Customer Terms

Published: 18.06.2024

Overview

Enviz Co Pty Ltd (Enviz) provides Services including conversion of CGI Provider Models to provide Enviz Platform Models, and hosting of Enviz Platform Models on the Enviz Platform for access by Enviz Platform Users. The Services are provided in accordance with these Terms and Conditions.

Term	Meaning
Enviz	means Enviz Co Pty Ltd, ABN 23 638 791 401.
Enviz Platform Model	means a set of data which is configured to be hosted and experienced by Enviz Platform Users via the Enviz 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 Enviz accordance with these Terms.
Enviz Platform	means one or more software applications made available by Enviz (including iOS and Android apps), and associated IT infrastructure.
Enviz Platform User	means an end user of the Enviz Platform, for example a user of an iOS or Android app which forms part of the Enviz Platform.
Services	means services provided by Enviz to Customers, including conversion of CGI Partner Models to provide Enviz Platform Models, and hosting of Enviz Platform Models on the Enviz Platform for access by Enviz 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 Enviz 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 Enviz, for example via a web page made available by Enviz; 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 e) de-identified data.
Other Provided Content	means any content, other than the CGI Partner Model, provided by the CGI Partner or the Customer to Enviz.
Direct Debit	means an automated transfer of funds from the Customer to Enviz accordance with these Terms.
Effective Date	means the date on which the Customer accepts these Terms.
Fees	means monies payable by the Customer to Enviz in accordance with the Services Agreement and/or in accordance with these Terms.
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.
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‍1. Engagement

1.1 By agreeing to receive the Services (for example by entering into a Services Agreement), the Customer agrees and acknowledge that they will be bound by these Terms and Conditions.

1.2 Enviz may make the Services Agreement available to the Customer via a range of approaches at its own discretion, including via an online platform (e.g. through a website-based purchase process) and via a hard copy form. The Services Agreement may specify Fees payable by the Customer, which may include one-off fees (for example a conversion fee) and/or recurring periodic fees (Subscription Fees).

1.3 By entering into to the Services Agreement (e.g. via an online platform, and/or via providing payment), the Customer agrees to pay any Fees in accordance with payment deadlines specified by Enviz. Enviz may offer various payment methods, for example via a credit card or direct debit agreement, at the discretion of Enviz.

1.4 The Customer may be required to pay specified Fees prior to any of the Services being provided.

1.5 The Customer may be required to pay Subscription Fee in accordance with payment terms specified by Enviz (for example on a monthly basis, paid in advance). Enviz may periodically adjust the Subscription 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 Subscription Fee within payment terms specified by Enviz, the relevant Enviz Platform Content may be withdrawn from accessibility via the Enviz Platform at the sole discretion of Enviz.

1.7 The Customer may terminate the Services at any time by request to Enviz in writing or via online means Enviz makes available, in which case the relevant Enviz Platform Content may be withdrawn from accessibility via the Enviz Platform at the sole discretion of Enviz.

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 Enviz are expressed to be exclusive of GST.

2. Provision and Approval of Input Media

2.1 It is the responsibility of the Customer to provide any required Input Media to Enviz. This includes:

2.2 (i) checking the Input Media to ensure that it is accurate and conforms with any instructions provided by Enviz; and (ii) ensuring that the Customer is entitled to provide Enviz with all necessary permissions and licenses to use the Input Media for the purposes of the Services; and (iii) providing Enviz with all necessary permissions and licenses to use the Input Media for the purposes of the Services.

2.3 The Customer acknowledges that any inaccuracies in the Input Media will be reflected in an Enviz Platform Model generated from that Input Media, and that Enviz accepts no responsibility or liability resulting from any such inaccuracies. To the extent that changes affecting any Input Media is required, that is an issue to be resolved between the Customer and the relevant Third- Party Media Provider, and Enviz will not participate in resolution of any disputes between the Customer and the Third-Party Media Provider. For example, to the extent that changes affecting the CGI Provider Model are required, that is an issue to be resolved between the Customer and the CGI Provider, and Enviz will not participate in resolution of any disputes between the Customer and the CGI Provider.

2.4 To the extent that any Input Media is modified by or at the request of the Customer following commencement of the generation of an Enviz Platform Model, Enviz may levy additional fees in relation to the Services. For example, to the extent that a CGI Provider Model is modified by the Customer or the CGI Provider after commencement of generation of an Enviz Platform Model, Enviz may levy additional fees in relation to the Services.

3. Approval of Enviz Platform Model by Customer

3.1 Enviz may in some cases provide the Customer with an opportunity to review each Enviz Platform Model prior to finalisation of that Enviz Platform Model.

3.2 Enviz does not warrant that the Enviz Platform Model will be an exact representation of the Location. Enviz gives no express or implied warranty that any Enviz Platform Model is fit for the Customer’s purpose or that any Enviz Platform Model complies with all relevant legislation.

3.3 The Customer takes full responsibility for accuracy of the Enviz Content Model, and indemnifies Enviz in relation to any disputes, costs and the like in relation to third party complaints or actions brought against Enviz in relation to the Enviz Platform Model. The Customer hereby agrees to defend, indemnify and hold harmless Enviz, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from the use and/or reliance on the Enviz Platform Model by the Customer, any Enviz Platform User, or any other third party.

4. Ownership of Content

4.1 These Terms and the Services Agreement do not affect ownership of CGI Provider models. All Intellectual Property in a CGI Provider Model remains the property of its existing owner as at the date the Services Agreement is accepted.

4.2 All Enviz Platform Models, and Intellectual Property Rights pertaining thereto, are the sole exclusive property of Enviz. Enviz is under no obligation to provide data files relating to Enviz Platform Models to the Customer at any time, with such models being exclusively accessible via the Enviz Platform via technologies selected at the sole discretion of Enviz. To the extent that the Enviz Platform Model leverages 3D assets owned by a third party, those 3D assets are not extractable/downloadable from the Enviz Platform Models.

4.3 All proprietary content that is the property of Enviz 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 Enviz.

4.4 The look and feel of the Enviz Platform (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of Enviz. 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 Enviz.

5. License to use models/content

5.1 To the extent that the Customer has any Intellectual Property Rights in the Input Media, the Customer grants to Enviz 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 a Third Party Media Provider has any Intellectual Property Rights in the Input Media , it is the Customer’s responsibility to ensure that the Third Party Media Provider has provided authorisation to grant to Enviz 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.

5.3 The Customer hereby agrees to defend, indemnify and hold harmless Enviz, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from Enviz’s use of the Input Media.

6. Obligations of the Customer

6.1 The Customer shall provide, upon request by Enviz, any relevant information regarding the Location. Enviz will rely on the accuracy and completeness of this information in carrying out the Services.

6.2 The Customer:

(a) represents and warrant to Enviz that in any material provided to Enviz does not infringe any copyright, intellectual property, moral right or other legal right of any other person; and

(b) grants to Enviz 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 Enviz in any way at Enviz’s absolute discretion.

7. Direct Debit Terms

7.1 This section applies in the case that the Terms specify that the Customer will pay the Fees via Direct Debit, and outlines Enviz’s commitment to the Customer as a Direct Debit customer and the Customer’s rights and responsibilities throughout the Direct Debit process.

7.2 Enviz will provide the Customer with at least 14 days prior notice if we change any Direct Debit terms under Clause 7. We may also cancel the Direct Debit by notice to the Customer.

7.3 Enviz 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.

7.4 Unless otherwise agreed in writing, Enviz will 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;

7.5 Where the Direct Debit due date falls on a non-working day or a national public holiday, Enviz will deduct the payment amount on the next business day.

7.6 If the payment is dishonoured because there are insufficient funds in the Customer’s nominated account Enviz:

(a) will notify you the Customer try to deduct the payment on another day;

(b) may make other attempts to take the payment; and

(d) may pass on to the Customer any fees or charges incurred by Enviz as a result of the payment being dishonoured.

7.7 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

7.8 Where the Customer considers a payment has been initiated incorrectly, or there is a discrepancy in a payment amount, the Customer should contact Enviz immediately.

7.9 The Customer must advise Enviz 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, Enviz must receive a request at least 10 business days before that Direct Debit due date.

7.10 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 Enviz of a request to stop Direct Debit at least 10 business days before the Customer’s next Direct Debit due date.

7.11 The Customer may stop a particular Direct Debit payment by notifying Enviz 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.

7.12 The Customer may terminate its Direct Debit agreement at any time by notifying Enviz 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.

7.13 In accepting to pay the Fees via Direct Debit, the Customer authorises:

(a) Enviz 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 Services Agreement and these Terms, which Enviz may debit or charge the Customer through the Bulk Electronic Clearing System (BECS) until further notice in writing.

(b) Enviz to verify the details of your nominated account with your financial institution.

7.14 This Direct Debit authorisation is to remain in force in accordance with the terms described in this Clause 8.

8. Disclaimer of Warranties

Limitation of liability

8.1 To the maximum extent permitted by law, Enviz 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, Enviz Platform Models or any of its content, and in particular do not represent, warrant or guarantee that:

(a) the use of the Enviz 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 Enviz Platform Model or Services will meet the Customer’s requirements or expectations;

(c) the quality of any Enviz Platform or Services, information or other material purchased or obtained from Enviz will meet any particular requirements or expectations; or

(d) errors or defects will be corrected.

Exclusion of liability

8.2 To the maximum extent permitted by law, Enviz 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 Enviz Platform Model or the use of the Services or Enviz Platform Model by the Customer or any other person.

8.3 The liability of Enviz to the Customer arising under or in connection with the Services including:

(a) in tort (including for negligence);

(b) under statute; or

8.4 Enviz 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).

8.5 Enviz has no liability in respect of the Services after 1 year from the termination of the Services.

Remedies limited

8.6 To the maximum extent permitted by law, Enviz 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 Enviz’s sole discretion):

(a) the supply of the Services again; or

(b) a refund of the Fees.

Release

8.7 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 Enviz 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. Enviz may plead this release as a bar and complete defence to any claims or proceedings.

Force majeure

8.8 To the maximum extent permitted by law, and without limiting any other provision of these Terms, Enviz 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 Enviz, and Enviz shall be entitled to a reasonable extension of time for the performance of such obligations.

9. Dispute

9.1 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.

10. General

Interpretation

10.1 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 Enviz solely because Enviz prepared them;

(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.

Assignment

10.2 The Customer may not assign, transfer or sub-contract any rights or obligations under these Terms without Enviz’s prior written consent.

10.3 Enviz may assign, transfer or sub-contract any of its rights or obligations under these Terms at any time without notice to the Customer.

No waiver

10.4 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 Enviz to act with respect to a breach by the Customer or others does not waive Enviz’s right to act with respect to that breach or any subsequent or similar breaches.

Severability

10.5 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.

Variation

10.6 Enviz reserves the right to amend these Terms and any other policy of Enviz 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.

10.7 The Customer may only vary or amend these Terms by written agreement with Enviz.

Governing law and jurisdiction

10.8 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.