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NCTech Office

VR.World Terms and Conditions

September 2023

END USER LICENSE AGREEMENT

This End User License Agreement (“EULA”) is entered into by NCTech, Inc., a Delaware corporation (“NCTech”) and you (“Licensee,” and together with NCTech, the “Parties”). THE TERMS AND CONDITIONS OF THIS EULA SHALL APPLY TO THE SUPPLY OF PRODUCTS BY NCTECH AND SHALL BE DEEMED TO BE ACCEPTED BY THE LICENSEE UPON THE EARLIEST TO OCCUR OF PLACING OF AN ORDER OR DOWNLOADING, ACCESSING, OR USING PRODUCT. THE AGREEMENT (AS DEFINED BELOW) SHALL APPLY TO THE EXCLUSION OF ANY OTHER TERMS WHETHER CONTAINED IN ANY LICENSEE PURCHASE ORDER, ACCEPTANCE OF QUOTATION OR OTHERWISE, UNLESS EXPRESSLY AGREED IN WRITING BY NCTECH. ANY ADDITIONAL OR DIFFERENT TERMS OR  CONDITIONS SET FORTH IN ANY PRIOR OR SUBSEQUENT COMMUNICATION OR ACKNOWLEDGEMENT BY LICENSEE OR SIMILAR COMMUNICATION ARE OBJECTED TO AND WILL NOT BE BINDING UPON NCTECH UNLESS EXPRESSLY ASSENTED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF NCTECH. BY ACCESSING THE PRODUCTS OR USING NCTECH’S SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THE AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE or THE PRODUCTS.

  1. DEFINITIONS.

Affiliate” means, with respect to a person, any other person that controls, is controlled by or under common control with such Person.  For purposes of the foregoing “control” shall mean the ability whether through the ownership of equity or contractual arrangement to direct the management and decision making of the applicable person. 

Agreement” means, collectively, this EULA and any Customer Agreement.

Commercial Purpose” means redistribution, retransmission, or publication for the benefit of a third party, regardless of whether it is done in exchange for a fee or other consideration, which may include, without limitation (a) advertising; (b) use in marketing and promotional materials and services on behalf of a customer, client, employer, employee, or for Licensee’s benefit; (c) use in any materials or services for sale or for which fees or charges are paid or received; and (d) use in any books, news publication, or journal.

“Confidential Information” means all non-public information disclosed to Licensee by NCTech, including, without limitation, the Product and the terms of the Agreement.

Customer Agreement” means a quote or purchase order from NCTech. 

Derivatives” means works that are created by analyzing the Product and extracting features and attributes from the Product, specifically excluding any portion of the images or pixels themselves.

Internal Use” means Licensee’s internal business purposes and not for any Commercial Purpose.

Modified Product” means any Product that has been modified by Licenseee in accordance with Section 2.1(a) or (b).

NCTechAPI” means the application programming interface that NCTech currently provides to its customers that enables a user to access the NCTech Data Platform programmatically.

NCTechDataPlatform” means NCTech’s hybrid cloud-based service providing imagery, Point Clouds and derivative data products.

NCTechDataLibrary” means the off-the-shelf collection of digital imagery, Point Clouds, metadata, and geospatial information generally made available to NCTech’s customers (or any combination thereof).

Product” means the digital imagery, metadata, geospatial information, derivatives, and analytics, as more specifically set forth in any Customer Agreement, that is made available to Licensee from the NCTech Image Library during the Term.

“Point Cloud” means a collection of 3D data points in a specific coordinate system, representing the geometry and spatial information of an object or environment. The Point Cloud data is obtained through 3D scanning or similar methods, where distances to points on the object’s surface are measured using a LiDAR sensor.

Software” means all code provided by NCTech used to access the Product, including but not limited to the NCTech API and the NCTech VR.World.

Term” means the term specified in the Customer Agreement. 

VR.World” means NCTech’s browser-based viewing application that allows users to interact with the Product.

  1. LICENSE TERMS.
  1. License Grant. NCTech grants to Licensee during the Term a non-exclusive, non- transferable license to use the Product in the manner described in the applicable Customer Agreement, but in any case no broader than the following: to (a) use, reproduce, and modify the Product; (b) resample the Product to a smaller size and/or modify the Product to overlay graphics, text, and/or other content; and (c) create Derivatives, provided that in all cases of (a)-(c) such use is solely for Licensee’s Internal Use as described in any Customer Agreement, and such use is in compliance with the Agreement (the “License”). This License is limited to Licensee and may not be used by any Affiliates.
  2. Permitted Sublicensees. Licensee may grant its contractors (e.g., third-party developers that provide services to Licensee) (each, a “Permitted Sublicensee”) a sublicense to exercise the rights Licensee has under the License solely for the benefit of Licensee. Licensee must enter into a binding written agreement with each Permitted Sublicensee (each, a “Sublicense Agreement”) that contains terms that (a) are no less restrictive and protective of NCTech than this EULA; (b) establish limits on the Permitted Sublicensee’s usage of the Product consistent with the terms of the Agreement; and (c) state that NCTech is an express third-party beneficiary of the agreement and entitled to enforce the terms and conditions of the Sublicense Agreement. The Sublicense Agreement may not allow further sublicenses to any other parties.
  3. License Restrictions.  Licensee shall not, and shall not permit its personnel, Permitted Sublicensees, or any third party to do any of the following, except and solely to the extent expressly permitted by Section 2.1 (License Grant): (i) copy, reproduce, modify, market, grant access to, display, distribute, sell, rent, lease, sublicense, assign, or commercially exploit the Product; or (ii) remove, bypass, or circumvent any electronic or other forms of protection measure included on or with the Product.
  4. Right to Modify the Product. NCTech may from time to time, in its sole discretion, discontinue developing, producing, licensing, or distributing the Product and may modify or replace the Product.
  5. Excessive Use. NCTech may monitor for excessive consumption of network resources and may take technical or other remedies deemed necessary to prevent or eliminate any excessive consumption. If Licensee’s consumption of the Product is deemed excessive by NCTech, based on the average use of the Product by other customers, NCTech may terminate Licensee’s License or adjust the Fees.
  1. OWNERSHIP AND ATTRIBUTION.
  1. Ownership. NCTech owns all right, title, and interest in the Product, all materials used by NCTech to provide the Product, all copies thereof and customizations and modifications thereto, and all NCTech trademarks and trade names (collectively, the “NCTech Materials”). Except for the License, nothing herein transfers or conveys to Licensee or any Permitted Sublicensee any right, title, or interest in the NCTech Materials. Licensee shall not take any action with respect to NCTech Materials that is inconsistent with the foregoing.
  2. Attribution Requirements. Licensee shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary-rights notice placed by NCTech on or in the Product. Licensee shall also ensure that all Product, Modified Product, and Derivatives display the following copyright notice: NCTech Inc. © [YEAR].
  1. LICENSEE RESPONSIBILITIES.
  1. Access Security. Licensee must keep its users’ login credentials, including, without limitation, usernames and passwords, secure and confidential and must use commercially reasonable efforts to prevent unauthorized access to or use of its account. Licensee must promptly notify NCTech of any unauthorized access or use of the Product.
  2. Sublicense Agreements. Licensee shall enforce each Sublicense Agreement with at least the same degree of diligence that Licensee uses to enforce similar agreements for its own products and services, but in no event less than reasonable efforts. Licensee shall immediately notify NCTech if Licensee becomes aware of any breach of any Sublicense Agreement. Licensee shall immediately terminate a Permitted Sublicensee’s access to the Product following termination of a Sublicense Agreement.
  3. Record-Keeping. During the Term and for three years following the Term, Licensee shall maintain complete and accurate records with respect to Licensee’s access to and use of the Product. NCTech has the right, during normal business hours and upon at least five-business-day notice, to have a reputable independent accounting firm selected by NCTech, which is subject to reasonable confidentiality obligations, audit Licensee’s records relating to Licensee’s use of the Product to verify that Licensee has complied with the terms and conditions of the Agreement. NCTech shall fund the audit, but if the audit reveals that Licensee failed to comply with the Agreement then Licensee shall reimburse NCTech for the reasonable costs of such audit. Licensee shall promptly correct any compliance deficiencies identified by the audit and pay NCTech any amounts shown by any such audit to be owing, plus 1.5% monthly interest.
  4. Compliance with Laws. Licensee shall comply with all applicable laws and regulations in performing its obligations under the Agreement, including all applicable employment, tax, data- privacy, export control, and environmental laws and regulations. Licensee shall not export, re-export, sell, resell or transfer any third-party data or any export-controlled commodity, technical data or software (a) in violation of any law, regulation, order, policy or other limitation imposed by the United States (including the United States Export Administration regulations) or any other government authority with jurisdiction; (b) to any country in violation of any applicable embargo; or (c) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or equivalent. Without limiting the foregoing, Licensee shall comply with the United States Foreign Corrupt Practices Act and any anti-bribery or similar law or regulation in any jurisdiction where business is conducted or services performed in connection with the Agreement.
  5. No Reverse-Engineering. Licensee shall not reverse engineer, decompile, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how, or other information from the executable code portions of the Software or the NCTech Data Platform.
  1. CONFIDENTIALITY. Licensee shall not disclose any Confidential Information to any third party without NCTech’s prior written consent and shall limit access to Confidential Information to those of Licensee’s personnel and Permitted Sublicensees who require access to Confidential Information for purposes consistent with the terms of this EULA, and in the case of Permitted Sublicensees, who have signed Sublicense Agreements with Licensee containing obligations no less stringent than those set forth in this EULA. Licensee shall use the same degree of care to protect the Confidential Information that Licensee uses to protect the confidentiality of its own like confidential information, but in any event not less than reasonable care.
  1. WARRANTY DISCLAIMER
  1. No Warranties. ALL PRODUCT AND ANY SOFTWARE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND NCTECH DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO THE PRODUCT AND THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT, OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. NCTECH DOES NOT WARRANT THAT (a) THE PRODUCT OR THE SOFTWARE WILL MEET THE BUSINESS REQUIREMENTS OF LICENSEE; (b) THE PRODUCT OR THE SOFTWARE WILL BE ACCESSIBLE, AVAILABLE, ACCURATE, CURRENT, OR COMPLETE, OR THAT THE OPERATION OF THE PRODUCT OR THE SOFTWARE WILL BE COMPLETELY SECURE, ERROR-FREE, OR UNINTERRUPTED; OR (c) ALL ERRORS WILL BE CORRECTED. NCTECH SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE PRODUCT OR SOFTWARE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT.  THE SUPPLIERS OF NCTECH MAKE NO DIRECT WARRANTY OF ANY KIND TO LICENSEE UNDER THE AGREEMENT
  2. Potential Adverse Impact to Use of the Product. Access to the Product through the Software may be impacted by the following:
  3. any services, hardware, or software provided by Licensee or by a third party, including issues resulting from inadequate bandwidth or related to Licensee’s or third-party software or services, such as cloud platform services;
  4. Licensee’s use of the Product after NCTech advised Licensee to modify Licensee’s use of the Product, if Licensee did not modify its use as advised;
  5. Licensee’s unauthorized action or lack of action when required, or unauthorized action or lack of action when required by Licensee’s employees, agents, contractors, or vendors, or anyone gaining access to the NCTech Data Platform by means of Licensee’s passwords or equipment, or otherwise resulting from Licensee’s failure to follow appropriate security practices;
  6. Licensee’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or Licensee engaging in excessive use or attempting to use the Product in a manner inconsistent with the features and functionality of the Product (for example, attempts to perform operations that are not supported) or inconsistent with NCTech’s published guidance;
  7. faulty input, instructions, or arguments (for example, requests to access files that do not exist); or
  8. Licensee’s attempts to perform operations that resulted in NCTech’s throttling of suspected abusive behavior.
  1. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless NCTech, its affiliates, employees, officers, directors, and shareholders from any third-party claim that arises from (a “NCTech Claim”) (a) an allegation that any Derivative or Modified Product, or any products or services provided by Licensee or a third party that are bundled, sold, or used with the Product under the Agreement, infringe any intellectual property rights of a third party; (b) the use of the Product or a Derivative by Licensee or a Permitted Sublicensee or any user allowed to access the Product or Derivative, directly or indirectly by Licensee or a Permitted Sublicensee, except to the extent the claim is based on the Product on a stand-alone basis; or (c) any failure by Licensee or Permitted Sublicensees to comply with all applicable laws and regulations. Licensee shall pay reasonable attorneys’ fees incurred by NCTech in connection with any NCTech Claim. Licensee’s indemnification obligations set forth in this section are subject to the conditions that NCTech must (x) notify Licensee promptly in writing of such claim, provided that NCTech’s failure to promptly notify Licensee as provided herein shall not relieve Licensee of its obligations except to the extent that Licensee is actually prejudiced by such failure to give prompt notice; and (y) fully cooperate with Licensee, at Licensee’s expense, in the defense or settlement of such claim, provided that any settlement will be subject to NCTech’s written approval.
  1. LIMITATION OF LIABILITY. IN NO EVENT WILL NCTECH OR ITS LICENSORS BE LIABLE UNDER CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL LOSSES OR DAMAGES OR FOR ANY LOSSES OR DAMAGES RESULTING FROM LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE,  COST OF SUBSTITUTE GOODS, OR DAMAGES FOR PURE ECONOMIC LOSS, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF NCTECH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  In no event will the total liability of NCTech and its licensors arising out of or in connection with the Product exceed $1,000. The foregoing limitations apply to all causes of action in the aggregate, to the extent permitted by applicable law.
  1. TERMINATION. This EULA terminates upon expiration of the Term. In addition, without prejudice to any other rights or remedies which NCTech may have, NCTech may terminate the Agreement without liability to the Licensee immediately on notice to the Licensee if Licensee (a) fails to pay any amount due under the Agreement on the due date for payment (and remains in default not less than seven days after being notified in writing to make such payment), (b) commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; (c) commits a material breach of any of the terms of the Agreement that is not susceptible to cure or remediation, (d) is subject to an event of insolvency, an assignment for the benefit of its creditors, or the initiation of bankruptcy proceedings; (e) suspends or ceases, or threatens to suspend or cease, all or a substantial part of its business or (f) if NCTech reasonably suspects that Licensee is using the Product in violation of applicable laws or regulations, NCTech may immediately suspend Licensee’s access to the Product and terminate the Agreement. Licensee may terminate the Agreement at any time. 

Upon termination of the Agreement, Licensee and Permitted Sublicensees must (a) stop all use of the Product, Modified Product, and Derivatives; (b) permanently delete the Product, Modified Product, and Derivatives from all devices and systems and destroy any copies on disk; (c) pay any amounts then due and payable to NCTech and (d) deliver to NCTech an officer’s certificate certifying compliance with this section at 200 S. 10th St Suite 1600, Richmond, VA 23219, Attention: Legal Department. The termination of the Agreement does not relieve either Party of any obligations that have accrued on or before the effective date of termination.

All sections of the Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers, indemnification and limitations of liability. 

  1. INJUNCTIVE RELIEF; LIQUIDATED DAMAGES.
  1. Injunctive Relief. Any material breach of the Agreement by Licensee may cause irreparable injury and monetary damages may not be a sufficient remedy. NCTech is entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach, and Licensee waives the defense that there is an adequate remedy at law. The above will not be construed to limit the remedies available to NCTech.
  2. Liquidated Damages. NCTech may recover, at NCTech’s election, either (a) damages that arise from Licensee’s breach of the Agreement; or (b) in the event of a breach of the License only, liquidated damages as contemplated by the statutory damages provision of the Copyright Act, 17 U.S. Code §504(c). For purposes of determining breach of the License and the calculation of liquidated damages, an image is infringed when it is improperly downloaded, improperly distributed, or used in the preparation of derivative works after being improperly downloaded. This liquidated-damages provision applies whether or not NCTech has filed for a copyright registration in connection with such image. Licensee shall reimburse NCTech for its reasonable attorneys’ fees and expenses and for investigation fees incurred by NCTech in enforcing its rights under the Agreement. The Parties acknowledge that this calculation of damages is reasonable as proportionate to the potential losses arising from the unauthorized use of the Product in light of the proprietary intellectual property that NCTech has developed to maintain a competitive business advantage and the complexity of determining the monetary harm caused by misappropriation of that intellectual property through a License breach.
  1. COLLECTION AND USE OF YOUR INFORMATION.  You acknowledge that when you download, install, register an account with, or use the Software and Product, NCTech may use automatic means to collect information about your use of the Software and Product. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software and Product or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others.   All information we collect through or in connection with this Software is subject to our Privacy Policy.    By using, and providing information to or through this Software, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  1. GENERAL TERMS
  1. Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to access to and use of the Product and supersedes all previous and contemporaneous agreements, understandings, and arrangements, whether oral or written; provided, however, that if there is any conflict between the terms of this EULA and the Customer Agreement, the Customer Agreement controls. 
  2. Waiver. The waiver of a breach of any provision of the Agreement shall not be interpreted as a waiver of any other or subsequent breach. 
  3. Relationship of Parties. The Agreement shall not be construed to establish any form of partnership, agency, or other joint venture between NCTech and Licensee. 
  4. Forece Majeure. If the performance of any obligation under the Agreement is prevented, restricted, or interfered with by reason of tornado, hurricane, storm, fire, flood, earthquake, explosion, pandemic, or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment, or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand, or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected will be excused from such performance to the extent of such prevention, restriction, or interference; provided, however, that the Party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed. 
  5. Damages. Any material breach of the Agreement by Licensee may cause irreparable injury and monetary damages may not be a sufficient remedy. NCTech is entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach, and Licensee waives the defense that there is an adequate remedy at law. In the event NCTech must seek the services of an attorney to enforce the provisions of the Agreement, Licensee shall pay all reasonable attorneys’ fees, costs, and damages incurred by NCTech, whether such attorneys’ fees, costs, and damages are incurred in or out of court. Any disputes arising out of the Agreement shall be governed by the laws of the State of Delaware, without giving effect to its conflict of law rules. 
  6. Jurisdiction. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in Delaware. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. 
  7. EACH PARTY HEREBY IRREVOCABLY VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BETWEEN THEM BASED DIRECTLY OR INDIRECTLY ON THE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY RELATED TO THE AGREEMENT.
  8. Assignment. Licensee may not assign (by operation of law or otherwise), rent, sell, sublicense, sub-contract or otherwise transfer the Agreement or any portion thereof to any other person, firm, or entity without NCTech’s written consent. Any attempted assignment or transfer in violation of this section will be null and void. NCTech may freely assign or otherwise transfer this EULA and any Customer Agreement. The Agreement will be binding upon Licensee and NCTech and inure to the benefit of Licensee and NCTech and their respective successors and permitted assigns. 
  9. Headings. The headings or captions used in the Agreement are for reference purposes only and are not intended to be used or relied upon in interpreting or enforcing the Agreement. To the extent that any portion of the Agreement is deemed to be unenforceable, such portion shall be severed and deleted or limited to give effect to the intent of the Parties to the extent possible, and the remainder of the Agreement shall remain binding upon the Parties.