shall, during the Subscription Term, provide the Services and make available the Services on an “as is” basis, 24 hours a day, seven days a week, except for: (a) planned maintenance, (b) unscheduled maintenance it deems urgent
5.2 LiDARMill warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
5.3 LiDARMill: (a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6. CUSTOMER’S OBLIGATIONS
6.1 In relation to the Authorized Users, the Customer undertakes that: (a) the maximum number of Authorized Users that it authorized to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time; (b) it will not allow or suffer any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation; (c) each Authorized User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorized User shall keep his password confidential.
6.2 The Customer shall (a) ensure that its network and systems comply with the relevant specifications provided by LiDARMill from time to time; and (b) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the LiDARMill’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet. (c) all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify LiDARMill.
6.3 The Customer shall not: (a) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or (d) use the Services and/or Documentation to provide services to third parties; or (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, or (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this agreement.
7. CUSTOMER DATA
7.1 Other than trial subscriptions, the Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for LiDARMill to use reasonable commercial endeavors to restore the lost or damaged Customer Data. LiDARMill shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties subcontracted by LiDARMill to perform services related to Customer Data maintenance and back-up).
7.3 Customer Data provided by the Customer are regarded as confidential and therefore will not be divulged to any third party, except if it is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8. PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that LiDARMill owns all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
8.2 LiDARMill confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
8.3 LiDARMill claims no intellectual property rights over datasets the Customer provides to LiDARMill.
9. THIRD PARTY PROVIDERS
9.1 The Customer acknowledges that, should third-party services or communication become useful or necessary with respect to LiDARMill services, LiDARMill recommends that the Customer refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party services. Responsibility for interactions with third-party services remains with the Customer.
10. INDEMNITY
10.1 The Customer shall defend, indemnify and hold harmless LiDARMill against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that: (a) the Customer is given prompt notice of any such claim; (b) LiDARMill provides reasonable cooperation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and (c) the Customer is given sole authority to defend or settle the claim.
11. LIMITATION OF LIABILITY
11.1 To the fullest extent permissible at law, LiDARMill is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of use, reference to, or reliance on any information contained within the Services and the LiDARMill website. While the information contained within the Services and the LiDARMill website is continuously updated, no guarantee is given that the information provided in this web site is correct, complete, and up-to-date. LiDARMill is not responsible for, and will not be liable for, any viruses transmitted from the Services or the LiDARMill website. Users and Customers use the LiDARMill or Phoenix LiDAR website and Services entirely at their own risk.
12. FORCE MAJEURE
12.1 LiDARMill shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lockouts or other industrial disputes (whether involving the workforce of LiDARMill or any other party), failure of a utility service or transport or telecommunications network, act of God, terrorism, act of civil or military authority, uprising, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood, storm or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.
13. ENTIRE AGREEMENT
13.1 This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
14. ASSIGNMENT
14.1 LiDARMill may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15. GOVERNING LAW
15.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of The United States of America, or the State of California in their appropriate jurisdictions.
16. ABOUT THESE TERMS
16.1 In the event of a breach of these terms by the Customer, lack of immediate action from Phoenix LiDAR or LiDARMill does not constitute forfeiture of allegedly violated rights.
16.2 If any part of these Terms is determined to unenforceable, the remainder of the Terms shall remain in effect.
16.3 The laws of California, USA, excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Los Angeles County, California, USA, and both parties consent to personal jurisdiction in those courts.
16.4 Modifications to these Terms may be made at the discretion of Phoenix LiDAR and will be posted to this page.