1 Performance of the Services
1.1 Swarm UAV will perform the Services as contractor for the Client in accordance with the Client’s brief as agreed under clause 2 and all applicable laws.
1.2 Swarm UAV will provide the Client with the Deliverables specified in the Particulars and Client’s brief as agreed under clause 2.
2 Client brief
2.1 The Client will provide Swarm UAV with a brief detailing the Services and Deliverables required as well as any other information, including but not limited to details of site access, property position and contact details.
2.2 The Client will provide the brief to Swarm UAV as soon as possible and no less than 1 week prior to the Date(s) for Services.
2.3 Swarm UAV relies on the Client to provide accurate and complete information. Any failure to provide accurate and complete information affecting the delivery of Services by Swarm UAV may result in a charge being made by Swarm UAV to cover time, associated travel costs and any other costs reasonably incurred by Swarm UAV such costs not exceeding the Fee.
2.4 The Client acknowledges Swarm UAV may require changes to the brief where these are necessary to enable Swarm UAV to provide the Services in accordance with the terms of its aerial licence issued by CASA in accordance with relevant laws, such as workplace health and safety laws. The Client agrees to accommodate these changes.
2.5 Where the Services are to be provided on a building or premises not owned or controlled by Swarm UAV, the Client will provide Swarm UAV with an orientation to the site and procedures relevant to the Services and Deliverables prior to the Date(s) for Services.
3 Aerial approvals
3.1 Where CASA aerial approval is required, Swarm UAV will prepare and submit the application to CASA for an agreed fee within an agreed timeframe on receipt of the Fee for Aerial Approval from the Client.
3.2 Timeframes for CASA aerial application approval vary significantly and the Client acknowledges this may affect lead times. The Client must allow sufficient lead times for the CASA aerial approval process and Swarm UAV cannot be held responsible for delay caused by this process.
3.3 Swarm UAV will request details necessary to obtain such approvals from the Client and the Client must provide these to Swarm UAV as soon as possible. Swarm UAV relies on the accuracy of any information provided by or on behalf of the Client and cannot be held responsible for consequences of the Client providing inaccurate or incomplete information.
4 Other permissions
4.1 The Client is responsible for obtaining any other permissions/approvals necessary to enable Swarm UAV to provide the Services and provide the Deliverables under this agreement.
4.2 Where the Client fails to obtain the permission, it will be liable for cancellation fees as set out below.
5 Model and property release forms
5.1 Unless specifically agreed in writing prior to the commencement of photography and cinematography services under this agreement, Swarm UAV will provide the Deliverables without obtaining model or property release forms.
5.2 It is solely the responsibility of the Client to obtain such permissions and to make the legal and moral decision whether to publish photographs which contain images of individuals where model release forms have not been obtained.
5.3 Swarm UAV accepts no liability in circumstances where supplied images are used by the Client without such a release and subsequent action is taken by individuals or companies against the Client. Should the Client require such permissions, Swarm UAV should be informed in writing prior to the Date(s) for Services.
5.4 In addition, Swarm UAV accepts no responsibility where images of trademarks/company logos are used by the Client to support other non-associated works.
6 Delivery Date
6.1 All Deliverables will be delivered in the format agreed at the time of ordering by the Delivery Date specified in the Particulars, except where otherwise agreed.
6.2 The Delivery Date is subject to variation reasonably required to accommodate any changes to the Deliverables agreed between the parties.
7 Confidentiality and Intellectual Property Rights
7.1 Subject to clause 7.2, Swarm UAV and the Client will protect the confidentiality of all information provided to each other under this agreement.
7.2 Swarm UAV may disclose information to its contractors for the purposes of performing the Services under this agreement.
7.3 Neither party will disclose any information provided to it by the other party unless the information is in the public domain or required to be provided by law.
7.4 Title to all Deliverables will pass to the Client on receipt of full and final payment of the Fee (and any other amounts payable to Swarm UAV under this agreement) plus GST by Swarm UAV.
7.5 Unless otherwise agreed to in writing by the parties, all Intellectual Property Rights in or associated with the Deliverables and the Services will belong to and vest in, and are assigned to the Client on receipt of full and final payment of the Fee (and any other amounts payable to Swarm UAV under this agreement) plus GST by Swarm UAV.
7.6 The Client hereby grants an irrevocable, royalty free licence to Swarm UAV and its nominees to use the Deliverables for the purposes of promoting Swarm UAV’s business subject to any restrictions specified in the Particulars.
7.7 This clause will continue to apply after termination or expiry of this agreement without limit in point of time, but will cease to apply to confidential information which has come into the public domain otherwise than by a breach of this clause.
8 Payment of fees and expenses
8.1 The Fee for the Services and Deliverables by Swarm UAV is set out in the Particulars.
8.2 The Fee is subject to variation to the brief requested by the Client and agreed to by Swarm UAV.
8.3 Except where expressly stated, fees are inclusive of expenses such as travel.
8.4 All prices quoted by Swarm UAV are exclusive of GST.
9 Payment terms
9.1 Except where otherwise agreed, the Client will pay the Fee to Swarm UAV via electronic funds transfer using either of the following payment options as specified in the Particulars:
9.1.1 Option 1: 30% of the Fee plus GST is to be paid no more than 2 business days prior to the first day of the Services with the balance of the Fee plus GST payable on delivery of Deliverables by Swarm UAV.
9.1.2 Option 2: 50% of the Fee plus GST is to be paid no more than 2 business days prior to the first day of first day of the Services with balance of the Fee plus GST payable within 30 days of presentation of Swarm UAV’s invoice which will be issued on provision of Deliverables, unless otherwise agreed.
9.2 All other payments, fees and charges payable by the Client to Swarm UAV under this agreement will be payable to Swarm UAV on demand.
9.3 If the Client fails to pay an amount due under this agreement for more than 3 days after the due date, the Client must pay interest on the amount overdue:
9.3.1 at the rate which is 2% per annum above the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic); and
9.3.2 from and including the due date until but excluding the date of payment.
10.1 The Client is liable for payment of all taxes payable in connection with the supply of the Deliverables/Services. Except where this agreement states otherwise, each amount payable by the Client in respect of a taxable supply by Swarm UAV is expressed as a GST-exclusive amount and the Client must, in addition to that amount and at the same time, pay Swarm UAV the GST payable in respect of the supply.
11 Workplace health and safety
11.1 The Client will provide and maintain, so far as is practicable, an environment for Swarm UAV, its employees and members of the public that is safe and without risks to health.
11.2 The Client must itself, and must ensure that any of its contractors, at all times identify and take all necessary precautions for the health and safety of all persons, including Swarm UAV’s employees and contractors.
11.3 The Client must comply with any Acts, regulations, by-laws, codes of practice and Australian Standards which are in any way applicable to workplace health and safety and the provision of any services in relation to the Services.
12 Indemnity and limitation of liability
12.1 The Client must indemnify, keep indemnified and hold harmless Swarm UAV for all loss, damage (direct or indirect), liability or injury caused or contributed to either directly or indirectly by the Client or any person the Client is responsible for (including personnel and sub-contractors).
12.2 The Client must indemnify, keep indemnified and hold harmless Swarm UAV from and against all claims, damages, loss and expenses arising out of or in connection with the Client’s breach of this agreement or any negligence, reckless or wilful act or omission by the Client or any person the Client is responsible for.
12.3 Swarm UAV will not be liable for any misrepresentation that may occur as a result of any editing or manipulation of images carried out by Swarm UAV in accordance with this agreement.
12.4 Swarm UAV’s liability to the Client is limited to the value of the agreed Fee.
12.5 Neither party will be liable for consequential, special, indirect, exemplary or punitive liabilities in relation to a breach of this agreement or event, fact, matter or circumstance.
13 Weather conditions
13.1 The Client acknowledges that Swarm UAV may be unable to provide the Services and operate its aerial equipment in certain weather conditions.
13.2 Swarm UAV will be unable to provide the Services on the Date(s) for Services if:
13.2.1 Swarm UAV’s Chief Pilot deems that it is unsafe to fly due to prevailing weather conditions; or
13.2.2 the Client or its representatives directs Swarm UAV that the weather conditions are not suitable for the Deliverables.
13.3 Swarm UAV will endeavour to arrange to provide the Services as soon as possible after the agreed Date(s) for Services where possible.
13.4 Should work be interrupted by a change in weather conditions, Swarm UAV will arrange a further site visit to carry out the Services where possible.
13.5 The Client will be liable for any costs incurred by Swarm UAV and its contractors as a result of re-scheduling the Services.
13.6 Where it is not possible to re-schedule the Services due to the Client’s requirements, normal cancellation rates (see clause 15) will apply.
13.7 Swarm UAV is not responsible for delay or failure to provide the Services due to the prevailing weather conditions and cannot be held liable where this results in loss or damage to the Client.
14 Force Majeure
14.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is due to force majeure. If a delay or failure is anticipated due to force majeure, the performance of a party’s obligations will be suspended.
15 Cancellation and termination
15.1 The Client may cancel the Services prior to the Date(s) for Services at any time by giving written notice to Swarm UAV.
15.2 The Client agrees to provide Swarm UAV with as much notice as reasonably practicable.
15.3 The Client will be liable for the following to be paid in full within 30 days of presentation of Swarm UAV’s invoice:
15.3.1 where the Client cancels the Services within 24 hours of the Date(s) for Services – 100% of agreed price plus GST;
15.3.2 where the Client cancels the Services between 24-48 hours of the Date(s) for Services – 50% of agreed price plus GST;
15.3.3 where the Client cancels the Services between 48-96 hours of the Date(s) for Services – 30% of agreed price plus GST; or
15.3.4 where the Client cancels the Services more than 5 days prior to the Date(s) for Services – 10% of agreed price plus GST.
15.4 All other amounts due to Swarm UAV under this agreement plus GST will be payable within 30 days of presentation of Swarm UAV’s invoice unless otherwise agreed.
15.5 Any other monies and GST paid by the Client in advance will be refunded by Swarm UAV to the Client within 30 days.
15.6 Swarm UAV may terminate this agreement by giving reasonable notice in writing to the Client if:
15.6.1 the Client directs Swarm UAV to provide the Services in a manner contrary to the conditions of Swarm UAV’s aerial licence and any applicable laws;
15.6.2 the Client directs Swarm UAV to provide the Services in a way that creates an unreasonable risk to the health and safety of Swarm UAV personnel and its contractors or Swarm UAV equipment; or
15.6.3 the Client otherwise places unreasonable demands on Swarm UAV in the delivery of the Services.
15.7 The Client will be liable for any costs incurred by Swarm UAV prior to cancellation under clause 15.6 such amount not exceeding 50% of the Fee.
16 Public liability insurance
16.1 Swarm UAV holds public liability insurance ($10 million) which covers all aspects of the Services. A copy of this insurance policy is available to inspect by the Client upon request.
17 Warranties by Swarm UAV
17.1 Swarm UAV warrants that:
17.1.1 it holds a valid CASA aerial licence authorising the use of unmanned aerial vehicles required to carry out the Services under this agreement; and
17.1.2 its pilots are authorised to operate this equipment are authorised to do so under Swarm UAV’s aerial licence and insurance.
18.1 This agreement is subject to any special conditions in the Particulars. If there is an inconsistency between a special condition and another provision of this agreement, the special condition prevails.
18.2 This agreement will be read subject to any applicable laws and regulations.
18.3 All prior representations, warranties, arrangements, understandings and agreements concerning the subject matter of this agreement are superseded.
18.4 Any variations or assignments by the Client to this agreement will not be enforceable unless they are made in writing, prior to the variation or assignment and signed by both parties. Swarm UAV may assign its rights by written notice to the Client.
18.5 Swarm UAV may delegate and/or assign all or any of its rights or obligations under this agreement to a third party.
18.6 This agreement is governed by and interpreted in accordance with the laws of Victoria.
18.7 A waiver by Swarm UAV in respect of any breach of a condition or provision of this agreement shall not be deemed to be a waiver in respect of any other or any subsequent breach.
18.1 “CASA” means the Commonwealth Civil Aviation Safety Authority.
18.2 “Date(s) for Services” means the agreed date(s) for Swarm UAV to provide the Services set out in the Particulars.
18.3 “Deliverables” means any tangible results of the Services produced or generated by Swarm UAV including photographs, negatives, prints and literary works produced or generated by the Swarm UAV in the course of providing the Services.
18.4 “Delivery Date” means the agreed date for Swarm UAV to provide the Deliverables to the Client set out in the Particulars.
18.5 “Fee” means the fee for the Services and Deliverables set out in the Particulars.
18.6 “Fee for Aerial Approval” means the fee (if any) set out in the Particulars which the Client agrees to pay for Swarm UAV to obtain aerial approval from CASA.
18.7 “GST” means the goods and services tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) or any other goods and services tax, value added tax, consumption tax or tax of similar effect levied from time to time.
18.8 “Intellectual Property Rights” includes all copyright and neighbouring rights including all rights in relation to inventions (including patent rights), registered and unregistered trademarks and registered designs.
18.9 “Services” means all services to be performed by Swarm UAV under this agreement.