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Terms and Conditions

The software known as “FlyFreely” and the website at www.flyfreely.io and its related services, products, tools and applications (“Software”) is owned and operated by DEC-UAV Pty Ltd ACN 164 625 156.

Your access to and use of the Software is subject to these Terms and Conditions and all other Policies. By accessing or using the Software, You are deemed to agree to these Terms and Conditions and all Policies.

We may amend these Terms and Conditions or any Policy at any time at Our discretion. Please review the Terms and Conditions and Our Policies periodically as Your continued use of the Software deems You agree to any changes made. All amended Terms and Conditions and Policies shall automatically be effective from the time and date of appearance on Our Software (unless otherwise stated in the Terms and Conditions or Policy). If You do not agree with such changes, You must cease to use the Software immediately.

1.               Definitions and Interpretation

1.1             Definitions

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

(a)             Aeronautical Information means digital datasets or services that purport to graphically, digitally or otherwise represent aeronautical information, and includes, but is not limited to; aerodrome, movement areas, aeronautical information publications, aeronautical information service, notam, air traffic management, and airspace. For the avoidance of doubt, unless otherwise stated, the terms set out above in relation to the definition of Aeronautical Information, have the same meaning as set out in Chapter 1.1 Definitions section of Annex 15 to the Convention on International Civil Aviation – Aeronautical Information Services, (ICAO, 15th ed, 2016);
(b)             Confidential Information means these Terms and Conditions, any information, maintained in confidence by such party and communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and any information that by its form, nature, content or mode of transmission would to a reasonable recipient understand to be confidential or proprietary and, in the case of Us, includes Our technology and functionality and any related user documentation supplied by Us;
(c)              Content includes any information, material, functionality, text, images, sound, graphics, video and other data forming part of or contained in the Software from time to time whether in written form or otherwise;
(d)             Force Majeure means a delay or inability to perform any obligations, caused by war, whether declared or not, insurrections, strikes, lockouts or other industrial disturbance, inability to provide Services, unavailability of equipment or network, fire, storm or other severe action of the elements, accidents, pandemics and epidemics, government or statutory restrictions or from other causes whether like or unlike the foregoing which are unavoidable or beyond the reasonable control of either party including any form of technological or network failure or the actions of third parties;
(e)             Insolvency Event means any of the following:
(i)               a person is or states that the person is unable to pay from the person’s own money all the person’s debts as and when they become due and payable;
(ii)              a person is taken or must be presumed to be insolvent or unable to pay the person’s debts under any applicable legislation;
(iii)             an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
(iv)             a trustee in bankruptcy is appointed or an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days;
(v)              a controller is appointed in respect of any property of a corporation;
(vi)             a corporation is deregistered under the Corporations Act or notice of its proposed deregistration is given to the corporation;
(vii)           a distress, attachment or execution is levied or becomes enforceable against any property of a person;
(viii)          a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving any of them;
(ix)             a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven days or a person presents a petition against himself or herself; or
(x)              a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth);
(f)               Intellectual Property means all intellectual property rights, including without limitation inventions, patents, copyright, rights in circuit layouts, registered designs, trade marks, know-how, trade secrets, source code, processes, concepts, intellectual property in Software, and any right to have information kept confidential and any application or right to apply for registration of any of the these rights throughout the world whether registered or unregistered and whether developed before or after the date of these Terms and Conditions;
(g)             Loss means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss arising from lost or stolen programs or other data production stoppage, and any other indirect or consequential damages, (howsoever arising or caused, including, without limitation, by negligent act or omission);
(h)             Our/Us/We means DEC-UAV Pty Ltd ACN 164 625 156 and any Related Entity;
(i)               Policy means any policy of Ours in place from time to time regarding any matter, including without limitation, any policy relating to privacy, fees, refunds, feedback and service;
(j)               Related Entity/ies has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
(k)              Services means all of the services available for use within the Software, including but not limited to, drone mission planning and approval, drone mission execution and drone mission reconciliation for the purpose of drone operations, compliance, and fleet management workflows, as well as other such services as updated from time-to-time, as well as any further services that may be offered by Us from time-to-time;
(l)               Software means the software application known as “FlyFreely” and the website at www.flyfreely.io and its related Services, products, tools and applications;
(m)            User means any person or entity who accesses or uses the Software for any purpose whatsoever;
(n)             User Information means any information, data, documents, digital documents, dataset, database record or attribute, links, attachments, location data, video and photo content uploaded to the Software by a User or which We obtain as a result of Your use of the Software; and
(o)             You/Your means a User.

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)             the masculine gender must be read as also importing the feminine or neuter gender;
(f)               a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(g)             headings are for reference purposes only and must not be used in interpretation, with the exception of where a subheading of User is used, in which case clauses under that subheading relate to the party referred to in the subheading;
(h)             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;
(i)               a reference to a statute includes all regulations and subordinate legislation and amendments;
(j)               references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
(k)              a reference to a monetary amount is a reference to an Australian currency amount;
(l)               an obligation of 2 or more parties binds them jointly and each of them severally;
(m)            an obligation incurred in favour of 2 or more parties is enforceable by them severally;
(n)             references to time are to local time in Brisbane, Queensland;
(o)             where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
(p)             a reference to a business day means any day on which trading banks are open for business in Brisbane, Queensland;
(q)             if any time period specified in these Terms and Conditions expires on a day which is not a business day, the period shall expire at the end of the next business day;
(r)              a reference to a month means a calendar month; and
(s)              a reference to data includes metadata.

2.               Software Function

2.1             The Software is designed to allow Users to use the Services.

2.2             We do not warrant or guarantee:

(a)             that the Software will provide any function for which it is not specifically designed;
(b)             that the Software will provide any minimum level of performance;
(c)              that the Software will be virus free or free of performance anomalies or be operational at all times or without interruption; or
(d)             around the outcomes, content, accuracy or quality of any training undertaken via the Software.

3.               User Eligibility

3.1             Access to the Software is only available to, and may only be used by, persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software is not available to persons under 18 years of age. If You do not qualify, do not use the Software.

4.               Access

4.1             We grant to You a non-exclusive, non-assignable licence to use the Software to the extent paid or subscribed for and for business or personal use only and strictly in accordance with these Terms and Conditions.

4.2             You acknowledge and agree with Us that You will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation intellectual property or other intangible rights) in the Software, Content or any part of it, other than the non-exclusive rights granted in accordance with these Terms and Conditions (if any).

4.3             In order to use the Software, You require the equipment and connections necessary to access the World Wide Web and Global Positioning System connections. You are responsible for:

(a)             the provision of any such connection or access to the World Wide Web and Global Positioning System connections;
(b)             the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and
(c)              the provision of all equipment necessary for You to make any such connection to the World Wide Web and Global Positioning Systems.

4.4             We operate the Software in Australia. Content contained on the Software may not be appropriate or available for use in other locations. If You access the Software from other locations, You do so at Your own initiative and risk and You are solely responsible for compliance with local laws.

5.               User Accounts

5.1             Each User must register to use the Software which will create an account with a username and password.  This account will be Your account for use of the Software (“Your Account”).

5.2             You must not use false or misleading information in registering or using the Software and You must update Your details should they have changed from the last time You used the Software.  We are not responsible for any Loss or damage which may occur because You have not provided up to date, accurate or complete information.

5.3             You must choose an individual username and password when registering Your Account. You are responsible for keeping Your username and password secure and confidential and We and any other User of the Software will assume that anyone using Your Account is authorised by You. Under no circumstances will unauthorised access and use of Your Account reduce Your liability in connection with the Software. This includes Your obligation to purchase an item which may result from use of Your Account.

5.4             You must notify Us immediately if You become aware of any unauthorised use of Your Account or other security breach which We may consider relevant.

5.5             You may request that Your Account be closed by emailing Us.

6.               Privacy

6.1             All personal information that We process on the Software or through email or any other means will be managed and used in accordance with Our Privacy Policy and the Privacy Act 1988 (Cth).

6.2             You acknowledge and agree that;

(a)             You authorise Us to use, store or otherwise process any information including personal information which relates to and/or identifies You, including, but not limited to, Your name, company or business name, email address and postal address (“Personal Information”), to the extent reasonably necessary for the provision of any goods and services requested by You;
(b)             You must ensure that the personal information You provide to Us and that all registration details (where applicable) contain Your correct name, address, e-mail address and other requested details;
(c)              We store data for as long as We consider necessary;
(d)             by accepting these Terms and Conditions, You agree to the processing and disclosure of the Personal Information for the purpose of Us providing the Software and as otherwise agreed under clause 9.7.

6.3             If You would like to review or modify any part of Your Personal Information, then You should contact Us.

6.4             By accessing or using the Services you acknowledge and agree that We also receive data from or about the computer, mobile phone, or other devices You use to access the Software. This may include network and communication information, such as Your IP address or mobile phone number, and without limitation, any other information about Your internet service, operating system, location, the type (including identifiers) of the device or browser You use, or the pages You visit.

7.               Your Obligations

7.1             You must comply with all clauses of these Terms and Conditions and all Policies and all other terms and policies incorporated by reference.

7.2             You must also comply with all applicable domestic (including common law) and international laws, statutes, ordinances and regulations regarding Your use of the Software including without limitation, the Competition and Consumer Act 2010 (Cth), Civil Aviation Safety Regulations 1998 (Cth) and other relevant state-based aviation and fair-trading legislation.

7.3             Your use of the Software, and any User Information, must not:

(a)             be false, inaccurate or misleading;
(b)             be fraudulent or deceptive;
(c)              impersonate or otherwise misrepresent Your identity or affiliation with any other person or entity;
(d)             infringe any third party’s copyright, patent, trade mark, trade secret, intellectual property or other proprietary rights or privacy;
(e)             violate any applicable law, statute, ordinance or regulation (including those governing consumer protection, unfair competition, criminal law, aviation law and regulations, antidiscrimination or trade practices law;
(f)               be defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
(g)             be obscene, pornographic or indecent or contain adult material or vulgar, profane, discriminatory, offensive or racist language;
(h)             contain comments of a religious, political or social nature;
(i)               contain any viruses, trojan horses, worms, time bombs, trap doors, back doors, 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 the Software;
(j)               interfere with or disrupt the Software or servers or networks connected to the Software, or disobey any requirements, procedures, policies, or regulations of networks connected to the Software;
(k)              create liability for Us or cause Us to lose (in whole or in part) the services of Our internet service provider, other Users or other suppliers;
(l)               damage the reputation, credibility or integrity of the Software or Us;
(m)            breach or violate these Terms and Conditions or any Policy;
(n)             link directly or indirectly to or include anything that:
(i)               You do not have a right to link to or include; or
(ii)              could cause Us to violate any applicable law, statute, ordinance or regulation.

7.4             You acknowledge and agree that You must not:

(a)             use the Software for any purpose other than the purpose for which it was designed and intended;
(b)             commit or permit any act which may interfere with the use of the Software by any other User;
(c)              use the Software to send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) to any person or company;
(d)             attempt to gain unauthorised access to the Software or computer systems or networks connected to the Software through any means;
(e)             tamper with, hinder the operation of or make unauthorised modifications to the Software or any part thereof;
(f)               damage or modify the Software or any part thereof;
(g)             reverse engineer, decompile or disassemble the Software or any part thereof;
(h)             copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any part thereof; or
(i)               modify, alter, adapt, disassemble, reverse engineer, decompile or amend any content on the Software or any part thereof in any way.

8.               Fees

8.1             You acknowledge and agree that access to the Software is subject to payment of the required fee/s as notified by Us from time to time or as published in the Software.

8.2             Payment of all fees must be made in the time and manner directed by Us and subject to any specific billing and payment terms which may be agreed upon between the parties from time to time.

8.3             Where agreed by Us in writing in advance, payment for a User, or multiple Users, may be made by the User’s employer.

8.4             All fees are non-refundable.

8.5             If any fee applicable to a particular User’s access to the Software is not paid by the nominated due date:

(a)             access by that User to the Software and Services will be automatically suspended;
(b)             the User must pay interest on any unpaid outstanding amount calculated at the daily rate of 18% per annum from the due date for payment until the date payment is actually made;
(c)              the unpaid fee, any costs (including costs incurred in the collection of overdue amounts and legal costs on a solicitor and own client basis) we incur in collection of any overdue amounts, may be recovered by Us as a debt immediately due and owing.

8.6             Unless otherwise stated, all pricing for use of the Software is in Australian Dollars and exclusive of GST. GST will be payable in addition if it is payable on the supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

9.               User Information

9.1             You are solely responsible for any User Information which You supply or upload, and You acknowledge and agree that We act as a passive conduit for any distribution and publication of Your User Information.

9.2             You are solely responsible for transmissions to Our Software when using Your Account or when the Software is accessed by someone using Your Account.

9.3             You grant Us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all intellectual property or other rights in Your User Information in any media.

9.4             You acknowledge and agree that:

(a)             We only act as a portal for the distribution and publication of User Information;
(b)             We make no warranty that User Information is actually made available on the Software;
(c)              We may control the nature and extent of publication of any User Information within the Software, including which Users can view a particular item of User Information;
(d)             We have the right (but not the obligation) to take any action deemed appropriate by Us with respect to User Information;
(e)             We have no responsibility or liability for the deletion or failure to store any of User Information, whether or not it was actually made available on the Software;
(f)               User Information is subject to Our approval and may be accepted, accepted on conditions, modified or rejected at Our absolute discretion;
(g)             when You provide User Information, We may receive additional related data, such as the time, date and place You provided the User Information;
(h)             We are not liable or responsible for any Loss that You may experience in submitting or viewing User Information or as a result of the use of User Information by any party, including Us.

9.5             Without limiting any other clause of these Terms and Conditions or any Policy, You represent and warrant that Your User Information:

(a)             will not infringe upon or misappropriate any intellectual property or other rights of any person;
(b)             will not violate any law or regulation;
(c)              will not be defamatory or libellous;
(d)             will not be obscene;
(e)             will not include incomplete, false or inaccurate information; and
(f)               will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

9.6             We may provide a packaged extract of User Information upon request of the User, as reasonably required and may, in Our absolute discretion, charge for time spent collating User Information of $100.00 per request.

9.7             Subject to this clauses 6, 9 and 21, You acknowledge and agree that We may publish Users on our website or in any other advertising medium, at Our sole discretion, representing you as a User and client, for the purposes of advancing our publicity and marketing of the Software or Services.

9.8              For the avoidance of any doubt, the You retain ownership and any ancillary Intellectual Property Rights to any User Information uploaded to the Software.

10.             Software Content

10.1          The Software contains Content prepared by Us or by third parties at Our request which is of a general nature only.

10.2          The Content does not take into account Your needs, objectives or financial or training situation or provide You, Your employees or contractors or Your customers with advice of any nature.

10.3          The Software, all Content and any User Information is provided on the basis that the authors, publishers and Us are not engaged in providing, and do not provide, professional advice and services and nothing published by those authors, publishers and Us on or through the Software constitutes professional advice. Because of this You should, before acting on any Content or User Information, consider its appropriateness to Your personal circumstances, the circumstances of Your employees, contractors and customers and seek professional advice to determine if it is suitable.

10.4          The Software, Content and User Information is not and should not be used as a substitute for professional advice.

10.5          We are not responsible under any circumstances, including negligence, for any errors or omissions, or for the results obtained from the use of the Software, any Content or any User Information. In no event will We or Our Related Entities, officers, directors, agents, employees, consultants or contractors be liable to a User or any third party for any decision made or action taken or omission in reliance on the information in the Software, the Content or User Information or for any consequential, special or similar damages or other Loss, even if advised of the possibility of such damages.

10.6          The Software and all Content and User Information is provided with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of it, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose to the extent permitted by law. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in the Software.

10.7          We are not, and You confirm and acknowledge that We are not, a registered or formal training organisation for the purposes of delivery of the Services.

10.8          We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, legality, accuracy, completeness or otherwise of User Information.

10.9          Certain links in the Software may connect to other websites or applications owned and maintained by third parties over whom We have no control. We make no representations as to the accuracy or any other aspect of information contained in other websites or applications.

10.10       The Software may contain a number of links to other internet software which are operated by third parties. You acknowledge and agree that We are not responsible either directly or indirectly for any Loss caused by use of or reliance on linked software.

11.             Nature of Aeronautical Information used as part of the Services

11.1          We provide Aeronautical Information as part of the Services, and this Aeronautical Information is provided by and synthesised from a number of third-party sources, including statutory governmental agencies. We make no representation or warranty in relation to the completeness, currency, or accuracy of this information.

11.2          The Aeronautical Information that forms part of the Services will vary by geographic region, governmental jurisdiction, and from time-to-time, the respective third-party providers will issue updates to their respective data sources, which may subsequently be incorporated into the Services, at Our sole discretion.

11.3          This Aeronautical Information is provided as part of the Services and is supplied on the same basis as the rest of the Services, as set out in these Terms and Conditions.

11.4          The User acknowledges that, Aeronautical Information is used as part of the Services and as such there may be additional provider-specific or jurisdiction-specific laws and regulations that apply. Notwithstanding that compliance with all laws, regulations and directions is Your responsibility, We may from time to time give specific notices about such matters, however are not obliged to do so to Users.

11.5          The following specific conditions of use and/or notices as they relate to the respective provider-specific or jurisdiction-specific Aeronautical Information used as part of the Services, form part of these Terms and Conditions.

(a)             Australia:

(i)               Airspace Information related to Australia is not approved under the Australian Civil Aviation Safety Regulation 1998 (Cth) Part 175 (CASA Part 175) and is advisory only and is not to be used for the purpose of air navigation.

(b)             New Zealand:

(i)               Airspace Information related to New Zealand is not approved under the Civil Aviation Rules 2015 Part 175 (CAR Part 175) and is advisory only and is not to be used for the purpose of air navigation.

12.             Intellectual Property and Data

12.1          The Software, the Content and the Intellectual Property is protected by copyright and other proprietary rights and remains the property of Us.

12.2          You acknowledge and agree that You will not copy, reproduce, alter, modify, create derivative works, or publicly display the Software, Content or any part of it unless with the prior written permission from Us (which may be granted or withheld at our absolute discretion) and when doing so You must acknowledge Us and, in the case of software, include a link from Your software to Our Software.

12.3          We may at Our sole and absolute discretion refuse or remove any Content from the Software.

12.4          This clause survives termination of the Terms and Conditions.

13.             Upgrades

13.1          You acknowledge and agree that these Terms and Conditions apply to any changes or updates to the Services or Software and any additional Services provided in the Software.

13.2          We reserve the right to discontinue any Services provided to You or made available to You through the use of the Software at any time.

14.             General Maintenance and Technical Support

14.1          Access to the Software does not entitle You to any technical support, telephone assistance, or enhancements or updates to the Software. However, this does not prevent Us from offering such services at Our sole discretion.

14.2          We will endeavour to carry out any non-urgent support services, upgrades, updates, supplements, add on components, or other internet based services or components of the Software outside of usual business hours. We may provide reasonable notification of any anticipated downtime.

15.             Breach

15.1          You will be in breach of these Terms and Conditions if:

(a)             You breach these Terms and Conditions or any Policy or the terms and policies those documents incorporate by reference, including as to payment of any fees;
(b)             We are unable to verify or authenticate Your information;
(c)              We believe that Your actions may cause legal liability for You, Users of the Software or Us;
(d)             We become aware that the User’s directors or any one of them have or are taking steps under the safe harbour provisions which apply to s588G of the Corporations Act 2001 (Cth);
(e)             in Our sole opinion, Your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of the Software (or the operation thereof) or Us;
(f)               You are subject to an Insolvency Event; or
(g)             We suspect that You (by conviction, settlement, insurance or escrow investigation, or otherwise) in Our sole discretion have engaged in fraudulent or deceptive activity in connection with Our Software.

15.2          On termination or expiry of these Terms and Conditions Your right to use the Software, Services and any Content shall cease.

15.3          The rights and remedies of a party are in addition to the rights or remedies conferred on the party at law or in equity.

16.             Termination

16.1          We may immediately terminate the Terms and Conditions and/or Your access to or use of the Services and Software (or any part thereof) in the event of:

(a)             your breach of these Terms and Conditions or any Policy;
(b)             discontinuance or material modification to the Services (or any portion thereof);
(c)              unexpected technical or security issues or problems;
(d)             prolonged Force Majeure; and/or
(e)             extended periods of inactivity.

16.2          Without limiting other remedies available to Us at law, in equity or under these Terms and Conditions or any other Policy or otherwise, in We may, in Our sole discretion:

(a)              issue a warning, temporarily suspend, indefinitely suspend Your use of the Software and/or refuse to provide the Software to You (including preventing You from accessing the Software) if you are in breach under clause 15.
(b)             remove any infringing User Content from the Software (if applicable)

16.3          We shall have no liability to You whatsoever as a result of any action taken by us under clause 15 and/or clause 16, including no liability for Loss, including or any loss of data

16.4          In addition to any other rights either party may, by 1 months’ written notice to the other, terminate a User’s access to the Software and Services. Any amounts paid in advance may be refunded at Our discretion.

17.             Effect of expiry or Termination

17.1          On expiry of a User’s access to the Software or termination:

(a)             We will cease to provide access to and use of the Software and Services;
(b)             the User must destroy all evidence of any usernames, passwords, internet protocol addresses and other like matters;
(c)              all payments previously made by, or on behalf of the User, remain the property of Us and no party may make any claim in respect of such payments;
(d)             We may, but are not obliged to, delete all User Information which is held in the Software or otherwise in the records of Ours.

17.2          Any rights which may have accrued to either party prior to expiry or termination shall be unaffected.

17.3          All rights contained in these Terms and Conditions which are capable of doing so shall survive the expiration or termination of these Terms and Conditions and the User’s use of the Software.

18.             No Warranty and Disclaimers

18.1          Subject to any warranties under the Competition and Consumer Act 2010 (Cth) which are unable to be contracted out of, We provide the Software 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. To the extent permitted by law, We specifically disclaim any implied warranties including in relation to title, merchantability, fitness for a particular purpose and non-infringement. Furthermore, We do not guarantee continuous, uninterrupted or secure access to the Software, Content or User Information, and operation of Our Software may be interfered with by numerous factors outside Our control.

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

18.3          You acknowledge and agree that We make no representation or warranty, in respect of the Services, that a flight path approval requested through the Software or as part of the Services, will be granted, or processed within a specific time and you acknowledge that all Services are delivered at Our discretion.

18.4          No data transmission over the internet can be guaranteed as totally secure. Whilst We strive to protect Your information, We do not warrant and cannot guarantee the security of Your information which You transmit through the Software. Accordingly, Your information which You transmit through the Software is transmitted at Your own risk. We cannot guarantee that Your information remains solely in the hands of those recipients of that information or that those recipients comply with their confidentiality obligations as required under Our Policies, and We will not be responsible or liable for any Loss incurred by your or any third party in this regard. You must inform Us immediately of any breaches of security or unauthorised use of Your information.

19.             Liability

19.1          In no event shall We or Our Related Entities, officers, directors, employees, agents, contractors or suppliers be liable for any Loss arising out of or in connection with:

(a)             the provision of Services, Our Software, use of the Software or Services, the inability to use the Software or Services by You or any party;
(b)             any performance, failure of performance, error, omission, interruption, defect, delay in operation or transmission;
(c)              line or system failure or the introduction of a computer virus or any other item specified in clause 7.3(i) or other technical sabotage; or
(d)             the Software, Services, Content or User Information, even if We or Our employees or representatives are advised of the possibility or likelihood of such Loss.

19.2          You agree to accept sole responsibility for the legality of Your actions under the laws which apply to You. You agree that We and Our Related Entities, officers, directors, employees, agents, contractors and suppliers have no responsibility for the actions of You or other Users (including the legality of such actions).

19.3          Without limitation and notwithstanding any other provision of these Terms and Conditions and 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, in the case of Our Services, the supply of the Services again;
(b)             We shall not be liable for any Loss You may incur.

19.4          The limitation and exclusion of liability in this clause 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.

19.5          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 Us or our Related Entities, officers, directors, employees, agents, contractors or suppliers except where (and to the extent that) applicable law prohibits such exclusion or limitation.

20.             Indemnity

20.1          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 (known and unknown), including solicitors’ 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.

21.             Confidentiality

21.1          Each party shall keep confidential all information, know how or materials relating to the other party or identified by the other party as confidential or which from the circumstances in which it is made available ought to be treated as confidential, in whatever form and shall not use the same for purposes other than in relation to the performance of the party’s respective obligations under these conditions. Neither party shall disclose any such Confidential Information to any person without the consent of the other. These obligations shall survive termination or expiration of these Terms and Conditions. Nothing in this clause shall apply to any information:

(a)             which is (or which becomes) available to the public other than by breach of these Terms and Conditions or of any other duty;
(b)             which the party receiving the information already possesses or which it obtains or originates independently in circumstances in which that party is free to disclose it;
(c)              is required to be disclosed by law.

22.             GST

22.1          Subject to clause 22.2, if a party (“the supplier”) should make a taxable supply to another party (“the recipient”) under these Terms and Conditions, the recipient must pay to the supplier the GST arising on the taxable supply at the time the consideration for it falls due for payment.

22.2          The supplier must give the recipient a tax invoice relating to the taxable supply in exchange for the payment of GST under clause 22.1.

22.3          As a separate and distinct obligation, the recipient indemnifies the supplier from liability for the payment of GST arising on taxable supplies made to the recipient under these Terms and Conditions, subject to the provision of a tax invoice by the supplier under clause 22.2.

22.4          In this clause, words and phrases that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have, so far as the context permits, the corresponding meaning.

23.             Miscellaneous

23.1          Accessing Content from the Software and uploading information to the Software is done so at Your own risk and You will be responsible for compliance with the laws within Your jurisdiction.

23.2          Publication of electronic addresses in the Software is for the purpose of professional communication only and must not be used to infer consent to the receipt of unsolicited commercial electronic messages.

23.3          These Terms and Conditions are governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland and the parties submit to the jurisdiction of the Court of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.

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

23.5          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.

23.6          You agree that these Terms and Conditions and all incorporated agreements may be assigned by Us, in Our sole discretion. You may not assign these Terms and Conditions without Our express prior written consent.

23.7          Our 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.

23.8          No waiver by a party of a provision of these Terms and Conditions is binding unless made in writing.

23.9          Unless otherwise specified, these Terms and Conditions and the Policies comprise the entire understanding and agreement between You and Us with respect to the subject matter hereof.

23.10       Nothing in these Terms and Conditions or Your use of the Software establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.

23.11       The clauses capable of doing so will survive any termination or expiration of a User’s access to the Software.

23.12       The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

23.13       The parties consent (in accordance with sections 11 and 12 of the Electronic Transactions (Queensland) Act 2001 (Qld)) to all correspondence in relation to these Terms and Conditions, including notices, contract and information being given by electronic communication.

23.14       Any notice or demand in writing required to be given by Us to You shall be sufficiently served if:

(a)             served personally or by pre-paid mail to Your last known address;
(b)             sent by facsimile machine to Your facsimile machine;
(c)              sent in electronic form by email to Your email address; or
(d)             published by notice on the Software.