The Client and AUAV agree to the following:
1. DEFINITIONS
Booking means communications from the client requesting AUAV to provide a Service.
Client means a customer or any person / agent acting on behalf of or with the authority of the customer that engages or hires AUAV Equipment or Services.
Client Materials means all text, images, settings and other materials provided or introduced by the Client for use in connection with the Services.
Confidential Information means all trade secrets and knowhow, financial information and other commercially valuable information of whatever description and in whatever form, including, without limitation, information that; is by its nature confidential, is designated by a Party as confidential, the recipient knows or ought to know is confidential, or is “personal information”, that is, information or an opinion, whether true or not and whether recorded in a material form, about a natural person whose identity is apparent or can be readily ascertained from the information or opinion.
Fees means the fees and any other charges payable by the Client for the provision of the Services.
Intellectual Property Rights means copyright, trademark, design and patents whether registered or not and including any rights to register such intellectual property.
Services means any services to be provided to the Client by AUAV.
Party means either AUAV or the Client.
2. Acceptance and Entire Agreement
2.1. These terms and conditions are to be read in conjunction with any written or electronic communications to form the entire agreement between AUAV and the Client.
2.2. This Agreement commences on the date the Client makes a Booking with AUAV or its booking agents.
2.3. This Agreement contains the entire agreement between AUAV and the Client and supersedes all earlier conduct and prior agreements and understandings between the Parties.
2.4. No variation of this Agreement will be effective unless in writing and signed by AUAV and the Client.
2.5. All Bookings accepted by AUAV are subject to suitable weather conditions. The Client acknowledges and agrees that any deposits paid by the Client are not refundable should a Booking be cancelled or postponed.
3. Fees
3.1. In consideration of AUAV providing the Services, the Client will pay the fee in the amounts and timetable set out in communications between AUAV and the Client.
3.2. The Client shall reimburse AUAV the amount of all expenses reasonably and properly incurred by it in providing the Services which are set out in communications between AUAV and the Client as expenses.
3.3. Where an amount for expenses is not set out then AUAV acknowledges and agrees that it must obtain the Client’s written agreement to incur any expenses before they are incurred.
3.4. AUAV may withhold the Client’s access to the Services or outcomes of the Services until due Fees are paid.
3.5. The Client is liable to pay any GST payable on a taxable supply made by AUAV and the Client shall pay the GST at the same time as it pays the Fees.
3.6. Without prejudice to the rights, powers and remedies of AUAV otherwise under this Agreement, the Client will on demand pay to AUAV interest at the rate of CPI + 10% per annum on all Fees and other moneys payable by the Client to AUAV under this AUAV Terms and Conditions but unpaid for more than 14 days from the due date, computed on a daily basis on the amount remaining owing from and including the due date until the date of payment.
4. AUAV Obligations
4.1. AUAV may sub-contract for the performance of this Agreement or any part of this Agreement or for the provision of the Services or any part of the Services and the Deliverables.
4.2. AUAV shall use its best endeavours to promote the interests and welfare of the Client whilst it provides the Services for the duration of this Agreement.
5. Client obligations
5.1. The Client agrees to provide reasonable assistance and access to sites, staff, subject matter experts, and resources as are reasonably necessary for AUAV to provide the Services.
6. Client Materials
6.1. The Client will deliver or make available to AUAV the Client Materials in a timely manner to ensure that AUAV has the necessary time to meet any agreed time schedules.
6.2. The Client will comply with all reasonable directions by AUAV in relation to the format requirements of the Client Materials.
6.3. The Client grants AUAV a royalty free licence to use and reproduce the Customer Materials for the purpose of providing the Services contemplated by this Agreement.
6.4. The Client warrants that the use of the Client Materials by AUAV in accordance with this Agreement will not infringe the intellectual property rights of any third party.
6.5. The Client indemnifies AUAV and its employees against any damage, loss, cost, and expense (including legal costs and expenses) of whatsoever nature or description arising from the infringement of intellectual property rights of any third party contained in the Client Materials.
6.6. AUAV reserves the right not to use any Client Materials which AUAV (acting reasonably) deems to be inappropriate or offensive or otherwise in breach of any laws or regulations.
6.7. AUAV is not obliged to retain back up copies of the Client Materials and to the extent permitted by law AUAV will not be liable (whether in contract, tort, negligence, statute or loss) for any of the Client Materials.
7. Additional Services and changes to the Booking
7.1. If the Client requests a change to the booking or requires additional Services to be performed by AUAV, then:
- a) the changes to the booking will incur Fees including but not limited any unrecoverable costs incurred by AUAV;
- b) the additional Services will incur additional Fees calculated by reference to AUAV’s charge rates; and
- c) at its sole discretion, AUAV may issue an invoice for the additional Fees at any time, including on a monthly basis, whether or not the changes are agreed to in writing or not pursuant to clause 7.1(b).
8. Intellectual Property
8.1. All Intellectual Property Rights in anything produced by AUAV in carrying out the Services will be retained by AUAV.
8.2. Upon full payment of the Fees by the Client, AUAV will grant a perpetual, royalty free, non exclusive and non transferable licence to the Client to use the AUAV Intellectual Property created from the Services performed under this agreement. The Client may use the licence for internal purposes or purposes communicated and agreed to by AUAV in writing and at the time of booking AUAV Services.
8.3. The Client grants AUAV a perpetual, royalty free, non exclusive and non transferable licence to use Client’s trademark, business name and other mark or logo, media containing AUAV footage for marketing and promotional activities to indicate the Client as a current or past client of AUAV. Unless otherwise advised, AUAV is free to make mention of the work for its marketing purposes so long as doing so does not disclose any Confidential Information.
9. Default and Termination
9.1. a Party is in default if:
- a) the Party fails to comply with its obligations under this Agreement within 7 days (or such further time as may be agreed) after receiving a notice specifying the default and requiring it to be remedied; or
- b) the Party shall go into liquidation or become bankrupt or enter into any composition, arrangement with or assignment for, the benefit of creditors.
9.2. Either party may terminate this Agreement immediately by notice in writing if the other party
- a) is in default; or
- b) breaches the Agreement and fails to correct such breach within 14 days of notice.
9.3. Upon termination of this Agreement for whatever reason:
- a) all Fees for Services performed by AUAV up to and including the date of termination shall, whether or not due for payment, immediately become payable by the Client; and
- b) each Party must return to the other Party all Confidential Information owned by the other Party.
9.4. If the Client is in default, the Client must pay to or reimburse AUAV the amount of all costs and expenses (including legal costs and expenses) arising as a result of enforcing any right under this Agreement.
10. Force Majeure
10.1. The Client and AUAV hereby acknowledge that in the event of force majeure or other unforseen events beyond the reasonable control of either party intervening to the extent this Agreement is frustrated, then this Agreement shall be suspended and will resume either in its current form or in a revised form acceptable to both parties after circumstances return to a state sufficient for both parties to consider carrying on.
11. Confidentiality
11.1. Subject to clause 8.2, a Party must not disclose, or use for a purpose other than contemplated by this Agreement, any Confidential Information.
11.2. A Party may disclose any Confidential Information:
- a) to the other Parties to this Agreement;
- b) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;
- c) if required under any law or under a procedure for discovery in any proceedings;
- d) to a Party’s financiers, consultants or legal advisers, provided that the financiers, consultants or legal advisers (as the case may be) have given undertakings to maintain the confidentiality of the confidential information; or
- e) with the prior written consent of the other Parties.
11.3. The provisions of this clause shall not merge upon completion of this Agreement.
12. Limitation of Liability
12.1. The Client acknowledges and warrants that it:
- a) is satisfied as to the suitability and fitness for purpose of AUAV and the Services and accepts, and assumes any risk associated with the provision of and its use of the Services; and
- b) accepts liability for and assumes the risks, costs, fees, losses, expenses and damages it may suffer or incur arising out of or in connection with the provision of or its use of the Services.
12.2. To the extent permitted by law, all conditions or warranties which would otherwise be implied in this Agreement, are hereby excluded.
12.3. AUAV shall not be under any liability to the Client in respect of any loss or damage (including consequential loss and damage) howsoever caused which may be suffered or incurred or which may arise directly or indirectly in respect of the failure or omission on the part of AUAV to provide the Services.
12.4. AUAV’s liability to the Client under this Agreement, to the extent such liability is not capable of being lawfully excluded pursuant to this Agreement, is limited to:
- a) where the liability arises from defective services provided by AUAV, or a failure to supply services in accordance with this Agreement, the rectification or resupply of those goods or services; and
- b) in all other cases, the Fees paid by the Client under this Agreement.
12.5. AUAV is not liable to the Client for any indirect, consequential, special or economic loss or damage (including without limitation loss of data, loss of time, loss of profits, loss of revenue, failure to complete projects due to poor weather, loss of contracts, loss of goodwill, third party claim or punitive damages whether in contract, tort (including negligence), statute or otherwise arising in any way from the provision of services or use of the Services provided by AUAV under this Agreement or otherwise resulting from any act or omission of AUAV.
12.6. The Client warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of AUAV that has not been stated expressly in this Agreement.
12.7. The aggregate of AUAV’s liability to the Client for breach of any term or warranty under this agreement will be limited to any fees pre-paid by the Client in respect to this agreement.
12.8. The provisions of this clause shall not merge upon completion of this Agreement.
13. Notices
13.1. Any notice, report or other communication which must be given, served or made under or in connection with this Agreement:
- a) must be in writing in order to be valid;
- b) is sufficient if executed by the Party giving, serving or making the notice or on its behalf by any attorney, director or secretary, or solicitor of such Party;
- c) will be deemed to have been duly served, given or made in relation to a person if it is hand delivered or posted by prepaid post to the address, or sent by facsimile to the facsimile number, of that person; and
- d) will be deemed to be served, given or made:
– in the case of prepaid post on the third day after the date of posting;
– in the case of facsimile on receipt of a transmission report confirming successful transmission; and
– (in the case of delivery by hand) on delivery.
13.2. The details of each Party for the purposes of giving notice are as set out in the Proposal.
14. General
14.1. If the whole or any part of a provision of this Agreement is void, unenforceable or illegal it is severed and the remainder of this agreement has full force and effect.
14.2. This Agreement may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument.
14.3. Each Party shall do all things and execute all further documents as are necessary to give full effect to this Agreement.
14.4. No failure to exercise nor any delay in exercising any right, power or remedy by AUAV operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right power or remedy by AUAV. A waiver is not valid or binding on AUAV unless made in writing.
14.5. This Agreement is governed by the Laws of Victoria, Australia