End User Licence Agreement

Last updated 15 January 2024

This End User Licence Agreement (EULA) covers your use of and access to our CAPTUR3D software product (the Platform). Our privacy policy (available here) explains how we collect and use your information. By using our Platform, you are agreeing to be bound by this EULA and our Privacy Policy, and are binding your organisation to either the Terms of Use or ELA (as applicable).

1. Definitions

Data means any content or information, including personal information referred to in our Privacy Policy, that is submitted or uploaded to the Platform by a User.
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 worldwide rights under patent, copyright, trade secret, trademark, moral rights and other similar 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.
Party means a party to this EULA.
Phoria means Phoria Pty Ltd ACN 169 885 796 and its related bodies corporate. The terms “we”, “us” and “our” when used in this EULA are a reference to Phoria.
Subcontractor means an entity to whom Phoria subcontracts any of its obligations under this EULA.
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.
User means an end user of our Platform. The terms “you”, “your” and “yours” when used in this EULA are a reference to the User.

2. Permissions

When you use the Platform, you provide us with your Data. We need your permission to host, back up, share when you request and otherwise handle your Data. To provide you with certain features of the Platform we may require our systems to access, store and scan your Data. You give us permission to do those things, and this permission extends to our Subcontractors, Subprocessors and trusted third parties we work with.

We grant you a limited, non-exclusive, non-transferable, royalty-free, revocable licence to use the Platform.

To the extent that any component of the Platform is offered under an open source licence, we will make that licence available to you on the basis that you acknowledge that the provisions in the open source licence may expressly override some terms of this EULA.

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

You represent and warrant to us as at the date of your acceptance of this EULA and each time you use the Platform, that you:

will maintain the confidentiality of the password to your account and will not give others access to your account;
will not copy, upload, download or share Data via the Platform unless you have the right to do so;
have all the power to enter into and perform these terms of this EULA and have obtained all necessary consents and corporate authorisations to enable you to do so;
will only use the Platform for lawful purposes, and in accordance with this EULA, all applicable Laws, any notice sent by us to you or any condition posted within the Platform or on our website;
will comply in a timely, proper and efficient manner with your obligations under this EULA;
will provide to us, on request, any documents, information, instructions or directions reasonably required by us to enable us to perform our obligations, provide the Platform or do any other thing in accordance with this EULA or as required by Law; and
are 16 years of age or older.
We may review your conduct and content for compliance with this EULA, however, we have no obligation to do so. To the fullest extent permitted by Law, we are not responsible in any way for the Data uploaded and shared via the Platform.

4. Intellectual Property Rights

This EULA does not grant you any right, title or interest in the Platform, others’ Data submitted to the Platform, our trademarks, logos and other brand features.

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

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

We reserve the right to delete or disable Data alleged to be infringing copyright, and to terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Platform is:

5. Termination

You are free to stop using the Platform at any time. We reserve the right to suspend or terminate your access to the Platform with notice to you if:

you are in breach of this EULA;
you are using the Platform in a manner that would cause a real risk of harm or loss to us or other Users; or
we are prohibited by Law from allowing you to access the Platform.

We will provide you with reasonable advance notice via the email address linked to your account to remedy the activity that prompted us to contact you and give you the opportunity to export your Data from our Platform. If after such notice you fail to take the requested steps, we will terminate or suspend your access to the Platform.

We will not provide notice before termination where:

you are in material breach of this EULA;
doing so would cause us legal liability or compromise our ability to provide the Platform to other users; or
we are prohibited from doing so by Law.

6. Discontinuation

We may decide to discontinue the Platform in response to unforeseen circumstances beyond our control or to comply with a legal requirement. If we do so, we will give you reasonable prior notice so that you can export your Data from our Platform.

7. Disclaimer

The Platform is provided “as is”, “with all faults” and “as available”, to the fullest extent permitted by Law. Except as expressly stated in this EULA, Phoria and our 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 terms of this EULA and backing up any Data that is stored on the Platform.

8. Limitation of liability

Despite any other provision of this EULA and to the maximum extent permitted by Law, we exclude all liability and responsibility to you (or any other person) (whether under statute, in contract, 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 this EULA, we are found to be liable to you for any damage or loss which arises under or in connection with this EULA, 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 for your use of the Platform.

9. Dispute resolution

Before filing a claim against us, you agree to first attempt to resolve the dispute informally by contacting us at [email protected].

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 this EULA 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).

We do not have to follow the informal dispute resolution process if we are seeking injunctive relief to stop unauthorised use or abuse of the Platform or infringement of our Intellectual Property Rights.

10. Governing law

This EULA is 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 this EULA.

11. Entire agreement

This EULA constitutes the entire agreement between you and us with respect to the subject matter of this EULA and supersedes any prior negotiations, representations, understandings or arrangements applicable to the subject matter of this EULA. This EULA creates no third party beneficiary rights.

12. Waiver, severability and assignment

Our failure to enforce a provision is not a waiver of our right to do so later. If a provision is found unenforceable, the remaining provisions of this EULA will remain in full effect and the unenforceable provision will be substituted with an enforceable provision that reflects our intent as closely as possible will be substituted. You may not assign any of your rights under this EULA, and any such attempt to do so will be void. We may assign this EULA or any rights or obligations under this EULA to a subsidiary or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of our assets.

13. Modifications

We may revise this EULA from time to time to better reflect changes to the Law, new regulatory requirements or improvements or enhancements made to our Platform.

If an update affects your use of the Platform or your legal rights as a user of our Platform, we will notify you prior to the update’s effective date by sending an email to the email address associated with your account or via an in-product notification. The updated EULA will be effective no less than 30 days from when we notify you.

If you do not agree to the updates we make, you must cancel your account before they become effective. By continuing to use or access the Platform after the updates come into effect, you agree to be bound by the revised EULA.