EnvisionVR Pty Ltd
Envision VR Pty Ltd (EVR) provides Services including conversion of CGI Partner Models to provide EVR Platform Models, and hosting of EVR Platform Models on the EVR Platform for access by EVR Platform Users. The Services are provided in accordance with these Terms and Conditions.
|EVR||means Envision VR Pty Ltd, ABN 23 638 791 401.|
|EVR Platform Model||means a set of data which is configured to be hosted and experienced by EVR Platform Users via the EVR platform, being generated from a CGI Partner Model for a specific Location, for example via Virtual Reality and/or Augmented Reality technology.|
|CGI Partner||means a third party which generates one or more CGI Partner Models for the Customer.|
|CGI Partner Model||means a three-dimensional model for a Location, created by a CGI Partner for the Customer, including any associated data files.|
|Direct Debit||means an automated transfer of funds from the Customer to EVR accordance with these Terms.|
|EVR Platform||means one or more software applications made available by EVR (including iOS and Android apps), and associated IT infrastructure.|
|EVR Platform User||means an end user of the EVR Platform, for example a user of an iOS or Android app which forms part of the EVR Platform.|
|Services||means services provided by EVR to Customers, including conversion of CGI Partner Models to provide EVR Platform Models, and hosting of EVR Platform Models on the EVR Platform for access by EVR Platform Users.|
|Location||means an existing or hypothetical (designed) physical location, such as a house, apartment, building, townhouse, factory, warehouse, or the like.|
|Customer||means an entity which engages EVR for the Services, being a company or individual which enters into the Services Agreement.|
|Services Agreement||means an agreement entered into between the Customer and EVR, for example via a web page made available by EVR; by accepting the Services Agreement the Customer becomes bound by these Terms.|
|Business Day||means a day that is not a Saturday, a Sunday or a gazetted public holiday in Sydney, NSW.|
|Confidential Information||means all know-how, financial information and other commercially valuable or sensitive information in whatever form, including Customer names, pricing information, business models, budgets, project information, designs, samples, patents, trade secrets, and any other materials or information of whatever description, and any other information which a party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of a party’s employees or management. The following are exceptions to such information:. |
a) information which is already lawfully in the public domain or enters the public domain otherwise than as a result of an unauthorised disclosure;
b) information which is or becomes lawfully available to the recipient party from a third party who has the lawful power to disclose such information to the recipient party on a non-confidential basis;
c) information which is rightfully known by the recipient party (as shown by its contemporaneous written record) prior to the date of disclosure;
(d) information extracted form Registered Lease Documents; and
d) De-Identified Data.
|Other Provided Content||means any content, other than the CGI Partner Model, provided by the CGI Partner or the Customer to EVR.|
|Direct Debit||means an automated transfer of funds from the Customer to EVR accordance with these Terms.|
|Effective Date||means the Effective Date recorded in the Order agreement.|
|Fees||means monies payable by the Customer to EVR in accordance with the Services Agreement and/or in accordance with these Terms, and may include Conversion Fees and/or Hosting Fees.|
|Conversion Fee||means one-off amount payable by the Customer to EVR in accordance with the Services Agreement for conversion of the CGI Partner Model into an EVR Platform Model|
|Hosting Fee||means a periodic (e.g. monthly) fee payable by the Customer in accordance with the Services Agreement for hosting of the EVR Platform Model on the EVR Platform thereby to enable experiencing of the EVR Platform Model by EVR Platform Users.|
|GST||GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|Insolvency Event||means circumstances in which a party: |
a) is unable to pay its debts as they fall due;
b) makes or commences negotiations with a view to making, a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors;
c) takes any corporate action or any steps are taken or legal proceedings are started for:
(i) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent; or
(ii) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or
(iii) seeks protection or is granted protection from its creditors, under any applicable legislation;
d) becomes bankrupt or ceases to carry on business.
|Intellectual Property Rights||means any and all intellectual and commercial property rights throughout the world including, without limitation, copyright, trademarks, designs, patents, the right to keep Confidential Information confidential, knowhow and trade secrets, whether or not now existing and whether or not registered or registrable and includes applications for and any right to apply for registration of such rights and includes all renewals and extensions.|
|Terms||means terms set out in this document, or updated terms published at (www.envisionvr.net) or another web address of which the Customer is made aware, with more recent terms taking precedence over earlier versions.|
1.1 EVR may make the Services Agreement available to the Customer via a range of approaches at its own discretion, including via an online platform and via a hard copy form.
1.2 The Services Agreement may specify fees payable by the Customer, including by way of example a Conversion Fee and/or a Hosting Fee.
1.3 By agreeing to the Services Agreement (e.g. via an online platform, and/or via providing payment), the Customer agrees to pay the Conversion Fee and the Hosting Fee in accordance with payment deadlines specified by EVR. EVR may offer various payment methods, for example via a credit card or direct debit agreement, at the discretion of EVR.
1.4 The Customer will pay a specified proportion of the Conversion Fee prior to any of the Services being provided.
1.5 The Customer will pay the Hosting Fee in accordance with payment terms specified by EVR (for example on a monthly basis, paid in advance). EVR may periodically adjust the Hosting Fee at its own discretion, and will provide advanced notice of such adjustments to the Customer.
1.6 In the event that the Customer does not pay the Hosting Fee within payment terms specified by EVR, the relevant EVR Platform Content may be withdrawn from accessibility via the EVR Platform at the sole discretion of EVR.
1.7 The Customer may terminate the Services at any time by request to EVR in writing, in which case the relevant EVR Platform Content may be withdrawn from accessibility via the EVR Platform at the sole discretion of EVR.
1.8 In the event that the Customer terminates the Services, no Fees will be refunded.
1.9 Unless otherwise expressly stated, all amounts payable to EVR are expressed to be exclusive of GST.
2. Approval of CGI Partner Model
2.1 By accepting the Services Agreement, the Customer confirms that they have reviewed and approved the CGI Partner Model. To the extent that changes affecting the CGI Partner Model are required, that is an issue to be resolved between the Customer and the CGI Partner, and EVR will not participate in resolution of any disputes between the Customer and the CGI Partner.
2.2 To the extent that a CGI Partner Model is modified by the Customer or the CGI Partner following acceptance of the Services Agreement, EVR may levy additional fees in relation to the Services.
3. Approval of EVR Platform Model by Customer
3.1 Prior to publishing the EVR Platform Model on the EVR Platform, EVR will provide the Customer with an opportunity to review the EVR Platform Model.
3.2 The Customer may request that EVR resolve any discrepancies or ambiguities found in the EVR Content Model.
3.3 If the discrepancies or ambiguities are a result of data in the CGI Partner Model, EVR may charge additional fees associated with resolving the discrepancies or ambiguities.
3.4 If the discrepancies or ambiguities are a result work performed by EVR in converting the CGI Partner Model to the EVR Platform Model, EVR will not charge additional fees associated with resolving the discrepancies or ambiguities.
3.5 EVR does not warrant that the EVR Platform Model will be an exact representation of the Location. EVR gives no express or implied warranty that any EVR Platform Model is fit for the Customer’s purpose or that any EVR Platform Model complies with all relevant legislation.
4. Ownership of Content
4.1 These Terms and the Services Agreement do not affect ownership of the CGI Partner model. All Intellectual Property in a CGI Partner Model remains the property of its existing owner as at the date the Services Agreement is accepted.
4.2 All EVR Platform Models, and Intellectual Property Rights pertaining thereto, are the sole exclusive property of EVR. EVR is under no obligation to provide data files relating to EVR Platform Models to the Customer at any time, with such models being exclusively accessible via the EVR Platform via technologies selected at the sole discretion of EVR.
4.3 All proprietary content that is the property of EVR is protected by Australian and international copyright laws. The Customer must not reproduce, transmit, republish or prepare derivative works from any such proprietary content, except as expressly authorised by these Terms or with the prior written consent of EVR.
4.4 The look and feel of the EVR Platform (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of EVR. These trademarks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of EVR.
5. License to use models/content
5.1 To the extent that the Customer has any Intellectual Property Rights in the CGI Partner Model or the Other Provided Content, the Customer grants to EVR an irrevocable worldwide perpetual non-exclusive royalty free license to those Intellectual Property Rights for the purposes of providing the Services, and providing other agreed services to the Customer, including the right to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of those Intellectual Property Rights
5.2 The Customer acknowledges that, to the extent that the CGI Partner has any Intellectual Property Rights in the CGI Partner Model or the Other Provided Content, the CGI Partner grants to EVR an irrevocable worldwide perpetual non-exclusive royalty free license to those Intellectual Property Rights for the purposes of providing the Services, and providing other agreed services to the Customer, including the right to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of those Intellectual Property Rights.
6. Review of Service Agreement details
6.1 After the Customer accepts the Service Agreement, EVR has a period of fourteen (14) days in which to verify that all details are accurate, including details relating to attributes of the CGI Partner Model, and in the event that inaccuracies are identified EVR will not be bound to the Services Agreement, and will provide a revised Services Agreement to the Customer (which may include a corrected Conversion Fee and/or Hosting Fee).
7. Obligations of the customer
7.1 The Customer shall provide, upon request by EVR, any relevant information regarding the Location. EVR will rely on the accuracy and completeness of this information in carrying out the Services.
7.2 The Customer:
(a) represents and warrant to EVR that in any material provided to EVR does not infringe any copyright, intellectual property, moral right or other legal right of any other person; and
(b) grants to EVR a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of any material provide by the Customer to EVR in any way at EVR’s absolute discretion.
8. Direct Debit Terms
8.1 This section applies in the case that the Order Terms specify that the Customer will pay the Fees via Direct Debit, and outlines EVR’S commitment to the Customer as a Direct Debit customer and the Customer’s rights and responsibilities throughout the Direct Debit process
8.2 EVR will provide the Customer with at least 14 days prior notice if we change any Direct Debit terms under Clause 11. We may also cancel the Direct Debit by notice to the Customer.
8.3 EVR will keep all information about the Customer’s nominated bank account private and confidential, only to be disclosed at the Customer’s request or that of the Customer’s financial institution in connection with a claim made about an alleged incorrect or wrongful debit.
8.4 Unless otherwise agreed in writing, EVR deduct payment to a maximum of the amount of the Fees due on your account at the due date on which a Direct Debit is triggered;
8.5 Where the Direct Debit due date falls on a non-working day or a national public holiday, EVR will deduct the payment amount on the next business day.
8.6 If the payment is dishonoured because there are insufficient funds in the Customer’s nominated account EVR:
(a) will notify you the Customer try to deduct the payment on another day;
(b) may make other attempts to take the payment; and
(c) may cancel the Customer’s Direct Debit agreement if a payment is dishonoured.
(d) may pass on to the Customer any fees or charges incurred by EVR as a result of the payment being dishonoured.
8.7 The Customer must ensure:
(a) Its account information supplied to us is correct by checking it against a recent statement from the relevant financial institution.
(b) Its nominated account can accept Direct Debits through the Bulk Electronic Clearing System (BECS). Direct Debit through BECS is not available on all Financial Institution accounts; and
(c) Sufficient funds are available in the nominated account to meet a payment on its due date.
8.8 Where the Customer considers a payment has been initiated incorrectly, or there is a discrepancy in a payment amount, the Customer should contact EVR immediately.
8.9 The Customer must advise EVR if:
(a) Its nominated account is transferred, closed or the Direct Debit is cancelled. The Customer must do so as soon as it becomes aware of this change; or
(b) The Customer wishes to change its bank account or personal details. To take effect for a next Direct Debit payment, EVR must receive a request at least 10 business days before that Direct Debit due date.
8.10 If the Customer has agreed to a Direct Debit payment, funds will be debited from the Customer’s account on a monthly basis until such a time as the Customer stops that Direct Debit payment by notifying EVR of a request to stop Direct Debit at least 10 business days before the Customer’s next Direct Debit due date
8.11 The Customer may stop a particular Direct Debit payment by notifying EVR at least 10 business days before your next Direct Debit due date. The Services may be affected by non-payment in accordance with the Terms.
8.12 The Customer may terminate its Direct Debit agreement at any time by notifying EVR or your financial institution at least 10 business days before your next Direct Debit due date. The Services may be affected by non-payment in accordance with the Terms.
8.13 In accepting to pay the Fees via Direct Debit, the Customer authorises:
(a) EVR to arrange for funds to be debited: (i) from the Customer’s nominated account, and (ii) for an amount that is determined in accordance with the Order Agreement, Order Terms and Terms, which EVR may debit or charge the Customer through the Bulk Electronic Clearing System (BECS) until further notice in writing.
(b) EVR to verify the details of your nominated account with your financial institution.
(c) The Customer’s financial institution to release information allowing EVR to verify the nominated account.
8.14 This Direct Debit authorisation is to remain in force in accordance with the terms described in this Clause 8.
9. Disclaimer of Warranties
Limitation of liability
9.1 To the maximum extent permitted by law, EVR and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services, EVR Platform Models or any of its content, and in particular do not represent, warrant or guarantee that:
(a) the use of the EVR Platform Model or Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
(b) the EVR Platform Model or Services will meet the Customer’s requirements or expectations;
(c) the quality of any EVR Platform or Services, information or other material purchased or obtained from EVR will meet any particular requirements or expectations; or
(d) errors or defects will be corrected.
Exclusion of liability
9.2 To the maximum extent permitted by law, EVR and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to the Customer or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, the Services or EVR Platform Model or the use of the Services or EVR Platform Model by the Customer or any other person.
9.3 The liability of EVR to the Customer arising under or in connection with the Services including:
(a) in tort (including for negligence);
(b) under statute; or
(c) otherwise, to the extent permitted by law, is limited to the Fees paid by the Customer to EVR.
9.4 EVR has no liability to the Customer in respect of any indirect or consequential losses, (including loss of profit, incurred costs, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
9.5 EVR has no liability in respect of the Services after 1 year from the termination of the Services.
9.6 To the maximum extent permitted by law, EVR and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at EVR’s sole discretion):
(a) the supply of the Services again; or
(b) a refund of the Fees.
9.7 The Customer agrees that the Customer’s use of the Services is at the Customer’s own discretion and risk. The Customer agrees to release EVR and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that the Customer may have against any of them arising from the provision or use of the Services by the Customer or any other person. EVR may plead this release as a bar and complete defence to any claims or proceedings.
9.8 To the maximum extent permitted by law, and without limiting any other provision of these Terms, EVR excludes liability for any delay in performing any of its obligations under the Terms or Service Agreement where such delay is caused by circumstances beyond the reasonable control of EVR, and EVR shall be entitled to a reasonable extension of time for the performance of such obligations.
10.1 If a dispute arises out of or in relation to this agreement:
(a) either party may deliver a notice in writing to the other party outlining the details of the dispute and requiring a meeting within seven business days of the date of the notice to make a bona fide attempt to resolve the dispute the conference must be conducted in good faith and without prejudice;
(b) if the dispute is not resolved within 20 business days, either party may submit the dispute to mediation by delivering to the other a written proposal of mediation;
(c) a proposal of mediation must state the name of a mediator accredited by the Institute of Arbitrators and Mediators Australia (IAMA) in the state of NSW, who is independent and willing to act;
(d) if the parties do not agree on the mediator in writing within seven days after the proposal is delivered, the President of the Chapter of the IAMA in the place of the law that applies, must be requested to nominate the mediator;
(e) the mediation must then proceed in accordance with the rules of the IAMA for mediation except that in no case will one party be required to pay more than half of the costs of mediation, and
(f) if the parties are unable to resolve the dispute by mediation, confirmed by the mediator in writing, either party may take legal action to resolve the dispute.
11.1 Either party may terminate the Service Agreement (and by effect adherence to these Terms) after giving the other party 30 days’ notice in writing without being required to give any reason.
12.1 In these Terms, the following rules of interpretation apply:
(a) headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Terms;
(b) these Terms may not be construed adversely against EVR solely because EVR prepared them;
(c) the singular includes the plural and vice-versa;
(d) a reference to a “person” includes an individual, a firm, a corporation, a body corporate, a partnership, an unincorporated body, an association, a government body or any other entity; and
(e) the meaning of general words is not limited by specific examples introduced by “including”, “for example”, “in particular” or similar expressions.
12.2 The Customer may not assign, transfer or sub-contract any rights or obligations under these Terms without EVR’s prior written consent.
12.3 EVR may assign, transfer or sub-contract any of its rights or obligations under these Terms at any time without notice to the Customer.
12.4 Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. Any failure by EVR to act with respect to a breach by the Customer or others does not waive EVR’s right to act with respect to that breach or any subsequent or similar breaches.
12.5 The provisions of these Terms are severable and, if any provision of these Terms is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.
12.6 EVR reserves the right to amend these Terms and any other policy of EVR at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. The Customer’s continued usage of the Services mean that the Customer accepts those amendments.
12.7 The Customer may only vary or amend these Terms by written agreement with EVR.
Governing law and jurisdiction
12.8 These Terms will be governed in all respects by the laws of New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.