These Terms and Conditions shall apply to services provided by Reality Capture Experts (RCE) an entity specifically identified in the Proposal and together with the proposal to which these Terms and Conditions are attached (hereinafter, the “Proposal”), shall constitute the “Agreement.” For purposes of this Agreement, the Reality Capture Experts ENTITY identified in the Proposal shall be referred to as “RCE” and the entity signing the Proposal shall be referred to as “CLIENT.” Project Deliverables are specific to the project we are contracting for and is identified in the Scope of Work (SOW) attached to an RCE Proposal.
A. SCOPE OF SERVICES AND ADDITIONAL SERVICES
RCE will provide those services specifically identified in the Proposal (hereinafter, the “Services”). All Services, regardless of the commencement date, will be covered by these Terms and Conditions. All services not specifically identified in the Proposal are excluded; provided, however, that if requested by the CLIENT and agreed to by RCE in writing, RCE will perform such additional services (“Additional Services”) subject to these Terms and Conditions. Unless otherwise agreed in writing, the CLIENT shall pay RCE for the performance of any Additional Services on a time-and-materials basis based upon RCE’s then-current hourly rates. For avoidance of doubt, email will constitute written notice. RCE email: [email protected].
B. PROFESSIONAL LICENSES
RCE does not manage construction, or provide architectural, land surveying, engineering or other services for which a professional license is required and makes no warranty or guarantee of any kind for any of our drawings or deliverables. Billings from any such professionals shall be billed directly to the client. RCE does not accept any responsibility or liability for the acts or omissions of such providers. Any warranties or representations of such professionals shall run directly to the client from such professionals. Client agrees that it will not rely on RCE for the accuracy of any representation or warranty of those providing licensed services.
C. STANDARD OF CARE
RCE’s services will be performed in accordance with this Agreement and in a manner consistent with the generally accepted standard of care and skill ordinarily exercised by professionals performing similar services under similar circumstances at the place and time the services are being performed (the “Standard of Care”). RCE will exercise commercially reasonable professional care in its efforts to comply with codes, regulations, laws, rules, ordinances, and such other requirements in effect as of the date of execution of this Agreement. The CLIENT agrees that no other representation, warranty or guarantee, expressed or implied, is provided by RCE or is presumed given by RCE under this Agreement or in any report, opinion, or any other document prepared by RCE, or otherwise except as expressly provided herein.
D. CLIENT RESPONSIBILITIES
In addition to other responsibilities described herein, the CLIENT shall: (i) provide all information and criteria as to the CLIENT’s requirements, objectives, and expectations for the project, including all numerical criteria that are to be met and all standards of development, design, or construction and all other information reasonably necessary for completion of the Services, prior to the commencement of the Services; (ii) provide prompt, complete disclosure of known or potential hazardous conditions or health and safety risks; (iii) provide to RCE all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary in RCE’s opinion for completion of the Services; (iv) review all documents or oral reports presented by RCE and render in writing decisions pertaining thereto within a reasonable time so as not to delay the Services, which written decisions may be delivered by email; (v) furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of RCE’s Services; (vi) give prompt written notice to whenever the CLIENT becomes aware of any development that affects the scope and timing of RCE’s Services; and (vii) bear all costs of the CLIENT. RCE will have the right to reasonable reliance upon the accuracy and completeness of all information furnished by the CLIENT.
E. INVOICING AND SERVICE CHARGES
RCE will submit bi-weekly invoices to the CLIENT and a final bill upon completion of Services as outlined in the specific Service Proposal. The CLIENT shall notify RCE within two weeks of receipt of invoice of any dispute with the invoice. The CLIENT and RCE will endeavor to promptly resolve any disputed items.
Payment on undisputed invoice amounts is due upon receipt of invoice by the CLIENT and is past-due thirty (30) days from the date of the invoice. Any unpaid balances shall accrue late charges of 12% per annum, or the highest rate allowed by law, whichever is lower, and the CLIENT agrees to pay all reasonable and actual out-of-pocket fees and expenses incurred by RCE in any collection action.
All agreed upon fees and expenses are due at the time the assets are delivered. RCE reserves the right to
cancel, postpone, or refuse to schedule subsequent shoots until the account is made current.
Unless otherwise stated in writing, RCE requires a 50% down payment at the time of scheduling. Deposit is refundable, less 50% or $450, whichever is greater, if cancelled or postponed within 48 hours of scheduled services. No refunds will be processed if canceled or postponed without 48 hours notice. This fee is to compensate our Technician and staff for lost wages. In the case where no deposit is made or required, the full shoot amount will be assessed if:
(1) the Technician arrives at the property to find the shoot is canceled (including denied access to the
property and the property not being ready) and (2) if canceled or postponed on the day of the scheduled
shoot.
If 48 hours notice is not given, there will be a 50% fee assessed per unit/property, for each Technician
scheduled. This fee is to compensate our Technician and staff for lost wages.
F. RIGHT OF ENTRY
The CLIENT shall provide for a safe right of entry in order for RCE to perform its Services,
including execution of any site access or license agreements required for completion of the Services. RCE will not be required to execute any site access or license agreement(s). While RCE will take all reasonable precautions to minimize any damage to the property, the CLIENT acknowledges and agrees that in the normal course of work some damage may occur, the correction of which is not part of this Agreement unless specifically provided in the proposal or unless caused by the negligence or willful misconduct of RCE.
G. JOB SITE SAFETY AND CONTROL OF WORK
Unless expressly agreed to in writing by RCE under separate contract, RCE will have no responsibility for the safety program at the Project or the safety of any entity or person other than RCE and its employees. Neither the professional activities of RCE nor the presence of RCE’s employees and subcontractors at the Project site will be construed to confer upon RCE any responsibility for any activities on site performed by personnel other than RCE’s employees and subcontractors.
The CLIENT agrees that RCE will have no power, authority, right or obligation to supervise, direct, stop the work of or control the activities of any other contractors or subcontractors or construction manager, their agents, servants or employees. RCE will take reasonable precautions to safeguard its own employees and those for whom RCE is legally responsible.
H. EXISTING CONDITIONS AND SUBSURFACE RISKS
Special risks occur whenever engineering or related disciplines are applied to identify subsurface conditions. Even a comprehensive sampling and testing program implemented in accordance with a professional Standard of Care may fail to detect certain conditions. The environmental, geologic, geotechnical, geochemical, and hydro-geologic conditions that RCE interprets to exist between sampling points will differ from those that actually exist. The CLIENT recognizes that actual conditions will vary from those encountered at the locations where borings, sampling, surveys, observations or explorations are made by RCE or its subcontractors and that the data, interpretation, and recommendations of RCE are based solely on the information available to it. Furthermore, the CLIENT recognizes that passage of time, natural occurrences, and/or direct or indirect human intervention at or near the site may substantially alter discovered conditions. RCE shall not be responsible for interpretations by others of the information it develops or provides to the CLIENT.
RCE will take reasonable precautions to avoid damage or injury to subterranean structures or utilities in the performance of its services. The CLIENT agrees to defend, indemnify, and hold RCE harmless for any damage to subterranean structures or utilities and for any impact this damage may cause where the subterranean structures or utilities are not called to RCE’s attention or are not correctly shown on the plans furnished by CLIENT or third parties.
I. INDEMNIFICATION
Subject to the provisions of Section J of these General Terms and Conditions, to the fullest extent permitted by law, RCE agrees to indemnify and hold harmless the CLIENT and CLIENT’s parent companies, subsidiaries, affiliates, partners, officers, directors, shareholders, and employees for any and all damage obligations, liabilities, judgments, and losses for personal injury and/or property damage including reasonable attorney’s fees and other expenses and disbursements, asserted by any third parties to the extent determined by a court of competent jurisdiction to have been caused by (i) the negligent acts, errors or omissions or willful misconduct of RCE in the performance of its services under this Agreement, (ii)a breach of this Agreement by RCE. RCE will not be responsible for any loss, damage, or liability arising from any acts by the CLIENT or any of its agents, employees, staff, or other consultants, sub-consultants, contractors or subcontractors. In no event shall the indemnification obligation extend beyond the date when the institution of legal or equitable proceedings for professional negligence would be barred by an applicable statute of repose or statute of
limitations.
To the fullest extent permitted by law, except to the extent caused by the negligence or willful misconduct of RCE, the CLIENT agrees to indemnify, defend and hold harmless RCE and RCE’s parent companies, subsidiaries, affiliates, partners, officers, directors, shareholders, and employees for any and all, damage obligations, liabilities, judgments and losses, including reasonable attorneys’ fees and all other expenses and disbursements, to which RCE may be subject, arising from or relating to (i) any unknown site condition or subterranean structures of which RCE does not have actual knowledge; (ii) any errors, omissions or inconsistencies in any data documents, records or information provided by the CLIENT on which RCE reasonably relied; (iii) any breach of contract, tort, error, omission, wrong, fault, or failure to comply with law by the CLIENT or third party over whom RCE has no control; and the CLIENT’s unauthorized use or copyright violation of plans, reports, documents and related materials prepared by RCE.
In connection with any damages, loss, suit, claim or proceeding arising from or otherwise related to the execution of excavation, support of excavation, foundations, or underpinning activities, CLIENT agrees to use all reasonable efforts to seek defense and indemnification from the Contractor and Subcontractor responsible for the work, and, to the extent the CLIENT is entitled to be or is otherwise indemnified by contractors/subcontractors, CLIENT shall not seek indemnification from RCE. Payment by CLIENT in accordance with Section D of this Agreement is a condition precedent to RCE’s indemnification obligations.
Full performance by RCE of its obligations under this Agreement is a condition precedent to CLIENT’s indemnification obligations. In the event any part of this indemnification is determined to be void as a matter of law, then the clause shall automatically be reformed to be consistent with the law and apply the parties’ intent to the maximum extent
permissible by law.
J. LIMITATION OF LIABILITY
To the fullest extent permitted by law, the total liability, in the aggregate, of RCE and its officers, directors, partners, employees, agents, and sub-consultants, to CLIENT, and anyone claiming by, through, or under CLIENT, and to any third parties granted reliance by RCE per Section M, for any claims, losses, costs, or damages whatsoever arising out of, resulting from or in any way relating to this Project or Agreement, from any cause or causes, including but not limited to tort (including negligence and professional errors and omissions), strict liability, breach of contract, or breach of warranty, shall not exceed an aggregate amount equal to the total compensation received by RCE or $100,000, whichever is greater after application of any available insurance proceeds. The CLIENT may negotiate a higher limitation of liability for an additional fee, which is necessary to compensate for the greater risk assumed by RCE.To the extent damages are covered by property insurance, RCE and the CLIENT waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance. RCE and the CLIENT, as appropriate, shall require of the contractors, subcontractors, consultants, sub-consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein.
K. WAIVER OF CONSEQUENTIAL DAMAGES
RCE and the CLIENT waive all consequential or special damages, including, but not limited to, loss of use, profits, revenue, business opportunity, or production, for claims, disputes, or other matters arising out of or relating to the services provided by RCE regardless of whether such claim or dispute is based upon breach of contract, willful misconduct or negligent act or omission of either of them or their employees, agents, sub-consultants, or other legal theory. This mutual waiver shall survive termination or completion of this Agreement.
L. INSURANCE
RCE agrees to maintain general and professional liability insurance with limits of $1,000,000. Certificates of insurance will be issued to the CLIENT prior to commencement of Services.
M. FORCE MAJEURE
The parties will not be responsible or liable for any delays in performance, failure of performance or
additional costs incurred by the other party related to any force majeure event, including but not limited to fire, flood, explosion, the elements, or other catastrophe, unforeseen existing or subsurface conditions, acts of God, war, riot, civil disturbances, terrorist act, strike, lock-out, refusal of employees to work, labor disputes, inability to obtain materials or services, recognized health threats as determined by the World Health Organization, the Center for Disease Control, or local governments or health agencies (including but not limited to health threats of COVID-19, H1N1, or similar infectious diseases), or delays caused by the other party, its agents, contractors, subcontractors, consultants, sub-consultants or employees, or any governmental regulation or agency, or for any other cause beyond the parties’ reasonable control.
N. PROJECT DELIVERABLE
All reports, opinions, notes, drawings, specifications, data, calculations, and other documents prepared by RCE and all electronic media prepared by RCE are considered its project Deliverables to which RCE retains all rights. The CLIENT acknowledges that electronic media are susceptible to unauthorized modification, deterioration, and incompatibility; and therefore, the CLIENT cannot rely upon the electronic media version of RCE’s Deliverables. All Deliverables provided by RCE to the CLIENT as part of the Services are provided for the sole and exclusive use of the CLIENT with respect to the Project. Reliance upon or reuse of the Deliverables by third parties without RCE’s prior written authorization is strictly prohibited, which authorization shall not be unreasonably withheld, conditioned, or delayed. If the CLIENT distributes, reuses, or modifies RCE’s Deliverables without the prior written authorization of RCE, or uses RCE’s Deliverables to complete the project without RCE’s participation, the CLIENT agrees, to the fullest extent permitted by law, to release RCE, its officers, directors, employees and sub-consultants from all claims and causes of action arising from such distribution, modification or use, and shall indemnify and hold RCE harmless from all costs and expenses, including the cost of defense, related to claims and causes of action arising therefrom or related thereto.
RCE will not sign any documents that certify the existence of conditions whose existence RCE cannot
ascertain, or execute certificates or consents that would require knowledge, services or responsibilities
beyond the scope of this Agreement. In the event RCE is required to execute any certifications, it is
understood and agreed that: (i) the words “certify” or “certification” shall mean an expression of RCE’s
professional opinion based upon available information and consistent with the Standard of Care; and (ii) such certification does not constitute a warranty or guarantee by RCE.
O. CONFLICTS OF INTEREST
RCE provides services on behalf of many companies and individuals; thus, during the time RCE is providing services to CLIENT it may also provide services unrelated to the services RCE is providing to CLIENT, to other present or future clients of RCE with interests adverse to CLIENT’S interests. CLIENT agrees that RCE’s services to CLIENT will not disqualify RCE from providing services to other clients in matters that are unrelated to the services RCE is providing to CLIENT, and CLIENT hereby waives any conflict of interest with respect to those services.
RCE agrees not to use or disclose any proprietary or other confidential information of a nonpublic nature
concerning CLIENT, which is acquired by RCE as a result of its service to CLIENT, in connection with any
other matter, unless required to do so by law.
P. TERMINATION AND SUSPENSION
Except as otherwise provided in this Agreement, this Agreement may be terminated by either party upon
not less than seven (7) calendar days’ written notice should the other party fail substantially to perform in accordance with the terms and conditions of this Agreement through no fault of the party initiating the
termination. If the defaulting party fails to cure its default within the seven (7) calendar day notice period or fails to commence action to cure its default if the cure cannot reasonably be completed within the seven (7) days, the non-defaulting party may terminate the Agreement.
Failure of the CLIENT to make payments to RCE in accordance with this Agreement shall be considered
substantial non-performance and grounds for termination or suspension of services at RCE’s option after such seven (7) day notice period or anytime thereafter. In the event of suspension for non-payment, RCE shall have the right to: (i) withhold its project Deliverables; and (ii) demand advanced payment for future services. Furthermore, RCE will be compensated for all services performed and reasonable reimbursable expenses incurred prior to such termination and all reasonable termination expenses. In the event of a suspension of services or termination of the Agreement by RCE in accordance with this Section O, RCE will have no liability for any delay or damage of any kind actually or allegedly caused by such suspension of services or termination. CLIENT shall not withhold amounts from RCE’s compensation to impose a penalty or damages on RCE, or to offset sums requested by or paid to contractors for the cost of changes in their work unless RCE agrees or has been found liable for the amounts.
Q. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their respective successors and assigns.
Neither party may assign or transfer this Agreement without the prior written consent of the other party,
which consent shall not be unreasonably withheld, conditioned, or delayed. The parties agree that this
Agreement is not intended to give any benefits, rights, actions or remedies to any person or entity not a
party to this Agreement, as a third-party beneficiary or otherwise under any theory of law.
If RCE is requested to execute a consent to assignment of this Agreement to a lender or other entity
providing financing for the Project, RCE, in its sole but reasonable discretion, may agree to execute any such document provided it does not materially alter RCE’s risk exposure or obligations under this Agreement, and provided the assignee agrees to: (i) pay any amounts due and owing at the time of assignment; (ii) pay any amounts to become due subsequent to such assignment; and (iii) be bound by the terms and conditions of this Agreement.
R. DISPUTE RESOLUTION
RCE and the CLIENT agree that any disputes arising under this Agreement and the performance thereof
shall be subject to non-binding mediation as a prerequisite to further legal proceedings, which proceeding must be brought in a court of competent jurisdiction in the state in which the office of RCE that issued the Proposal is located. RCE and CLIENT waive any right to a trial by jury.
All actions by CLIENT against RCE, and by RCE against CLIENT whether for breach of contract, tort or
otherwise, shall be brought within the period specified by applicable law, but in no event more than five (5) years following substantial completion of RCE’s services. CLIENT and RCE unconditionally and irrevocably waive all claims and causes of action not commenced in accordance with this paragraph.
If the CLIENT asserts a claim against RCE relating to allegations of professional negligence in performance of RCE’s services under this Agreement, RCE will be entitled to reimbursement of any actual and reasonable out-of-pocket costs incurred by RCE in the defense of the professional negligence claim, including any expenses incurred as part of RCE’s professional liability insurance deductible, to the extent RCE is successful in its negligence defense.
S. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state in which the office of RCE that issued the Proposal is located.
T. ENTIRE AGREEMENT
Unless a separate agreement is executed by the parties, upon receipt of direction to proceed from CLIENT and commencement of the SERVICES by RCE, and regardless of whether CLIENT signs the Proposal, these General Terms and Conditions will govern RCE’s performance of the Services.
This Agreement (consisting of these General Terms and Conditions, Notes and Exclusions, the accompanying Proposal and RCE’s Fee Schedule, if applicable) constitutes the entire agreement between the parties, supersede any and all prior agreements or representations of the parties to this agreement and conflicting terms on documents created by the CLIENT, and may not be modified, amended, or varied except by a document in writing signed by the parties hereto
Notwithstanding anything to the contrary in this Agreement, the parties Agree that the Non-Disclosure and Confidentiality Agreement signed by the parties is not superseded by this Agreement and remains in effect.
Notes and Exclusions:
Exterior scans may be delayed due to inclement weather or high wind. If on site work is impeded beyond the control of an RCE technician, additional site time may need to be scheduled at client’s expense. Client will be notified prior to scheduling additional site work.
Laser scanning is non-destructive, non-obtrusive form of project documentation. Only visible information in the field will be collected. If an element cannot be seen by the human eye then the scanner will not collect the data. If you wish to collect specific information concealed or obstructed, then these elements must be exposed prior to scanning. Laser scanning technology is limited to line of sight visibility. Laser scanning cannot “see” inside walls or objects, through piping insulation or underground.
Additionally, any materials or items on the floor/ground or obstructing the view of key features should be
removed prior to scanning, at no cost to RCE. Examples:
- Items on the floor should be removed if floor flatness or floor detail is needed.
- Piping insulation should be removed by client prior to scanning if actual outside diameter of piping is important. Outside diameter of piping or insulation will be captured.
- Fireproofing on structural steel members should be removed (if possible) if exact location and detail is imperative.
- Vegetation including shrubs, trees, bushes, etc.
- Stationary objects such as parked vehicles (trucks, rail cars, fork lifts, man lifts, etc.), shelving rack systems, bins, furniture, etc.
RCE is not responsible for housekeeping. Any debris, materials, equipment, or other obstructions in the area at the time of scanning will likely be captured in the scan data and could potentially block out needed data. Scanning is typically conducted from the ground and/or solid floor surface free of movement/vibration. Some shadowing in the data will occur due to line of sight from ground level.
Ceiling data is limited to bottom of flange of exposed structure unless explicitly stated. Some additional data may be captured with shadowing based on line of sight.
The quote provided by RCE includes basic cloud cleaning such as the cropping of data and removal of reflections.
Excessive items (i.e. steam, people, equipment, etc.) that need to be cleaned out of point clouds for registration of data or at client’s request, may incur an additional fee of $75/hour above and beyond quoted pricing. If required, client will be notified prior to beginning point cloud cleaning.
Any rooms that are locked or unable to be accessed at the time of scanning will not be scanned or modeled.
All collected point cloud data will not be geo-referenced or tied to an existing project coordinate system. It will be tied to the project base point.
Material types will not be included or implied in model unless explicitly stated.
RCE does not manage construction, or provide architectural, land surveying, engineering or other services for which professional license is required and makes no warranty or guarantee of any kind for any of our drawings or deliverables. Billings from any such professionals shall be billed directly to the client. RCE does not accept any responsibility or liability for the acts or omissions of such providers. Any warranties or representations of such professionals shall run directly to the client from such professionals. Client agrees that it will not rely on RCE for the accuracy of any representation or warranty of those providing licensed services.
RCE deliverables (drawings and models) are not intended to be used without the direct supervision and
review by the client. RCE is a 3D laser scanning firm and does not specialize in your specific industry;
therefore, the client assumes sole responsibility that the provided deliverables meet the specific project
needs and requirements.
Any drawing or modeling provided by RCE is to be used, at the risk of the client, as a starting point for the project and needs to be reviewed carefully by the client using sound industry review practices to ensure accuracy based on the project’s needs.
RCE will be responsible for hosting data for one year after delivery, or unless otherwise negotiated.
Matterport files are archived offline. These files can be downloaded to a compatible device and imported to Matterport Capture App to add more data or to be re-hosted anytime. These open Matterport files are
added to the Project Archive upon receipt of invoice. Hosted Matterport models can be transferred to
another Matterport account at any time upon receipt of invoice. The use of hosted Matterport models are governed by the Matterport Terms of Use.
Cancelation Policy
Unless otherwise stated in writing, Reality Capture Experts LLC requires a 50% down payment at the time of scheduling. Deposit is refundable, less 50% or $450, whichever is greater, if canceled or postponed within 48 hours of scheduled services. No refunds will be processed if canceled or postponed without 48 hours notice. This fee is to compensate our technician and staff for lost wages. In the case where no deposit is made or required, the full shoot amount will be assessed if: (1) the technician arrives at the property to find the shoot is canceled (including denied access to the property or the property not being ready) and (2) if canceled or postponed on the day of the scheduled shoot. If 48 hours notice is not given, there will be a 50% fee assessed per unit/property, for each technician scheduled.
Travel: Dependent on scope of project and availability of technician at the time of scheduling. All service includes 50 miles round trip from assigned RCE office in requested market. $1.00 per mile thereafter.
An added fee of 1.5 % may be applied for jobs scheduled outside of normal business hours.
