Terms and Conditions

You must read these User Terms and Conditions (“Terms and Conditions”) and all other Policies (as defined below) before purchasing a Subscription, creating an Account or otherwise using a Product. By purchasing a Subscription, creating an Account or otherwise using a Product you agree to these Terms and Conditions and all Policies.

1. DEFINITIONS & INTERPRETATION

1.1. Definitions

In these Terms and Conditions unless inconsistent with the context or subject matter:

(a)  “Account” means a Customer’s account on the Website, through which the Customer can access its Subscription/Products;

(b)  “Content” means any information in any format whatsoever that you provide to us through the Website (including your Account), including any images, Locations;

(c)  “Customer” means a person who purchases a Subscription;

(d)  “Fee” means the then current fee charged by us for the purchase of a Subscription as set out on the Website;

(e)  “Intellectual Property” means all intellectual property rights, including without limitation inventions, including any video uploaded to the 360 Library patents, copyright, including copyright in the Products and their source code, rights in circuit layouts, designs, trademarks, know-how, processes, concepts, the system or operations developed by us and any application or right to apply for registration of any of the these rights throughout the world;

(f)  “Locations” means a video, image, sound or other digital content that you upload as a “location” under your Account;

(g)  “Loss” means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including loss of profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses, expenses, or lost or stolen programs or other data (howsoever arising or caused, including, without limitation, negligence);

(h)  “our”, “us” and “we” means the Provider;

(i)  “Policy” means any policy of the Provider in place from time to time including without limitation any policy relating to privacy and refunds;

(j)  “Product” means any products that we make available on our Website, including the product known as “Situ”;

(k)  “Provider” means Figment Technology Pty Ltd ACN 611 511 329

(l)  “Services” means any services provided by us, including the sale of Subscriptions, and the provision of the Website;

(m)  “Subscription” means an ongoing subscription for a Product;

(n)  “Subscription Terms” means any terms set out on the Website that apply to your Subscription;

(o)  “Term” means the term of your Subscription, as stated on the Website at the time you purchased your Subscription;

(p)  “User” means any person who uses the Website for any purpose whatsoever;

(q)  “Website” means www.situ360.com and any other website operated by theProvider from time to time;

(r)  “you” and “your” means a Customer or a User as the case may be.

1.2. Interpretation

In these Terms and Conditions, unless inconsistent with the context or subject matter:

(a)  a reference to a person includes any other legal entity;

(b)  a reference to a legal entity includes a person;

(c)  words importing the singular number include the plural number;

(d)  words importing the plural number include the singular number;

(e)  headings are for reference purposes only and must not be used in interpretation, with the exception of where a subheading of Customer, User and/or Provider is used, in which case clauses under that subheading relate to the party referred to in the subheading;

(f)  where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;

(g)  a reference to a statute includes all regulations and subordinate legislation and amendments;

(h)  references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;

(i)  unless otherwise stated, a reference to a monetary amount is a reference to an Australian currency amount;

(j)  an obligation of two or more parties binds them jointly and each of them severally;

(k)  an obligation incurred in favour of two or more parties is enforceable by them severally;

(l)  references to time are to local time in Melbourne, Australia;

(m)  where time is to be reckoned from a day or event, the day or the day of the event must be excluded;

(n)  a reference to a business day means any day on which trading banks are open for business in Melbourne, Australia;

(o)  if any time period specified in this agreement expires on a day which is not a business day, the period shall expire at the end of the next business day;

(p)  a reference to a month means a calendar month; and

(q)  a reference to data includes metadata.

2. YOUR OBLIGATIONS

2.1.  You must use our Services in accordance with these Terms and Conditions and our Policies. You must also ensure that you comply with all clauses of these Terms and Conditions and all Policies and all terms and policies included by reference in those documents.

2.2.  Your use of our Services, and the Content you provide to us, must not:

(a)  be false, inaccurate or misleading;
(b)  be fraudulent or deceptive;
(c)  infringe any third party’s rights, including copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
(d)  violate any applicable law (including without limitation any privacy laws);
(e)  contain any viruses, trojan horses, worms, time bombs, trap doors, back doors, easter eggs, spiders, robots, screen scrapers, data aggregation tools or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of our Services;
(f)  create liability for us or cause us to lose (in whole or in part) the services of our internet service provider or other Customers or suppliers;
(g)  damage the credibility or integrity of the Provider;
(h)  breach or violate any Policy;
(i)  link directly or indirectly to or include anything that:
(i)  you do not have a right to link to or include;
(ii)  could cause us to violate any applicable law, statute, ordinance or regulation.

2.3.  You acknowledge and agree that we may remove any Content you upload in our sole discretion without any notice or liability to you.

3. YOUR ACCOUNT

3.1.  When you purchase a Subscription and/or when you use a Product you must register an Account with us. Your Account must contain:

(a)  an Account username and password;

(b)  your email address and billing information; and

(c)  any other information required by us.

3.2.  Each person who you give access to your Account must be designated as either an Account Administrator or an Account User.

3.3.  An Account User has the ability to upload, access and view Locations and certain Content, and undertake any other actions that we permit Users to undertake.

3.4.  In addition to the abilities of an Account User, an Account Administrator also has the ability to add or remove Account Users to/from your Account, as well as change your billing information and other account settings, and undertake any other actions that we permit Account Administrators to undertake.

3.5.  We may accept or reject any application to register an Account, an Account User or an Account Administrator in our discretion.

3.6.  You, your Account Users and your Account Administrators must keep your Account details (including your username and password) secure and confidential. You must not allow anyone other than a registered Account Administrator or Account User to access your Account. You are solely responsible for the actions of your Account Users and Account Administrators.

3.7.  You are responsible for any activity that occurs under or through your Account. You must notify us immediately of any actual or suspected unauthorised use of your Account or breach of your Account security.

3.8.  You represent and warrant that all information and Content provided under your Account is complete and accurate. If there is a change to any information relating to your Account, you must update your Account or notify us as soon as possible. If we suspect that any information provided by you is incomplete or inaccurate, we may suspend or terminate your Account.

3.9.  You acknowledge that your Account may not support certain file types, and as such it is your responsibility to ensure the Locations and other Content you wish to upload to your Account are in a format that is supported by our systems.

3.10.  In addition to complying with the terms set out herein, you must also comply with the Subscription Terms for the Subscription you purchase, including any terms limiting the number of Administrators and Users and Locations that you can upload to your Account.

4. SUBSCRIPTIONS AND FEES

4.1.  The Subscription plans that we offer (including the Fees payable and the time for payment of the Fees) are set out at www.situ360.com/pricing. These plans are subject to change from time to time without notice.

4.2.  We may from time to time offer discounts for certain Subscription plans in our sole discretion.

4.3.  You must pay the Fees for the Subscription you purchase at the time/s set out on the Website.

4.4.  Unless otherwise stated, our Fees are exclusive of any goods and services or other taxes payable on our Fees. You must pay such taxes at the same time as you pay our Fees.

4.5.  Unless otherwise agreed by us, all payments must be made to us by way of a credit card payment. You may be required to store your credit card details in your Account.

4.6.  Depending on the credit card you use, a processing fee may be charged.

4.7.  You expressly agree that we may charge the credit card you have provided to us the Fee at the time payment of your Subscription falls due. Depending on the Subscription you purchase, payment will fall due either monthly or annually on the anniversary of your purchase of the Subscription.

4.8.  By purchasing a Subscription, you commit to paying for that Subscription for the duration of the Term and you cannot cancel your Subscription before the expiry of the term. For example, if you purchase a Subscription for 12 months with payments to be made monthly, you must pay for that Subscription each month for 12 months.

4.9.  Unless otherwise stated on the Website, payments for Subscriptions must be made in advance.

4.10.  Upon the expiry of the Term, your Subscription will continue to automatically renew unless terminated by you. You must continue to pay for the Fees for your Subscription at the then current rate as set out on the Website.

4.11.  If you wish to terminate your Subscription following the expiry of the Term, you must give us 30 days written notice. During this notice period, we must continue to provide the Services and you must continue to pay the Fees. We are unable to provide you with any credit or refund for any unused portion of a Subscription during a month.

4.12.  You must ensure the details of the credit card you provide to us remain current at all times during the Term. A failure to do this may result in termination of your access to the Services.

4.13.  In the event you fail to pay the Fee as and when it falls due then, in addition to any other rights we may have against you, we may charge you default interest at the rate of 12% per annum accruing daily on the amount you owe to us from the due date for payment until payment is received in full.

4.14.  In the event we offer you any free trial of our Products, that trial is provided to you on the terms contained herein and any additional terms we specify of on the Website. In order to access a free trial, you may be required to provide us with your credit card details and other information. Unless otherwise notified by us, if you fail to cancel your free trial prior to its expiry or in accordance with any other deadlines set by us, your free trial may automatically become a paid monthly Subscription.

4.15.  Unfortunately given the nature of our Services, to the extent permitted by law we are unable to provide any refunds.

5. LICENCE & INTELLECTUAL PROPERTY

5.1.  Your use of the Products is by non-exclusive licence granted by the Provider strictly in accordance with these Terms and Conditions.

5.2.  You acknowledge and agree that:

(a)  you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation intellectual property rights) in the Products or the Website other than the non-exclusive rights granted in accordance with these Terms and Conditions;

(b)  the Provider owns the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you. For the avoidance of doubt, you acknowledge that the payment of the Fee entitles you to use the Product in accordance with your Subscription Terms, however it does not entitle you to ownership of the Intellectual Property in the Subscription;

(c)  you will not copy, reproduce, distribute to any third party, alter, modify, create derivative works, or publicly display any of our Intellectual Property (including without limitation our Products) without our prior written consent.

5.3.  You agree that:

(a) any intellectual property rights created, formulated or discovered by you through the use or access of our Services will be the sole and exclusive property of the Provider;

(b) you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the intellectual property rights created hereunder to the Provider.

5.4.  You acknowledge and agree that we will suffer significant Loss in the event you use our Intellectual Property in breach of this clause 5. In the event of breach of this clause 5, we will estimate the extent of the Loss suffered by us which shall be recoverable by us immediately on demand as a debt due and owing, despite any pending litigation.

5.5.  You grant to us a non-exclusive, royalty free, irrevocable, assignable licence to use any Content that you upload to your Account.

5.6.  Unless you specifically make a Location that you upload to your Account private, the Location will be deemed a Public Location. Public Locations will be made public on our Website and you acknowledge and agree that third parties may use such Public Locations for their own purposes, and you will not be entitled to any compensation or have any other rights in respect of this use whether from us or any third party.

5.7.  Without limitation to any other clause in these Terms and Conditions, you represent and warrant that:

(a)  you own or have the right to use all Content that you provide to us and you have the right to grant us the licence referred to under clause 5.6;

(b)  the use by us or any third party of a Public Location and other Content in accordance with the licence granted under clause 5.6 does not infringe the intellectual property rights of any third part

6. BREACH

6.1.  Without limiting any other remedies available to Provider at law, in equity or under these Terms and Conditions or any other Policy or otherwise, we may, in our sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate the provision of the Services to you if:

(a)  you breach these Terms and Conditions or any Policy or the terms and policies those documents incorporate by reference; or

(b)  we believe that your actions may cause legal liability for us or other Customers; or

(c)  in our sole opinion, your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of us or our Services; or

(d)  we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise in our sole discretion) have engaged in fraudulent or deceptive activity.

6.2.  In the event we terminate the provision of the Services under this clause, no refund of any Fees paid by you in respect of any period following the termination will be given.

7. NO WARRANTY AND DISCLAIMERS

7.1.  We provide our Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law.

7.2.  To the extent permitted by law, we specifically disclaim any implied warranties including in relation to title, accuracy, merchantability, fitness for a particular purpose and non-infringement. Furthermore we do not guarantee continuous, uninterrupted or secure access to our Services, or that any information provided by us is up to date and accurate.

7.3.  We do not warrant that any Content provided by you or other Customers or third parties is current, accurate and lawfully able to provided to us or used by you. Whilst we attempt to ensure that any Content uploaded to the Website does not infringe the rights of any third party and is accurate, we cannot guarantee this. By using and relying on such Information, you do so at your own risk. For example if a 360° video uploaded onto the Website is not accurate and you rely on that video in making a purchase of marketing material or publicity rights, we are not responsible in the event you suffer Loss. You must make your own independent enquiries prior to relying on any Information.

7.4.  We do not warrant or represent that our Services will result in you achieving any particular outcome.

7.5.  You warrant that you have not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.

7.6.  No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect your Content, we do not warrant and cannot guarantee the security of your Content which you transmit to us, including your credit card details. Accordingly, your Content which you transmit to us is transmitted at your own risk. We cannot guarantee the confidentiality or security of your Content, and we will not be responsible or liable for any Loss incurred in the event it is compromised. You must inform the Provider immediately if you become aware of any breaches of security or unauthorised use of your Content.

8. LIABILITY

8.1.  In no event shall the Provider or its related entities, officers, directors, employees agents, contractors or suppliers be liable for any Loss arising out of or in connection with:

(a)  any failure or performance, error, omission, interruption, defect, delay in operation or transmission of the Website, including any Loss caused by any failure or performance, error, omission, interruption, defect, delay in operation or transmission arising out of or in connection with the Services;

(b)  line or system failure or the introduction of a computer virus or other technical sabotage; or

(c)  our Services, even if we or our employees or representatives are advised of the possibility or likelihood of such Loss.

8.2.  You agree to accept sole responsibility for the legality of your actions under the laws which apply to you. You agree that the Provider and its related entities, officers, directors, employees, agents, contractors and suppliers have no responsibility for the actions of other Customers (including the legality of such actions).

8.3.  Without prejudice to clause 7 and notwithstanding any other provision of these Terms and Conditions and except to the extent permitted by law:

(a)  our total liability arising out of or in connection with these Terms and Conditions, and the liability of our suppliers, to you or any third parties in any circumstance is limited per event to the amount paid by you to us in the 6 months prior to the liability arising; and

(b)  we shall not be liable for any loss of profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses.

8.4.  The limitation and exclusion of liability under this clause 8 applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.

8.5.  Notwithstanding any other term in these Terms and Conditions, nothing in these Terms and Conditions is intended to limit or exclude any liability on the part of the Provider or its related entities, officers, directors, employees, agents, contractors or suppliers where and to the extent that any applicable law prohibits such exclusion or limitation.

9. INDEMNITY

9.1.  You agree to indemnify and hold us and our related entities, officers, directors, agents, employees, contractors and suppliers harmless from and against any actions, claims, demands, proceedings, Loss of every kind and nature, known and unknown, including legal fees (on a solicitor and own client basis) and claims made by third parties, due to or arising out of your breach of these Terms and Conditions or any Policy or the terms and policies they incorporate by reference, or your violation of any law or the rights of a third party, or otherwise in arising in connection with the Services.

9.2.  For the avoidance of doubt you agree to indemnify us in respect of any legal fees (on a solicitor and own client basis) or other fees incurred by us recovering non-payment of any Fee as and when it falls due.

10. MISCELLANEOUS

10.1.  We may update these Terms and Conditions from time to time, with the latest version to be featured on our Website. Your continued use of our Services following an update to our Terms and Conditions indicates your acceptance of the updates. It is therefore your responsibility to regularly check the Website and review the latest version of our Terms and Conditions.

10.2.  You authorise us to use any Content provided by you for any purpose we deem appropriate in our sole discretion, including for the avoidance of doubt marketing or promotional purposes.

10.3.  These Terms and Conditions are governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria, Australia, and any Courts competent to hear appears from them.

10.4.  These Terms and Conditions shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.

10.5.  If a clause of these Terms and Conditions are void or unenforceable it must be severed from these Terms and Conditions and the clauses that are not void or unenforceable are unaffected by the severance.

10.6.  You agree that these Terms and Conditions may be assigned by the Provider, in our sole discretion, to our related entities or to a third party without notice to you. You may not assign these Terms and Conditions without the Provider’s prior written consent, which must not be unreasonably withheld. You must provide the Provider with any information it requests in order for it to consider whether to give its consent.

10.7.  The Provider’s failure to act with respect to a breach by you or others does not constitute a waiver of that breach or waive our right to act with respect to that breach or subsequent or similar breaches.

10.8.  You agree that these Terms and Conditions may not be construed adversely against us solely because we prepared them.

10.9.  These Terms and Conditions and the Policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof and any oral or other written agreements between the parties that are inconsistent with these Terms and Conditions and the Policies shall be negated.

10.10.  Nothing in these Terms and Conditions establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.

10.11.  Any provision capable of surviving termination of these Terms and Conditions shall survive any termination or expiration of these Terms and Conditions.

10.12.  Should a dispute arise in connection with these Terms and Conditions which cannot be resolved by good faith negotiations between us and you, we may at our sole discretion refer the dispute to mediation or to arbitration. At all times we reserve the right to instigate legal proceedings prior to negotiation, arbitration or mediation against any person including any individual or entity (incorporated or otherwise), who in our opinion has acted in breach of these Terms and Conditions.