Terms and Conditions

Last updated 15 January 2024

These terms of use (Terms of Use) are between Phoria and the Provider and covers the Provider’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 and other Services. By clicking “I agree”, signing your contract for the provision of the Services or using the Services, you agree to these Terms of Use as a Provider. 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 Services.

If you are using the Services 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 Services if you are our direct competitor, except with our prior written consent.

1. Definitions

Administrator means the Provider-designated technical End User who administers the Services to the End Users on the Provider’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.
Admin Account means the administrative account provided to the Provider by Phoria for use by the Administrator for the purpose of administering the Services.
Business Day means a day on which banks are open for general banking business in Melbourne, excluding Saturdays, Sundays and public holidays.
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.
Customer means a customer of the Provider from whom the Provider collects payment from via the payment service offered by Phoria as described in clause 5 (Charging your Customers) below.
Customer Fee means the fee charged by the Provider for the provision of Provider Services to a Customer, as described in clause 5.1 below.
Data means any content or information that is submitted or uploaded to the Platform by the Provider or End Users.
End User means a user of the Provider’s account. End Users may include the Provider’s employees and consultants.
End User Account means a user account established by the Provider through the Platform for an End User.
EULA means the end user licence agreement between Phoria and an End User, available here.
Fees means the amounts invoiced to the Provider by Phoria for the licence of the Platform and use of the Services, 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 Provider on the Order Form.
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.
Intellectual Property Rights means current and future rights conferred by statute, common law, equity or any corresponding law anywhere in the world in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable and any rights of publicity or other proprietary rights including:
1. all rights in all applications to register these rights; and
2. all renewals and extensions of these rights.
Law includes:
1. Australian Consumer Law;
2. any statute, regulation, rule, by-law, ordinance, proclamation, judgement, 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 judgement made under that law; and
4. that law as amended, consolidated, supplemented, re-enacted or replaced.
Order means an order placed by a Provider via the Platform for a virtual tour overlay, post production, floor and site plan or other of the Services offered by Phoria.
Order Form means the ordering page for subscription to the Platform and use of the Services.
Party means a party to these Terms of Use.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not:
1. about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; and
2. which is received or learnt by the Provider from any source and which the Provider uses or makes available to any party (including, but not limited to Stripe) in the course of providing the Provider Services to a Customer.
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.
Privacy Policy means the privacy policy of Phoria, available here
Provider 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 Provider.
Provider Services means the services provided by a Provider to a Customer using the Platform, as described in clause 5.1 below.
Security Emergency means:
1. use of the Platform that does or could disrupt the Services, other customer’s use of the Services or the infrastructure used to provide the Services; or
2. unauthorised third party access to the Services.
Services means the Platform supplied by Phoria to Providers and other services provided by Phoria in connection with the Platform.
Subcontractor means an entity to whom Phoria subcontracts any of its obligations under these Terms of Use.
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 Services.
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 Services, including any related penalties or interest.
Term means the term for the provision of Services beginning on the date that Phoria makes the Services available to the Customer and continuing until terminated in accordance with these Terms of Use.
Your Account means the account you are using in your capacity as a Customer.

2. Our Services

2.1 Provision
These Terms of Use govern access to and use of the Services by the Provider. You and your End Users will be provided with access to and use of the Services 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 Services, you are agreeing to the terms of our Privacy Policy.

2.3 Modifications
We may update the Services from time to time. The Services will update automatically once a new version or feature is available. If we change the Services 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 Services 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:

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;
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;
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;
use the Services for activities where use or failure of the Services could lead to physical damage, death or personal injury;
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;
use any unauthorised means to modify or gain access to the Platform;
interfere with any licence key mechanism in the Platform or otherwise circumvent mechanisms in the Platform intended to limit use;
sell, resell, redistribute or lease the Platform;
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
remove or obscure any proprietary or other notices contained in the Platform.

3.4 Compliance
You and your End Users must use the Services 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. Our Fees are published on our website and may be updated from time to time. 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.

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

4.2 Payment
To use our Services, you must have a sufficient balance in Your Account to cover the Fees charged by us. We may suspend or terminate your access to the Platform and Services if Your Account ceases to have a sufficient balance to cover the Fees that are payable.

When you place an Order or sign up to a monthly plan, you will make a payment from Your Account equal to the Fee we charge for that Service and the amount of the payment will be automatically deducted from the balance in Your Account.

You are provided with two payment options for the Fees:

Monthly plans If you select the monthly subscription option, the Fees are payable monthly in advance. and will be deducted automatically from Your Account at the start of each month. If you place additional Orders that are not covered by your monthly plan, then the additional amounts incurred will be charged at the end of the month in which those Fees were incurred.
Pay as you go If you select the pay-as-you-go option, the Fees are payable for each Order at the end of each month in which those Fees were incurred
We will continue to charge you the Fees until your subscription to the Platform is terminated in accordance with these Terms of Use.

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.

4.4 Unclaimed monies in Your Account
If there are funds in Your Account and there has been no activity in Your Account for a period of time prescribed by applicable Law, we may be required to report such remaining funds in Your Account as unclaimed property in accordance with applicable Law.

5. Charging your Customers

5.1 How it works
We have an agreement with Stripe, Inc. (Stripe) that enables us to offer a Service to our Providers where Providers can use our Platform to bill their Customers for the provision of Provider Services. We charge a service fee equal to 1.5% of the Customer Fee that you, in turn, charge your Customers for the provision of this Service, as updated from time to time. Our service fee will be deducted from, and you authorise us to deduct this service fee from, the Customer Fee at the time that your Customer places an order for the Provider Services.

To access this Service, you must set up a Stripe account and provide the necessary information to allow the Customer booking service to be made available on your website. Your Customers can then select Provider Services via your website.

When a Customer places an order for your Provider Services, they are charged the Customer Fee and pay this Customer Fee into your Stripe account. By using this Service, you are taken to direct Stripe to hold the Customer Fee (less our service fee) in escrow until you complete the provision of Provider Services to your Customer. Your Customers will be billed in accordance with Stripe’s billing process and Stripe will provide your Customers with a tax invoice in respect of the Customer Fee.

5.2 Customer refunds
When a Customer places an Order with you, you agree that you will make your Customers aware of the refund and cancellation policy that will apply and which you must adopt as follows:.

If a customer order for Provider Services is cancelled with more than 24 hours’ notice, a full refund of the Customer Fee will be provided by the Provider. If a customer order for Provider Services is cancelled with less than 24 hours’ notice, a 50% refund of the Customer Fee will be provided by the Provider.

We may update this refund and cancellation policy from time to time with notice to you.

5.3 Provider obligations and acknowledgements
By using this Service, you agree and acknowledge that:

the Provider Services you provide to your Customers, and any refunds requested by the Customer, are your responsibility;
the provision of, and payment for, the Provider Services is an agreement between the Provider and the Customer and we are not a party to any agreement between a Provider and a Customer;
we do not have any control over, and are not responsible or liable for, the products and services purchased by your Customers;
we cannot ensure that a Customer you are dealing with will complete the transaction or pay the Customer Fee;
you will provide delivery and customer support for each Customer;
we do not determine if you are liable for any Taxes;
We do not collect or pay any Taxes on your behalf that may arise from your use of this Service or your provision of the Provider Services. If you determine that you are liable for any Taxes, then it is your responsibility to select this condition when setting up your Stripe account;
it is your responsibility to ensure that your Customers are aware that their Personal Information will be shared with Stripe and Phoria and to otherwise comply with all privacy laws that apply to you; and
We have no obligation to protect copies of Personal Information of Customers that you obtain in the course of providing Provider Services or which you transfer outside of the Platform.

6. Suspension

6.1 End Users
If an End User:

violates these Terms of Use;
violates the EULA; or
uses the Services 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.

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

7. Intellectual Property Rights

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

us any Intellectual Property Rights in your Data; or
you any Intellectual Property Rights in the Platform or our trademarks and brand features.

7.2 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, including but not limited to commercialising the Data. This permission also extends to Subprocessors and Subcontractors. This licence continues even if you stop using the Platform unless you delete your Data.

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

8. Term

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

9. Termination

9.1 Generally
You are free to stop using the Platform and other Services 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 Services by written notice to you if:

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;
you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days;
you are using the Services in a manner that would cause a real risk of harm or loss to us or other users;
you have not accessed the Platform for 12 consecutive months; or
you select the monthly subscription option and have not paid the Fees for the billing period in accordance with clause 4.2.

9.2 Effects of termination
If these Terms of Use are terminated:

except as contained in this clause 9, the rights and licences granted by us to you will cease immediately;
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
after a commercially reasonable period of time, we may delete any Data relating to Your Account.

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

clause 0 (Payment);
clause 7 (Intellectual Property Rights);
clause 9.2 (Effects of Termination);
clause 10 (Indemnification);
clause 11 (Disclaimers);
clause 12 (Limitation of liability);
clause 13 (Disputes); and
clause 14 (Miscellaneous).

10. Indemnification

10.1 By the Provider
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:

your Data; or
your use, and your End Users’ use, of the Services in violation of these Terms of Use.

10.2 By Phoria
Subject to clause 12, we will indemnify, defend and hold harmless the Provider 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 Services 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 10.2 arising from or in connection with:

use of our Services in a modified form or in combination with materials not furnished by us; and
your provision of services to a Customer; and
any content, information or Data provided by you, End Users or other third parties.

10.3 Possible infringement
If the Services infringe a third party’s Intellectual Property Rights, we will (at our option):

obtain the right for you, at our expense, to continue using the Services;
provide a non-infringing functionally equivalent replacement; or
modify the Services so that they no longer infringes such rights.
If we do not believe the options described in this clause 10.3 are commercially reasonable, we may suspend or terminate your use of the affected Services, with a pro rata refund of prepaid Fees for the affected Services.

10.4 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:

any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and
the other Party may join in the defence with its own legal representation at its own expense.
The indemnities in this clause 10 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.

11. Disclaimers

The Services are 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 Services 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 Services in accordance with these Terms of Use and backing up any Data on the Platform.

12. Limitation of liability

To the maximum extent permitted by Law, except for the indemnification obligations in clause 10.1, 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 Services.

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 Services, 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

13. Dispute resolution

If any dispute arises out of, or in connection with, these Terms of Use, subject to clause 13(b), each Party agrees to first attempt to resolve the dispute informally by contacting the other Party through the notice procedures in clause 14.6.
Either Party may bring legal proceedings in the courts of Victoria solely for the injunctive relief to stop unauthorised use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute process described in clause 13(a).
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.
Each Party will bear its own costs in relation to the mediation and equally share the cost of the mediator (if any).
If the Parties do not resolve the dispute in the first three days of mediation, then either Party may issue proceedings.
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.
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).

14. Miscellaneous

14.1 Modification
We may revise these Terms of Use from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material, we will notify you. By continuing to access or use the Services 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 14.1 you will not be entitled to a refund.

14.2 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), Provider invoices and Order Forms executed by the Parties are incorporated into these Terms of Use by reference.

14.3 Interpretation of conflicting terms
If there is a conflict between the documents that make up these Terms of Use, the documents will be controlled 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 Services, those click-through terms are subordinate to these Terms of Use and these Terms of Use will prevail if there is a conflict.

14.4 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.

14.5 Severability

A word or provision must be read down if:
- these Terms of Use are void, voidable or unenforceable if it is not read down;
- these Terms of Use will not be void, voidable or unenforceable if it is read down; and
- the provision is capable of being read down.
A word or provision must be severed if:
- despite the operation of this clause 14.5, the provision is void, voidable or unenforceable if it is not severed; and
- These Terms of Use will be void, voidable or unenforceable if it is not severed.
The remainder of these Terms of Use have full effect even if clause 14.5(b)(i) and (ii) applies. 14.

14.6 Notice

Any Notice:

must be in writing and signed by a person duly authorised by the sender;
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
is taken to be given and made:
- in the case of hand delivery, when delivered;
- 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
- in the case of an email, at the time the email was sent unless the sender receives an automated message that the email was not delivered.

This clause 14.6 does not limit the way in which a notice can be deemed to be served under any Law.

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

14.8 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.

14.9 No agency
The Parties are not legal partners or agents, but independent contractors.

14.10 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).

14.11 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.