These terms cover scanning, deliverables and twin hosting. Hiring our Matterport kit instead? Your hire is on our Equipment Hire Terms.
In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer). When we say we, us, or our, we mean Tuyo Capital Pty Ltd (ABN 18 697 376 766) trading as Sydney Scan Co. We and you are each a Party to these Terms, and together, the Parties.
These Terms form our contract with you, and set out our obligations as a service provider and your obligations as a customer. You cannot use our Services unless you agree to these Terms.
Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.
For questions about these Terms, or to get in touch with us, please email: projects@sydneyscan.co.
Please read these Terms carefully before you accept. We draw your attention to:
- our privacy policy (on our website) which sets out how we will handle your personal information;
- the hosting of your Digital Twin renews automatically every 12 months, and you will be charged the Hosting Fee for each renewal unless you cancel the renewal in accordance with clause 6 (Hosting); and
- clause 11 (Liability) which sets out exclusions and limitations to our liability under these Terms.
These Terms do not intend to limit your rights and remedies at Law, including any of your Consumer Law Rights.
01Engagement and Term
These Terms apply from the Commencement Date until the date that is the earlier of:
the date set out in the Proposal;
the date the Services are completed (as reasonably determined by us); or
the date on which these Terms are terminated,
(Term)
02Services & Deliverables
In consideration of your payment of the Price, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
If these Terms express a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.
The Services are reality-capture services. They do not include cadastral, boundary or legal land surveying, and nothing we provide is survey, legal, engineering, architectural or design advice. You must engage a suitably licensed professional for those services.
All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
We will capture the Site using the equipment and methods described in the Proposal. The Deliverables are produced to the Stated Tolerance only. The Stated Tolerance is an estimate of capture accuracy under normal conditions. It is not a guarantee of survey-grade or as-built accuracy, and it may vary with Site conditions, including reflective or obstructed surfaces, lighting, and distance from the capture point.
The Deliverables are provided for the purpose described in the Proposal. We are not responsible for use of the Deliverables by you or any third party for any other purpose, or in a way that does not account for the Stated Tolerance. Before you (or anyone else) rely on the Deliverables or Digital Twin for design, fabrication, procurement or construction, you must verify all critical dimensions and tolerances.
The Deliverables reflect the Site as at the date of capture only.
03Cancelling & Rescheduling
If you cancel or reschedule a Site Visit with less than 48 hours’ notice, or we cannot capture the Site as scheduled because access is not provided, the Site is unsafe or you have not met your obligations under clause 4, we may charge the cancellation fee set out in the Proposal (or, if none, our reasonable costs incurred).
If weather or other conditions outside either Party’s control make capture impractical, we will reschedule the Site Visit at no additional charge.
04Your Obligations
You agree to (and to the extent applicable, ensure that your Personnel agree to):
comply with these Terms, all applicable Laws, and our reasonable requests;
provide us (and our Personnel) with access to your premises (and its facilities) and any other premises as is reasonably necessary for us to provide the Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties and ensure you have the permission of the owner and occupier of the Site for us to attend and capture it, and tell us of any hazards in advance;
provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services; and
except as permitted by clause 7.3, not (or not attempt to) disclose, or provide access to, the Deliverables or the Digital Twin outside your organisation and project team (including consultants and contractors engaged on the Site) without our prior written consent.
You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 4.
05Price and Payment
In consideration for us providing the Services, you agree to pay all amounts due under these Terms in accordance with the Payment Terms.
If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at Law):
after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
06Hosting
If the Proposal includes hosting, we will host the Digital Twin on the Platform for 12 months from delivery, and then for each further 12 months, for the Hosting Fee.
We will tell you the Hosting Fee for the next 12 months at least 30 days before it is due. The hosting renews automatically unless you tell us at least 14 days before the renewal date that you do not want it to.
If you do not pay the Hosting Fee when due, we may suspend or remove the Digital Twin after giving you 14 days’ notice. Before we remove it, you may ask us to export it.
The Platform is run by a third party. You must follow its terms, and we are not responsible for its outages or changes, but this does not limit your Consumer Law Rights.
This clause continues after the Term ends for as long as the hosting continues.
07Intellectual Property
As between the Parties:
we own all Intellectual Property Rights in Our Materials;
you own all Intellectual Property Rights in Your Materials; and
nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
On payment in full of the Price, we grant you a perpetual, irrevocable, non-exclusive, royalty-free, worldwide licence to use Our Materials that we provide to you and the New Materials (including the Deliverables) for your business purposes relating to the Site. You may sublicense this licence to your consultants, contractors and successors in title to the Site, solely for those purposes.
You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing our obligations or exercising our rights under these Terms.
If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
This clause 7 will survive termination or expiry of these Terms.
08Confidential Information
Each Receiving Party agrees:
not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 8.1(c));
to protect the Confidential Information of the Disclosing Party from any loss, damage or unauthorised disclosure;
to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with these Terms, or its third party service providers for the purposes of assisting it to perform its obligations under these Terms, provided those third parties keep the Confidential Information confidential in accordance with this clause 8; and
to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under these Terms.
The obligations in clause 8.1 do not apply to Confidential Information that:
is required to be disclosed for the Parties to comply with their obligations under these Terms;
is authorised in writing to be disclosed by the Disclosing Party;
is in the public domain or is no longer confidential, except as a result of a breach of these Terms or other duty of confidence; or
must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 8. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 8.
This clause 8 will survive the termination or expiry of these Terms.
09Privacy
If you are required to provide us with Personal Information so that we can provide the Services, you agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth), and any other applicable Laws relating to privacy (Privacy Laws).
Without limiting this clause 9, you must ensure that:
you have collected, used, stored and otherwise dealt with Personal Information in accordance with all Privacy Laws; and
we are capable of collecting, using, storing and otherwise dealing with Personal Information, in the manner contemplated by these Terms, without infringing any third party rights or violating any Privacy Laws.
Without limiting this clause 9, you agree to only disclose Personal Information to us if:
you are authorised by the Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by these Terms; and
you have informed the individual to whom the Personal Information relates, that their Personal Information will be disclosed to us.
We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms, and in accordance with any applicable Laws.
10Australian Consumer Law
Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in these Terms excludes those Consumer Law Rights.
Subject to your Consumer Law Rights, we provide all material, work and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in these Terms.
This clause 10 will survive the termination or expiry of these Terms.
11Liability
Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
neither Party will be liable for Consequential Loss;
a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss;
(where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
This clause 11 will survive the termination or expiry of these Terms.
12Termination
These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
Upon expiry or termination of these Terms:
we will immediately cease providing the Services;
without limiting your Consumer Law Rights, any payments made by you to us for Services already performed are not refundable, but if we terminate these Terms other than under clause 12.1, we will refund the part of the Hosting Fee paid for any period after termination;
you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
where these Terms are terminated by us pursuant to clause 12.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 8.
Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause 12 will survive the termination or expiry of these Terms.
13General
Amendment: Subject to clause 2.4, these Terms may only be amended by written instrument executed by the Parties.
Assignment: Subject to clauses 13.3 and 13.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
Governing Law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Publicity: Despite clause 8, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.
Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
14Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Proposal, and:
Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date that is the earlier of:
the date that you accept the Proposal;
the date that you ask us to begin supplying the Services; or
the date that you make part or full payment of the Price.
Confidential Information means information which:
is disclosed to the Receiving Party in connection with these Terms at any time;
relates to the Disclosing Party’s business, assets or affairs; or
relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price and any other amounts payable under these Terms will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 10.1.
Deliverables means any materials, goods, items or other deliverables forming part of the Services, as particularised in the Proposal.
Digital Twin means the hosted 3D model of the Site produced from the data we collect at the Site in performing the Services and made available on the Platform.
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Hosting Fee means the fee for hosting the Digital Twin set out in the Proposal, as notified to you under clause 6.2.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of the Services (including the Deliverables), whether before or after the date of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.
Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.
Payment Terms means the timings for payment of the Price and any other amounts payable under these Terms, as set out in the Proposal.
Personal Information means information or an opinion, whether true or not and whether recorded in a material form or not, about an individual who is identified or reasonably identifiable.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Platform means the third-party platform (currently Matterport) on which we host the Digital Twin.
Price means the price set out in the Proposal, as adjusted in accordance with these Terms.
Proposal means the document to which these Terms are attached or incorporated.
Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.
Services means the services set out in the Proposal as adjusted in accordance with these Terms.
Site means the premises or location described in the Proposal.
Site Visit means a scheduled attendance at the Site to capture it.
Stated Tolerance means the capture tolerance set out in the Proposal or, if the Proposal does not state one, approximately ±20mm at 10 metres.
Terms means these terms and conditions and any documents attached to, or referred to in, each of them.
Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to these Terms) and/or developed by or on behalf of you or your Personnel independently of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.