CAPTUR3D Terms of Use

Last updated 8 May 2019

These terms of use (Terms of Use) are between Phoria and the Customer and covers the Customer’s use of and access to our CAPTUR3D software product (the Platform). These Terms of Use, together with our EULA and Privacy Policy, govern your access to and use of the Platform. By clicking “I agree”, signing your contract for the provision of the Platform or using the Platform, you agree to these Terms of Use as a Customer. If you do not understand these Terms of Use, or do not accept any part of these Terms of Use, do not register or use the Platform.

If you are using the Platform for an organisation, you represent that you have the authority to bind that organisation and agree to these Terms of Use on behalf of that organisation.

You may not use or access the Platform if you are our direct competitor, except without our prior written consent.

1. Definitions
  1. Administrator means the Customer-designated technical End User who administers the Platform to the End Users on the Customer’s behalf. Administrators are able to access, disclose, restrict or remove Data in or from End User accounts. Administrators may also have the ability to monitor, restrict or terminate access to End User accounts.
  2. Admin Account means the administrative account provided to the Customer by Phoria for use by the Administrator for the purpose of administering the Platform.
  3. Business Day means a day on which banks are open for general banking business in Melbourne, excluding Saturdays, Sundays and public holidays.
  4. Confidential Information means any information disclosed by or on behalf of one party to another party in connection with these Terms of Use which has been designated as confidential by the party disclosing the information, or information which by its nature should reasonably be considered to be confidential.
  5. Customer means the party identified as the customer in the Order Form. The terms “you”, “your” and “yours” when used in these Terms of Use are a reference to the Customer.
  6. Data means any content or information that is submitted or uploaded to the Platform by the Customer or End Users.
  7. End User means a user of the Customer’s account. End Users may include the Customer’s employees and consultants.
  8. End User Account means a user account established by the Customer through the Platform for an End User.
  9. EULA means the end user licence agreement between Phoria and an End User, available here.
  10. Fees means the amounts invoiced to the Customer by Phoria for the licence of the Platform, as described on the Order Form. Fees are charged as either a monthly subscription or as a “pay-as-you-go” option, selected by the Customer on the Order Form.
  11. Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
  12. Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trade mark, moral rights and other similar rights.
  13. Law includes:
    1. Australian Consumer Law;
    2. any statute, regulation, rule, by-law, ordinance, proclamation, judgment, treaty, decree, convention, rule or principle of common law or equity, rule of any applicable stock exchange, or requirement or approval (including any Government Agency);
    3. any regulation, rule, by-law, ordinance, proclamation or judgment made under that law; and
    4. that law as amended, consolidated, supplemented, re-enacted or replaced.
  14. Order Form means the ordering page for subscription to the Platform.
  15. Party means a party to these Terms of Use.
  16. Phoria means Phoria Pty Ltd ACN 169 885 796 and its related bodies corporate. The terms “we”, “us” and “our” when used in these Terms of Use are a reference to Phoria.
  17. Privacy Policy means the privacy policy of Phoria, available here
  18. Security Emergency means:
    1. use of the Platform that does or could disrupt the Platform, other customer’s use of the Platform or the infrastructure used to provide the Platform; or
    2. unauthorised third party access to the Platform.
  19. Subcontractor means an entity to whom Phoria subcontracts any of its obligations under these Terms of Use.
  20. Subprocessor means an entity who agrees to process Data on Phoria’s behalf, or on behalf of another Phoria subprocessor, in order to provide the Platform.
  21. Taxes means any sales, use, value-added, goods and services, consumption, excise, local stamp or other tax, duty or other charge of any kind or nature excluding tax that is based on Phoria’s net income associated with the Platform, including any related penalties or interest.
  22. Term means the term for the provision of Platform beginning on the date that Phoria makes the Platform available to the Customer and continuing until terminated in accordance with these Terms of Use.
  23. Your Account means the account you are using in your capacity as a Customer.
2. Our Platform
2.1 Provision

These Terms of Use govern access to and use of the Platform by the Customer. You and your End Users will be provided with access to and use of the Platform for the Term in accordance with these Terms of Use.

2.2 Security measures and data processing

We use industry standard technical and organisational security measures to transfer, store and process your Data. Further details about our security measures can be found in our Privacy Policy.

We will only process your Data in accordance with our Privacy Policy. By using our Platform, you are agreeing to the terms of our Privacy Policy.

2.3 Modifications

We may update the Platform from time to time. The Platform will update automatically once a new version or feature is available. If we change the Platform in a manner that materially reduces its functionality, we will notify you at the email address linked to Your Account.

2.4 Licence

We grant you a limited, non-exclusive, non-transferable, revocable licence to use the Platform for the duration of the Term.

You must not copy, modify, distribute, sell or lease any part of the Platform and you must not reverse engineer or decompile the Platform, attempt to do so, or assist anyone in doing so, unless permitted by law or you have our prior written permission.

3. Your obligations
3.1 Your administration of the Platform

You may specify End Users as Administrators via Your Account. You are responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts. We expressly exclude responsibility for the internal management or administration connected with your use of the Platform, Your Account or an Admin Account.

3.2 Unauthorised use or access

You must prevent unauthorised use of the Platform by your End Users and terminate any unauthorised use of or access to the Platform. End User Accounts may only be provisioned, registered and used by a single End User. The Platform is not intended for End Users under the age of 16. You must not allow any person under the age of 16 to use the Platform. You will notify us promptly of any unauthorised use of or access to the Platform.

3.3 Restrictions

You will not:

  1. undermine the security or integrity of our computing systems or networks or, where the Platform is hosted by a third party, that third party’s computing systems or networks;
  2. use or access the Platform for the purposes of monitoring the Platform’s availability, performance or functionality, or for any other benchmarking or competitive purposes;
  3. use, or misuse, the Platform in any way which may impair the functionality of the Platform, or impair the ability of any other user to use the Platform;
  4. use the Platform for activities where use or failure of the Platform could lead to physical damage, death or personal injury;
  5. transmit, or input into the Platform, any files or Data that may damage any other person’s computing devices or software, or any content or Data that may be offensive;
  6. use any unauthorised means to modify or gain access to the Platform;
  7. interfere with any licence key mechanism in the Platform or otherwise circumvent mechanisms in the Platform intended to limit use;
  8. sell, resell, redistribute or lease the Platform;
  9. reverse engineer, disassemble, decompile or translate the Platform, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public application programming interfaces to the Platform, or attempt or assist anyone else to do so, unless this restriction is prohibited by Law; or
  10. remove or obscure any proprietary or other notices contained in the Platform.
3.4 Compliance

You and your End Users must use the Platform in compliance with the EULA. You must ensure that all End Users comply with the EULA and these Terms of Use to the extent that such terms relate to the ownership or use of the Platform, the Intellectual Property Rights and Confidential Information. You will comply with all Laws applicable to your use of the Platform, if any. You will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in these Terms of Use and to allow us to provide the Platform.

4. Payment
4.1 Fees

You must pay all applicable Fees for the Platform. You authorise us to charge for all applicable Fees using your selected payment method. Fees are non-refundable except as required by Law or as otherwise specifically permitted in these Terms of Use. You must provide us with current, complete and accurate payment method information.

4.2 Payment

You are provided with two payment options for the Fees. If you select the monthly subscription option, the Fees are payable monthly in advance. If you select the pay-as-you-go option, the Fees are payable at the end of each month that you have incurred Fees. We may suspend or terminate your access to the Platform if Fees are overdue.

We will continue to charge you the Fees until your subscription to the Platform is terminated in accordance with these Terms of Use.

We may revise the amount of Fees payable for use of the Platform by providing you with at least 30 days’ notice prior to the next charge.

4.3 Taxes

Fees are exclusive of taxes. We will charge Taxes when required to do so. We will issue you with a tax invoice upon request or if otherwise required to do so.

5. Confidentiality
5.1 End Users

If an End User:

  1. violates these Terms of Use;
  2. violates the EULA; or
  3. uses the Platform in a manner that we reasonably believe will cause us liability,

then we may request that you suspend or terminate the applicable End User account. If you fail to suspend or terminate the End User account promptly, then we may do so.

5.2 Security emergencies

Subject to these Terms of Use, if there is a Security Emergency we may suspend use of the Platform automatically and without notice. We will make commercially reasonable efforts to reduce the effects of the Security Emergency.

6. Intellectual Property Rights
6.1 Reservation of rights

Except where expressly provided, these Terms of Use do not grant:

  1. us any Intellectual Property Rights in your Data; or
  2. you any Intellectual Property Rights in the Platform or our trade marks and brand features.
6.2 Permission

When you use the Platform, you grant us all Intellectual Property Rights in the Data that are reasonably necessary for us to provide, operate, promote and improve the Platform. This permission also extends to Subprocessors and Subcontractors. This licence continues even if you stop using the Platform unless you delete you Data.

6.3 Suggestions

We may use, modify and incorporate into our Platform any feedback, comments or suggestions on the Platform that you or your End Users may send to us, without any obligation to you.

7. Term

These Terms of Use will remain in effect for the duration of the Term.

8. Termination
8.1 Generally

You are free to stop using the Platform at any time. Your Account will remain in effect until the next billing period.

We reserve the right to suspend or terminate your access to the Platform by written notice to you if:

  1. you are in material breach of these Terms of Use and fail to cure that breach within 14 days of receipt of written notice from us;
  2. you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days;
  3. you are using the Platform in a manner that would cause a real risk of harm or loss to us or other users;
  4. you have not accessed the Platform for 12 consecutive months; or
  5. you select the monthly subscription option and have not paid the Fees for the billing period in accordance with clause 4.2.
8.2 Effects of termination

If these Terms of Use are terminated:

  1. except as contained in this clause 8, the rights and licences granted by us to you will cease immediately;
  2. we may, at your request, provide you with access to Your Account at the then-current Fees so that you may export your Data; and
  3. after a commercially reasonable period of time, we may delete any Data relating to Your Account.
8.3 Survival

The following sections will survive expiry or termination of these Terms of Use:

  1. clause 0 (Payment);
  2. clause 6 (Intellectual Property Rights);
  3. clause 8.2 (Effects of Termination);
  4. clause 9 (Indemnification);
  5. clause 10 (Disclaimers);
  6. clause 11 (Limitation of liability);
  7. clause 12 (Disputes); and
  8. clause 13 (Miscellaneous).
9. Indemnification
9.1 By the Customer

You will indemnify, defend and hold harmless Phoria, Subcontractors, Subprocessors and each of their officers, employees, agents and representatives, from and against all liabilities, damages and costs (including settlement costs and reasonable legal fees) arising out of any claim by a third party against Phoria regarding:

  1. your Data; or
  2. your use, and your End Users’ use, of the Platform in violation of these Terms of Use.
9.2 By Phoria

Subject to clause 11, we will indemnify, defend and hold harmless the Customer from and against all liabilities, damages and costs (including settlement costs and reasonable legal fees) arising out of any claim by a third party against you pursuant to which our technology used to provide the Platform is proven to have infringed or misappropriated any Intellectual Property Rights of the third party. In no event will we have any obligations or liability under this clause 9.2 arising from or in connection with:

  1. use of our Platform in a modified form or in combination with materials not furnished by us; and
  2. any content, information or Data provided by you, End Users or other third parties.
9.3 Possible infringement

If the Platform infringes a third party’s Intellectual Property Rights, we will (at our option):

  1. obtain the right for you, at our expense, to continue using the Platform;
  2. provide a non-infringing functionally equivalent replacement; or
  3. modify the Platform so that it no longer infringes such rights.

If we do not believe the options described in this clause 9.3 are commercially reasonable, we may suspend or terminate your use of the affected Platform, with a pro rata refund of prepaid Fees for the Platform.

9.4 General

The Party seeking indemnification will notify the other Party promptly of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defence, except that:

  1. any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and
  2. the other Party may join in the defence with its own legal representation at its own expense.

The indemnities in this clause 9 are the only remedies under these Terms of Use available to either Party for violation by the other Party of a third party’s Intellectual Property Rights.

10. Disclaimers

The Platform is provided “as is”, “with all faults” and “as available”, to the fullest extent permitted by Law. Except as expressly stated in these Terms of Use, Phoria and its suppliers and distributors make no warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use or non-infringement. We do not guarantee that the Platform will be uninterrupted, error-free or free of harmful components or that your Data will be secure or not otherwise lost or damaged. You are responsible for using the Platform in accordance with the these Terms of Use and backing up any Data on the Platform.

11. Limitation of liability

To the maximum extent permitted by Law, except for the indemnification obligations in clause 9.1, we exclude all liability and responsibility to you (or any other person) (whether under statute, in contract, in tort, including for negligence, or otherwise), for any loss (including loss of Data, profits and savings) or damage arising out of or in connection with the use of, or reliance on, the Platform.

If, notwithstanding the terms of these Terms of Use, we are found to be liable to you for any damage or loss which arises under or in connection with these Terms of use, including but not limited to your use of the Platform, our aggregate liability to you will not exceed the supplying of the services to you again or the fees paid to us by you in accordance with these Terms of Use in respect of the 12 months prior to the event giving rise to liability.

12. Dispute resolution
  1. If any dispute arises out of, or in connection with, these Terms of Use, subject to clause 12(b), each Party agrees to first attempt to resolve the dispute informally by contacting the other Party through the notice procedures in clause 13.6.
  2. Either Party may bring legal proceedings in the courts of Victoria solely for the injunctive relief to stop unauthorised use or abuse of the Platform or infringement of Intellectual Property Rights without first engaging in the informal dispute process described in clause 12(a).
  3. If a dispute is not resolved within 30 days following that notice, then the Parties will mediate the dispute in accordance with the mediation rules of the Law Institute of Victoria and the parties must request the President of the Law Institute of Victoria or the President’s nominee to select the mediator and determine the mediator’s remuneration.
  4. Each Party will bear its own costs in relation to the mediation and equally share the cost of the mediator (if any).
  5. If the Parties do not resolve the dispute in the first three days of mediation, then either Party may issue proceedings.
  6. Pending resolution of any dispute, the parties will continue to perform their respective obligations under these Terms of Use without prejudice to their respective rights and remedies.
  7. You may only resolve disputes with us on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions and consolidation with other arbitrations are not allowed (to the extent allowed by applicable Law).
13. Miscellaneous
13.1 Modification

We may revise these Terms of Use from time to time and the most current version will always be posted on our Platform. If a revision, in our sole discretion, is material, we will notify you. By continuing to access or use the Platform after revisions become effective, you agree to be bound by the revised Terms of Use. If you do not agree to the terms of the revised Terms of Use, you may terminate these Terms of Use. If you choose to terminate these Terms of Use in accordance with this clause 13.1 you will not be entitled to a refund.

13.2 Entire agreement

These Terms of Use supersede any prior agreements or understanding between the Parties, and constitutes the entire agreement between the Parties related to this subject matter. All attachments to these Terms of Use, EULA and Privacy Policy (as updated from time to time), Customer invoices and Order Forms executed by the Parties are incorporated into these Terms of Use by reference.

13.3 Interpretation of conflicting terms

If there is a conflict between the documents that make up these Terms of Use, the documents will control in the following order: the invoice, the Order Form, these Terms of Use, the Privacy Policy. The terms contained in these Terms of Use will be considered the Confidential Information of Phoria, and you will not disclose the information to any third parties. If End Users are required to click through the EULA in order to use the Platform, those click-through terms are subordinate to these Terms of Use and these Terms of Use will prevail if there is a conflict.

13.4 Governing Law

These Terms of Use are governed by and must be construed in accordance with the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts that may hear appeals from those courts in respect of any proceedings in connection with these Terms of Use.

13.5 Severability
  1. A word or provision must be read down if:
    1. these Terms of Use are void, voidable or unenforceable if it is not read down;
    2. these Terms of Use will not be void, voidable or unenforceable if it is read down; and
    3. the provision is capable of being read down.
  2. A word or provision must be severed if:
    1. despite the operation of this clause 13.5, the provision is void, voidable or unenforceable if it is not severed; and
    2. these Terms of Use will be void, voidable or unenforceable if it is not severed.
  3. The remainder of these Terms of Use have full effect even if clause 13.5(b)(i) and (ii) applies.
13.6 Notice

Any Notice:

  1. must be in writing and signed by a person duly authorised by the sender;
  2. must be addressed or delivered to the addresses of the parties specified in the Order Form by hand, by prepaid post or by email; and
  3. is taken to be given and made:
    1. in the case of hand delivery, when delivered;
    2. in the case of delivery by post, five Business Days after the date of posting (if posted to an address in the same country) or ten Business Days (if posted to an address in another country); and
    3. in the case of an email, on the day and at the time that the recipient confirms the email is received.

This clause 13.6 does not limit the way in which a notice can be deemed to be served under any Law.

13.7 Waiver

A waiver of any default is not a waiver of any subsequent default.

13.8 Assignment

You may not assign or transfer these Terms of Use or any rights or obligations under these Terms of Use without our written consent. We may assign these Terms of Use or any rights or obligations under these Terms of Use to one of our related bodies corporate or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of our assets.

13.9 No agency

The Parties are not legal partners or agents, but independent contractors.

13.10 Force majeure

Except for payment obligations, the Parties will not be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example natural disaster, act of war or terrorism, riot, labour condition, governmental action and Internet disturbance).

13.11 No third party beneficiaries

There are no third party beneficiaries to these Terms of Use. Without limiting this clause, your End Users are not third party beneficiaries to your rights under these Terms of Use.