Standard Terms for the Services provided by DEC-UAV Pty Ltd ACN 164 625 156 t/as FlyFreely (FlyFreely/we/us) relating to the use of remotely piloted aircraft systems (RPAS). These Standard Terms form the basis of our agreement with you (Agreement)
1. Acceptance and Variation
- By creating a FlyFreely Account you acknowledge your acceptance of the terms of this Agreement.
- If you do not agree to be bound by the terms of this Agreement, you must not create a FlyFreely Account, must not use the Application and must not use the FlyFreely Services.
- We reserve the right to alter, amend or withdraw any part of this Agreement without liability upon providing notice to you. Your continued use of our Services and your FlyFreely Account will constitute acceptance of any alteration, withdrawal or amendment made.
This Agreement will commence upon your acceptance of its terms as contemplated by clause 1 and will continue until terminated in accordance with the terms of this Agreement.
3. FlyFreely Account
- In order to access our Services you will be required to create a FlyFreely Account. To create a FlyFreely Account you may be required to provide us with certain personal information, including but not limited to your:
- name and address;
- date of birth; and
- credit card or banking information.
FlyFreely will comply with the provisions of the Privacy Act 1988 (Cth) with respect to the collection, storage, access and use of all personal information.
- Upon creation of a FlyFreely Account we will provide you, including any Authorised User, access to the Application and our Services on a non-exclusive and non-transferable basis, provided that you comply with all of your obligations under this Agreement.
- By creating a FlyFreely account and utilising the Application and our Services you, and any Authorised User, represent and warrant:
- you will comply with all reasonable and lawful directions that FlyFreely may give from time to time with respect to your use of the Application and the FlyFreely Services;
- you will only use the Application for the purposes for which it is made available by FlyFreely and in accordance with the terms of this Agreement and you will not grant or purport to grant, or convey, any right to any third party, to use or commercialise the Application or our Services;
- you will cooperate with FlyFreely in any remediation of any security, unauthorized use or misuse of the Application or our Services and will promptly report to FlyFreely all such matters of which you become aware.
- By creating a FlyFreely Account and utilising our Application and Services you represent and warrant that you will not:
- allow or engage to access your FlyFreely Account or use the Application or our Services (apart from an Authorised User) without first obtaining the consent of FlyFreely, which may be withheld in our absolute discretion;
- interfere or disrupt the operation of the Application or the delivery of our Services or attempt to do the same;
- whether directly or indirectly modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to our Application or the Services.
- FlyFreely does not make any representation or warranty regarding the availability of access to your Account, or that access to your Account will be fault free or uninterrupted.
3.2 Authorised Users
- . Such Authorised Users will be required to:
- create a User Profile which may include providing the information referred to in clause 1(b);
- otherwise comply with the terms of this Agreement.
- FlyFreely reserves the right to refuse to create a User Profile for any designated person or otherwise permit a person to be an Authorised User and to refrain from granting access to the Application and Services to any such person at its sole discretion.
- By designating an Authorised User to have access to your Account you hereby guarantee and assume all of the obligations and warranties of that Authorised User under this Agreement.
3.3 Account Termination
- FlyFreely reserves the right to terminate or suspend your Account and access to the Services at any time without notice in the event that:
- you or an Authorised User breaches any term of this Agreement;
- you or an Authorised User breaches any applicable law, regulation, guideline or code;
- you or an Authorised User fails to comply with any reasonable and lawful direction, instruction or training given by FlyFreely regarding the use of your Account or the Services; or
- you fail to pay any Fee as contemplated in clause 1 of this Agreement.
- You may request that the access of any Authorised User to your Account by way of their User Profile be terminated at any time upon notice in writing to FlyFreely.
4. Fees and Services
- In consideration of FlyFreely providing access to the Application and the Services you must pay to FlyFreely the Fees in the method and manner as directed by FlyFreely from time to time.
- You acknowledge and accept that you will be responsible for payment of all Fees, expenses or other charges that may be incurred by an Authorised User, including but not limited to those associated with providing an Authorised User access to your Account and any Services requested by an Authorised User.
- You are responsible for any costs and reasonable out-of-pocket expenses, including but not limited to third party licence fees, insurance or registration fees, which are necessary in order for you to register an Account, use the Application or use the Services.
- FlyFreely will provide a tax invoice for the Fees that you are required to pay in accordance with the terms of this Agreement.
- If any sum payable under this Agreement is not paid by the due date then (without prejudice to our other rights and remedies) FlyFreely reserves the right to suspend any or all of the provision of our Services and your access to your Account and the Application and charge interest on the overdue sum from the due date to the date of actual payment (both before and after any judgment) at the lesser rate of 1.5% per month, or the maximum rate permitted by law.
- In addition to interest, you agree that you will also be liable for any and all costs we incur in collection of any overdue amounts and accrued interest, including legal fees (on a solicitor and own client basis) and court costs, which you must pay upon demand.
- Any dispute regarding invoices must be dealt with under the Disputes Clause. Notwithstanding a fee dispute, you agree to pay the undisputed portion of such invoices promptly to us.
4.2 Provision of Services
- FlyFreely will provide the Services in accordance with the terms of this Agreement.
- Prior to providing certain Services, including but not limited to flight approvals forming part of the Services, FlyFreely may require that you, and any Authorised User, undertake or obtain:
- Pilot induction training;
- Pilot assessment;
- Night Visual Flight Rules training;
- Remote Pilot License training;
- Insurance relating to any remotely piloted air craft or public liability;
- Craft registration; and
- Any other certification, training, registration, license, insurance or otherwise as directed by FlyFreely.
- Failure to comply with the terms of this Agreement and, in particular, this clause 2 may result in the Application, your Account or the Services being unavailable to you or an Authorised User, or may result in the termination of your Account in accordance with clause 3.3.
4.3 Nature of Services
- FlyFreely will endeavour to ensure the Services are available to you upon request. However, you acknowledge that the provision of the Services is on an “as available” basis and that FlyFreely makes no representations or warranties regarding the availability of the Services or that the provision of the Services will be uninterrupted or fault free.
- FlyFreely makes no representation or warranty that a flight approval requested through the Application or as part of the Services will be granted, or granted within a specified time, and you acknowledge that all approvals and Services are delivered at the sole discretion of FlyFreely.
4.4 New Services and variations
From time to time FlyFreely may offer new services to you. Upon being made available by FlyFreely such new services will be considered Services for the purposes of this Agreement and will be governed by and in accordance with the terms of this Agreement.
4.5 Support services
- FlyFreely will use its best endeavours to provide reasonable support services in relation to the access to your Account, the Application and the Services during usual business hours in South-East Queensland (UTC+10:00 Brisbane).
- Where it is anticipated support services will be required further to those ordinarily required and as determined at the discretion of FlyFreely, additional fees may be charged for such support services. FlyFreely
5.1 Termination for breach
Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other Party, in the event of:
- any material breach of this Agreement (including, without limitation, non-payment of fees for 14 days from the date of which we have notified you that payment is outstanding) by the other Party which is not remedied within 7 days after the service on the Party in default of a written notice specifying the nature of the breach and requiring that the same be remedied; or
- the other Party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt.
- In the event that FlyFreely terminates or suspends your Account or access to the Application or Services in the manner contemplated by clause 3(a) or this clause 5.1, to the fullest extent permitted by law FlyFreely will not be liable for any loss or damage of whatever nature and howsoever suffered or incurred by you or any Authorised User.
- To the fullest extent permitted by law if FlyFreely terminates your account in the manner contemplated by clause 3(a) or this clause 5.1, it will not be liable for or required to make any refund of any Fees received, and you hereby acknowledge and accept that you forfeit your right to any such refund of any amount of Fees, paid to FlyFreely for any Services.
5.2 Termination without cause
- Either Party may terminate this Agreement for any reason upon written notice to the other Party.
- If you request that this Agreement be terminated in accordance with clause 2 and you are not otherwise in breach of any of your obligations under this Agreement, FlyFreely will refund any Fees that have been paid by you for Services not yet delivered, less any reasonable administrative cost incurred by FlyFreely in complying with your requests.
5.3 Effect of termination
- Upon termination of the Agreement for any reason whatsoever:
- you must pay all outstanding Fees and any other expenses due to us under the Agreement;
- you must cease using, and must that all Authorised Users cease using, any Account, the Application and Services;
- and certify such destruction in writing to us;
- you must return to us any of our Intellectual Property that is in your possession or under your control; and
- any accrued rights or liabilities of either Party or any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination shall not be affected.
6. Your responsibilities
- You are responsible for complying with your obligations and procuring that any Authorised User complies with its obligations under this Agreement.
- You must at no charge provide:
- access to an authorised representative of yours, any other employees, and any relevant consultants and ensure that such personnel co- operate fully with us; and
- any materials that we reasonably require for the purposes of providing you with our Services.
- You must not, and must ensure that your Authorised Users do no not:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the Application or our Services available to any third party;
- copy, modify or make derivative works based upon the Application or our Services;
- “frame” or “mirror” any content contained in, or accessible from, the Application on any other website, server, wireless or internet based device other than on your own intranet/web browser or otherwise for your own internal business purposes
- You represent, warrant and undertake that:
- we are authorised to use any materials that you provide to us for the purpose of delivering the Services and providing access to your Account and the Application;
- you will comply with all laws, regulations, guidelines and codes in your use of the Application and the Services, and will procure that any Authorised Users also do so;
- you have the capacity and authority to enter into and to perform your obligations under the Agreement.
- FlyFreely represents, warrants and undertakes that:
- the Services will be provided in accordance with the Agreement and applicable law; and
- we own or are correctly licensed for all Intellectual Property Rights used in the provision of the Services; and
- the Services will be delivered with due care and skill.
8. Proprietary rights
- Each Party shall retain all right, title and interest in and to its pre-existing property. Each Party grants a limited licence to use, copy, store, transmit and display its pre-existing property to the extent necessary to discharge such Party’s obligations pursuant to this Agreement.
- For the avoidance of doubt, FlyFreely shall retain all right, title and interest in and to its pre-existing Intellectual Property Rights in any content, documentation, materials or otherwise, delivered or made available as part of or incidental to the provision of the Services. You are not entitled, and nothing in this Agreement shall be construed as implying a licence permitting you, to reproduce or otherwise deal with the Intellectual Property Rights of FlyFreely, except as contemplated by this Agreement, without the express prior written consent of FlyFreely.
- Where you have reported fixes or suggestions of improvements to the Application or Services we shall own all rights in them without further liability or compensation to you and you hereby assign them to us.
- For the avoidance of doubt nothing in this Agreement shall prohibit us from using our pre-existing property to provide services and deliverables to third parties, even if such services and/or deliverables are the same or substantially the same as those provided to you under the Agreement.
- Nothing in this Agreement shall be construed as creating an exclusive relationship between the Parties. Subject to obligations of confidentiality, each Party may reuse knowledge or expertise gained by that Party during the course of provision or receipt of the Services.
For the purposes of this clause, unless the context otherwise requires:
Confidential Information means information that is by its nature confidential and:
- is designated by a Party as confidential;
- a Party knows or ought to know is confidential,
but does not include information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
9.2 Recipient must keep Confidential Information confidential
Each Party must:
- keep confidential all Confidential Information; and
- only use any Confidential Information for the purpose of providing or receiving (as the case may be) the services.
9.3 Disclosure exceptions
The obligations in clause 9.2 do not apply:
- to the extent necessary to enable a Party to make any disclosure required by law;
- to the extent necessary to enable a Party to perform its obligations under this Agreement;
- to any disclosure agreed in writing between the parties; or
- in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
10. Use details
You agree that we may publish your details on our website or other advertising medium representing you as our client for the purposes of advancing our own publicity and marketing provided we comply with the confidentiality obligations contained in condition 9.
11. Limitation of liability
- Unless otherwise required by law, our liability for any breach of this Agreement or any services we have provided in relation to it, in contract, tort or equity is limited to the amount paid by you to us in the preceding 12 months of this Agreement for Services.
- To the maximum extent permitted by law, we will not be liable for any loss of profit, loss of goodwill, loss of opportunity and/or any special, punitive, indirect or consequential loss or damage incurred by you or any other person whether directly or indirectly related to our engagement under this Agreement.
To the maximum extent permitted by law, we will not be liable for any loss of profit, loss of goodwill, loss of opportunity or any special, punitive, indirect or consequential loss or damage incurred by you or any other person whether directly or indirectly arising from or in relation to any negligent act or omission by us occurring in the course of our engagement under this Agreement.
- We are not liable for any loss or damage caused to you by reason of any delay, lack of supply, industrial action, fire, riot, war, embargo, civil commotion, act of God or any other event which is beyond our control.
- Nothing in the Agreement shall exclude or in any way limit a Party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability including, if applicable, gross negligence or wilful misconduct to the extent the same may not be excluded or limited as a matter of law.
You agree to indemnify us and keep us indemnified against any claim, loss, damage, liability, cost or expense that may be incurred by us arising from or in connection with:
- any breach or default by you of this Agreement;
- a negligent act or omission by you or by a Party you are responsible for, including but not limited to an Authorised User;
- your failure or the failure of an Authorised User to comply with any law, regulation, guideline or code ; and/or
- your failure or the failure of an Authorised User to comply with and observe any reasonable and lawful direction, instruction or training provided by FlyFreely.
Any notice given under or in connection with this Agreement;
- must be in legible writing and in English;
- must be addressed to the Party’s contact address or address as otherwise notified by a Party to the other Party from time to time;
- must be:
- delivered to that Party’s address;
- transmitted by facsimile to that Party’s address; or
- sent by email to that Party’s email address; and
- will be deemed to be received by the addressee:
- if delivered by hand, at the time of delivery;
- if sent by post, , the first Business Day being the day of posting;
- if sent by facsimile, on the Business Day on which the notice is received by the recipient’s facsimile receiving facility, and a correct and complete transmission report is received; and
- if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
- In the event of any dispute between us both Parties shall immediately, (and where the dispute concerns invoices submitted by us, not later than the due date of the payment of invoice), notify the other of, and provide details about, such dispute.
- Each Party agrees to meet with the other as soon as practicable either in person, videoconference, or by telephone to resolve the dispute. However in the event that the Parties do not reach resolution, then either Party will be entitled to escalate the dispute to senior level management in an attempt to resolve the dispute within 15 business days.
15. General matters
- A Party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.
- You hereby consent to FlyFreely assigning, novating or otherwise transferring its rights and obligations under this Agreement at its discretion. For the avoidance of doubt this includes the transfer of Confidential Information as defined in clause 9.
Unless this Agreement expressly states otherwise, a Party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.
This engagement is governed by the law in force in the State of Queensland and each of the parties submits to the non-exclusive jurisdiction of the courts of Queensland
Any provision of these this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which shall remain in force
15.5 Force majeure
If either Party is prevented from, or delayed in, performing any of its obligations under the Agreement (other than an obligation to make payment of monies already outstanding) by a Force Majeure event, then that Party shall be excused from performance of, and not be liable for any delay or failure to perform under the Agreement for so long as the Force Majeure event continues and to the extent that Party is so delayed or prevented. If such non-performance or delay continues for longer than forty-five (45) consecutive days, either Party shall be able to terminate the Agreement with immediate effect.
- Unless otherwise expressly stated, all amounts stated to be payable under this Agreement are exclusive of GST.
- If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST. That amount is:
- equal to the value of the supply calculated in accordance with the A New Tax System (Goods and services Tax) Act 1999 (Cth) multiplied by the prevailing GST rate; and
- payable at the same time that we are required to pay for the related supply subject to the provision of a tax invoice to you.
Account means a FlyFreely Account established in accordance with clause 3.
Agreement means these Standard Terms as well as any document incorporated by way of reference.
Application means the FlyFreely software application as made available by FlyFreely for the purposes of delivering the Services from time to time.
Authorised User means any person that is authorised to access and use the FlyFreely Account in accordance with clause 3.
Fee means the fee for the services provided by FlyFreely as published in the Schedule of Rates and as updated from time to time.
Intellectual Property Rights means all intellectual property rights, including the following rights:
- copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
whether or not such rights are registered or capable of being registered.
Services means all of the services described in the Schedule of Rates as well as any further services that may be offered by FlyFreely from time to time.
Schedule of Rates means the FlyFreely Schedule of Rates published on the FlyFreely Website or available upon request and as updated from time to time.
User Profile means a profile created by an Authorised User providing them access to the Application.