GENERAL TERMS AND CONDITIONS
Part I – General Terms and Conditions for Flight Services
1. Scope
These General Terms and Conditions (“GTC”) shall apply to all contracts concluded between the Customer and EuroDragons Sales and Holding GmbH (hereinafter referred to as “ED”), concerning services for the generation of data and aerial photographs and their recording using unmanned and manned aerial vehicles.
Consulting services in this area fall under Part II of this GTC.
This GTC is exclusive and binding and shall apply to all current and future business relationships with the Customer. Provisions in contradiction to this GTC shall be deemed invalid.
Provisions deviating from or supplementing this GTC shall only become part of the contract on an individual basis if they are expressly confirmed by ED in writing.
This GTC shall remain valid even in the event that ED performs services without any reservations in the knowledge that the Customer’s terms and conditions conflict with or deviate from this GTC.
Deviating terms and conditions of the Customer shall only apply if they have been expressly accepted by ED in writing.
2. Cost Estimates, Offer, Acceptance
Cost estimates prepared by ED are principally subject to a fee, non-binding and subject to change, unless otherwise agreed on an individual basis.
Cost estimates are prepared by ED to the best of its expert knowledge; however, no guarantee can be given as to their correctness. ED shall notify the Customer immediately of cost increases exceeding 15%.
Offers from ED are made on the basis of the information provided by the Customer and are generally subject to change. The Customer shall undertake to provide ED with all information necessary for preparing the offer as well as executing the contract (e.g., contact person; invoice address, if different; invoice text; etc.) in the manner requested by ED. This information shall be provided in writing unless otherwise agreed.
The contract shall be deemed concluded when the Customer provides acceptance in writing, or if the Customer issues the offer/order, when ED confirms the assignment/mission in writing.
3. Permits, Obligations of the Customer
ED is responsible for ensuring that the Unmanned Aircraft Systems (UAS) used have been approved by the relevant bodies and authorities and that a valid permit exists for these. In addition, ED is responsible for ensuring that the necessary flight permit has been obtained for the execution of the contracted mission.
For this purpose, the Customer shall provide ED with all information ED deems necessary. Delays that fall under the Customer’s sphere of influence shall not give rise to claims for damages asserted by the Customer vis-à-vis ED.
If special permits are required (e.g., for restricted military areas), ED shall inform the Customer as soon as the mission/assignment has been defined. ED shall assume no liability that the necessary special permit can be granted and that the mission can be carried out as planned.
The Customer shall ensure that any necessary authorizations from property owners, persons authorized to dispose of property, or any neighbors affected are made available in writing before the mission/assignment is carried out. Any associated costs incurred shall be borne by the Customer. If no permit has been issued or the issued permit is no longer valid, the mission/assignment cannot be carried out. The frustrated expenses incurred by ED as a result shall be reimbursed by the Customer.
The Customer shall indemnify and hold ED harmless in the event of claims asserted by third parties due to encroachments on the rights of third parties (e.g., trespassing), arising from incorrect information provided by the Customer or a lack of consent by third parties.
The fees for obtaining the (flight) permits shall be charged to the Customer with an administrative surcharge of 10%.
4. Conditions of Execution
Special conditions of execution shall be deemed agreed for the mission/assignment in compliance with general safety regulations and statutory provisions. In particular, aerial photography will only be carried out in compliance with the statutory provisions and requirements. These provisions and requirements can be consulted at www.austrocontrol.at.
The framework conditions for a mission/assignment to be carried out shall be detailed in the flight manual and shall vary depending on the UAS.
ED reserves the right to choose the flight path in question. The pilot or the operator alone shall decide how the UAS is to be controlled and whether the mission/assignment will be carried out under the given circumstances.
Verbal commitments by representatives of ED or other persons providing support shall only be deemed valid if confirmed in writing.
If contract performance deadlines have been specified by ED and consequently form the basis for commissioning the assignment/mission, any delays arising in the event of a strike, external approval procedures and cases of force majeure shall effect the extension of such deadlines by a period commensurate with the duration of the delay. The same shall apply should the Customer fail to fulfill any obligations to cooperate.
Should additional services be desired subsequent to the commissioning of the assignment/mission, ED and the Customer shall reach an agreement regarding additional fees; otherwise, a reasonable fee shall be deemed to have been agreed upon.
5. Customer Obligations to Warn and Provide Information
It shall be the Customer’s responsibility to inform ED accordingly should special circumstances be deemed relevant to the mission/assignment. This shall include all those circumstances known to the Customer arising from knowledge of the conditions at the location/in the region where the mission/assignment is to be carried out and which are relevant for the execution of the mission/assignment (e.g., topographical peculiarities, special weather conditions, etc.).
6. ED’s Obligations to Warn and Provide Information, ED’s Right of Withdrawal
ED hereby states that it shall assume no liability for personnel, equipment or materials provided by the Customer. ED reserves the right to withdraw from the contract should the necessary legal or factual circumstances of the mission/assignment on site differ from those previously defined or represented. ED shall not assume any liability for any resulting prejudice of any kind.
Any costs incurred up to the time of withdrawal from the contract shall be borne by the Customer if the Customer is at fault for the misrepresentation of the circumstances.
7. Implementation
The execution of a mission/assignment shall require a pilot or operator and a person to operate the sensor technology and/or payload. The personnel required for the execution of the mission/assignment shall be provided by ED in the definition phase of the mission. ED may use its own personnel as well as subcontractors, in particular group companies, for the fulfilment of its contractual obligations.
The pilot/operator is responsible for the proper and safe execution of the mission/assignment according to the description/requirement for the mission/assignment provided by the Customer. The safety and/or security of persons, property and equipment shall be paramount. The pilot/operator alone shall decide on the manner in which to deal with unforeseen circumstances of any kind. This may range from changes to the mission/assignment within the approved scope to aborting the mission entirely. All costs incurred up to and including the aborting of the mission/assignment shall be borne by the Customer.
The Customer may provide the sensor or payload expert. The Customer shall ensure that the named person has the necessary skills and is familiar with the technology to be used. ED shall not assume any liability for personnel provided by the Customer or the result of the mission/assignment.
8. Reasons for Non-Execution and Aborting, Impossibility
The execution of the mission/assignment as well as the use of the UAS may be rendered impossible by various influences (wind, temperature, precipitation, poor visibility conditions, etc.) or other unforeseeable circumstances (e.g., lack/withdrawal of consent of the property owner/party authorized to dispose of the property, accident involving a representative of a contracting party, theft of equipment, etc.). Depending on the application and the sensor technology/payload required, various limit values may render the mission/assignment impossible. These limit values shall be defined contractually on an individual basis.
An impossibility of performance shall be determined, unless otherwise contractually agreed, if the mission/assignment cannot be performed within the contractually agreed period of time.
If a waiting period at the place of performance has been agreed to in writing, the impossibility shall only be determined subsequent to the expiration of said waiting period.
If the responsibility for the impossibility lies neither in the sphere of influence of the Customer nor in that of ED, ED shall in any case be entitled to reimbursement of expenses incurred (travel expenses, permit expenses, etc.). The risk for the impossibility of carrying out the mission due to poor weather conditions shall be borne by the Customer unless otherwise contractually agreed on an individual basis.
If requested by the Customer, ED agrees to resume the mission/assignment at a later date in the event of a weather-related interruption of a mission/assignment already begun, and any additional expense shall be remunerated. This date shall be determined by ED in agreement with the Customer, if necessary, with an agreement that the additional expenses shall be borne by the Customer.
If the mission/assignment is aborted for the above reasons and no agreement is reached as to a later date or on the additional expenses to be borne by the Customer regarding the resumption of the mission/assignment, the contract shall be deemed terminated and ED shall be entitled to remuneration for any services rendered or any expenses incurred to date.
The mission/assignment shall be deemed aborted due to weather-related circumstances if the mission/assignment cannot be continued even after three hours from the start of weather conditions rendering a flight impossible for safety reasons. In individual cases stipulations deviating from this provision can be made by mutual agreement and in writing.
In case of damage to ED’s equipment (e.g., UAS or batteries) during the execution of the mission/assignment due to ED’s own fault or force majeure (e.g., uncontrollable, sudden weather conditions), the crew provided by ED shall be responsible for determining the further course of action. ED may decide to resume the mission/assignment at a later date, if deemed expedient for the Customer. This date shall be determined by ED in agreement with the Customer. If no agreement is reached regarding a later date for the resumption of the mission/assignment, or if a resumption is not deemed expedient for the Customer, the contract shall be deemed terminated and ED shall be entitled to remuneration for any services rendered or any expenses incurred to date. ED shall not be held liable for any additional costs incurred by the Customer in this context.
If an impossibility or damage is attributable to the Customer’s sphere of influence or is caused by the Customer and is the Customer’s fault, ED shall be entitled to payment of the fee in full as well as compensation for the damage incurred. In addition, the Customer shall be liable to ED for any loss of profit. In individual cases stipulations deviating from this provision can be made by mutual agreement and in writing.
9. Post-Processing / Evaluation / Interpretation of Generated Data
The post-processing, evaluation and/or interpretation of the data generated while executing the mission/assignment shall be defined in the offer. Should the offer contain no such definitions, ED shall hand over the unmodified data to the Customer for further processing.
10. Copyrights and Rights of Use
All copyrights and rights of use to images and videos created or other works shall remain with ED. ED shall grant the Customer simple rights of use to images and videos created or other works in accordance with the individual contractual agreement. The transfer of rights of use is generally subject to payment of fees in full.
ED shall be exclusively entitled to all copyrights to the works created by ED within the scope of the services (images, videos, presentations, algorithms, drafts, reports, other documents, etc.). The Customer is granted a right of use, unrestricted as to time and place, to works created for the Customer, which is not transferable to third parties, unless otherwise agreed. The right to exploit, reproduce, disseminate, or make available the works is expressly not included.
The use of the works, including excerpts or parts thereof, for purposes other than those agreed in individual contracts, in particular commercial use, is expressly prohibited. ED shall not be held liable vis-à-vis third parties.
11. Terms of Payment, Rights of Set-Off
Unless otherwise contractually agreed on an individual basis, ED shall be entitled to invoice the entire fee immediately upon the conclusion of the contract. Receipt of payment in the bank account provided by ED is a prerequisite for ED to take further steps (obtaining permits, etc.).
The payment of the invoiced amount is due no later than 14 days from the invoice date without deductions, unless otherwise contractually agreed. In the event of payment default, interest on arrears shall amount to 10% above the base rate per annum.
If the payment deadline is missed in the event of default, the provision of services may be restricted.
In case of cancellation of an assignment/mission, a cancellation fee shall be due and payable, staggered as follows:
- Up to three (3) days before the assignment date: 50% net of the invoiced amount
- Up to 48 hours before the assignment date: 70% net of the invoiced amount
- Less than 48 hours before the assignment date: 100% net of the invoiced amount
The Customer shall only be entitled to the right of set-off if its counterclaims have been legally established with res judicata effect, or are undisputed, undisputable or acknowledged by ED.
The fees for obtaining the (flight) permits shall be charged to the Customer with an administrative surcharge of 10%.
12. Liability
To the extent permitted by law, ED shall not be liable for damage caused by minimal negligence, with the exception of personal injury. Liability for loss of profit and non-material as well as indirect/consequential damage or damage to third parties is excluded. ED’s liability shall be limited to the contractual amount per contract.
Should the Customer provide personnel for the execution of the mission/assignment, i.e., in particular experts for payload/sensor technology, ED shall not be held liable for these personnel (operation, expertise, result, etc.).
Furthermore, ED shall not assume any liability for any payload/sensor technology provided by the Customer. In this case, appropriate tests must be performed prior to the execution of the mission/assignment (compatibility of the payload/sensor technology with the UAS, weight, balance, power supply, etc.).
ED shall not assume any liability in general for operating materials provided by the Customer or third parties and their suitability or effectiveness for the contractual application.
The Customer shall bear the risk and the expense for the transfer of the work through the Internet or the shipment by physical transport.
ED shall not assume any liability in case of errors on data media or files that occur during the importing of files to the Customer’s system.
13. Warranty
Images, videos and sound recordings shall be created with the use of technical equipment (cameras, etc.) designated on the website by ED’s 100% subsidiary EuroDragons https://www.eurodragons.at/uas/, or an agreement with the Customer shall be reached on an individual basis regarding the equipment to be used. Accordingly, the technical data of the devices specify the quality that is expected and technically possible. External influences such as subpar lighting conditions, unwanted specularity, reflections, unwanted persons or objects in the image, vibrations caused by wind, etc. shall not constitute grounds for reduction. Any consequently necessary post-processing of the images, videos and sound recordings shall be carried out at the Customer’s expense.
Statutory provisions shall apply to the warranty, with the exception that it shall always be the duty of the Customer to prove that the performance was defective at the time of acceptance.
14. Declaration of Consent
The Customer agrees that the mission/assignment carried out with the Customer may be included as a reference in public relations and/or advertising for ED, as well as for ED group companies that ED has used in the execution of the mission/assignment. Specifically, this means that the content of the completed mission or assignment can be represented as required by ED or the respective ED group company, and that ED or the respective group company shall be free to choose its preferred communication channels.
Furthermore, the Customer agrees that the data content generated during the mission or the assignment, including images and recordings – in the form of excerpts and without prejudice to the Customer’s sensitive data – may be used by ED as well as ED group companies used by ED for the execution of the mission/assignment, for marketing purposes, in particular public relations videos, as well as for internal software and system development purposes, unless otherwise contractually agreed on an individual basis.
This provision shall remain in force beyond the duration of the contractual relationship.
15. Data Protection – Joint Responsibility
ED and the Customer agree to jointly process the personal data collected in the context of the performance of Unmanned Aerial Systems (UAS) services and generated by the image capture of natural persons within the meaning of the General Data Protection Regulation (“GDPR”) (“Joint Processing”). ED and the Customer shall jointly determine the purposes and means of Joint Processing and are therefore jointly responsible parties within the meaning of the GDPR. For more information, in particular on the categories of processed personal data, please refer to ED’s data protection policy at https:/www.eurodragons.at/data-protection.
ED and the Customer mutually agree to the following assignment of the performance of the data protection obligations as jointly responsible parties:
- Principles of Data Processing, Information Obligations and Provision of Essential Content
The Customer shall ensure compliance with the principles of data processing as well as the information obligations pursuant to Articles 13 and 14 of the GDPR vis-à-vis the data subjects and inform them of joint processing. In this context, the Customer shall also provide the data subjects with the essential contents of this Section (15) of the GTC.
- Data Subject Rights
The Customer shall ensure that lawful requests from data subjects are met, such as regarding their rights of access, rectification, erasure, restriction of processing, data portability and objection (Articles 15-22 of the GDPR).
The Customer shall be notified by ED of any data subject inquiries directed to ED.
- Data Protection Impact Assessment
Any necessary data protection impact assessments shall be carried out by the Customer. ED shall assist in this process to the necessary extent.
- Notification of Personal Data Breaches
All notifications of personal data breaches shall be made by the jointly responsible party which first became aware of the personal data breach. The other jointly responsible party shall cooperate in this process to the necessary extent.
- Other Obligations under Data Protection Law
Without prejudice to the foregoing, ED and the Customer shall ensure that all data protection obligations under the GDPR (in particular data security requirements under Article 32 of the GDPR) and national law are complied with for each processing step they take within the framework of Joint Processing.
- Liability
Without prejudice to the provisions of Section 12, the Customer shall indemnify ED and hold it harmless for any and all liabilities incurred by ED as a result of Joint Processing, to the extent that the Customer is at fault for the incurrence of the liability.
- Provision of a Point of Contact
If there are any questions regarding this agreement, data subjects may contact the Customer as a point of contact.
16. Personal Rights
Insofar as the personal rights of third parties are affected by the mission/assignment, the Customer undertakes to obtain any effective consent from third parties necessary for the execution of the mission/assignment.
17. General Provisions
Written form requirement:
Any amendment, supplement or other notifications concerning the contract shall be in writing. Handwritten amendments, supplements or notifications shall not be deemed valid.
Severability:
The invalidity or illegality of any provision of this GTC or of the contract concluded on the basis thereof shall not affect the validity of the remaining provisions of this GTC or of the contract concluded on the basis thereof. The invalid or unlawful provision shall be replaced by such provision which is mutually agreed upon by the contracting parties and which comes closest to the invalid or unlawful provision regarding its economic content.
Supplemental contract interpretation:
In the event of an existing or future loophole that must be closed in this GTC or in the contract concluded on the basis thereof, the parties shall agree to define a mutually acceptable provision.
18. Applicable Law, Place of JuriEDiction
This GTC and the contracts concluded on the basis thereof shall be governed exclusively by Austrian law, excluding the rules on the conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
The exclusive juriEDiction of the competent court in the first district of Vienna shall be deemed agreed for all disputes arising from and in connection with contractual relationships between ED and the Customer.
Part II – GTC for Flight Consulting Services
1. Scope
These General Terms and Conditions (“GTC”) shall apply, as amended from time to time, to all contracts concluded between the Customer and EuroDragons Sales and Holding GmbH (hereinafter referred to as “ED”), concerning services for the generation of data and aerial photographs and their recording using unmanned and manned aerial vehicles.
This GTC is exclusive and binding and shall apply to all current and future business relationships with the Customer. Provisions in contradiction to this GTC shall be deemed invalid.
Provisions deviating from or supplementing this GTC shall only become part of the contract on an individual basis if they are expressly confirmed by ED in writing.
This GTC shall remain valid even in the event that ED performs services without any reservations in the knowledge that the Customer’s terms and conditions conflict with or deviate from this GTC.
Terms and conditions of the Customer shall only apply if they have been expressly accepted by ED in writing.
2. Cost Estimates, Offer, Acceptance
Cost estimates prepared by ED are principally subject to a fee, non-binding and subject to change, unless otherwise agreed on an individual basis.
Cost estimates are prepared by ED to the best of its expert knowledge; however, no guarantee can be given as to their correctness. ED shall notify the Customer immediately of cost increases exceeding 15%.
Offers from ED are made on the basis of the information provided by the Customer and are generally subject to change. The Customer shall undertake to provide ED with all information necessary for preparing the offer as well as executing the contract (e.g., contact person; invoice address, if different; invoice text; etc.) in the manner requested by ED. This information shall be provided in writing unless otherwise agreed.
The contract shall be deemed concluded when the Customer provides acceptance in writing, or if the Customer issues the offer/order, when ED confirms the assignment in writing.
3. Service Provision
The scope of a contract for specific consulting services shall be subject to an individual contractual agreement.
ED shall be entitled to have the tasks, for which it has been contracted, performed in whole or in part by third parties.
If the consulting contract is fulfilled at the Customer’s place of business, the Customer shall ensure that the organizational framework conditions allow for undisturbed work conducive to the rapid progress of the consulting process.
The Customer shall ensure that ED is provided with all documents and information necessary for the fulfillment and execution of the consulting contract in a timely manner, and that ED is informed about all processes and circumstances that are necessary for the proper performance of the consulting services. This shall also apply to documents and information that only become known during ED’s performance of the contract.
ED shall not be subject to instruction in the provision of the agreed service and shall act at its own discretion and under its own responsibility. ED shall not be bound to any particular place of work or working hours.
4. Performance Deadlines, Delay
The performance dates and deadlines shall be subject to an individual contractual agreement.
In the cases of force majeure or other unforeseeable and unavoidable events, such as illness or accident of the respective ED consultant(s), ED shall be entitled to postpone deadlines without this constituting a delay in performance. The Customer shall not be entitled to assert claims for damages in such cases.
Agreed performance deadlines or dates shall be rescheduled whenever possible. Unless these have been expressly agreed as binding, they shall be deemed non-binding and shall be understood as the time at which the consulting service is provided and delivered to the Customer.
5. Copyrights and Rights of Use
ED shall be exclusively entitled to hold all copyrights to the works (presentations, drafts, reports, other documents, etc.) created by ED within the scope of its consulting services. The Customer is granted a right of use, unrestricted as to time and place, to works created for the Customer, which is not transferable to third parties, unless otherwise contractually agreed. The right to exploit, reproduce, disseminate or make available the works is expressly not included.
The use of the works, including excerpts or parts thereof, for purposes other than those agreed in individual contracts, in particular commercial use, is expressly prohibited. ED shall not be held liable towards third parties.
6. Terms of Payment, Rights of Set-Off
Unless otherwise contractually agreed, ED is entitled to invoice a down payment of 20% of the offer amount upon conclusion of the contract.
The invoice shall be issued upon fulfillment of the contract. The payment of the invoiced amount is due no later than 14 days from the invoice date without deductions, unless otherwise contractually agreed. Statutory default interest shall be charged in the event of default in payment.
The Customer shall not be entitled to offset against claims asserted by ED (prohibition of set-off). Offsetting by the Customer shall only be permitted if the Customer’s claims have been legally established with res judicata effect or are acknowledged by ED.
If the payment deadline is missed in the event of default, the provision of services may be restricted.
7. Liability
To the extent permitted by law, ED shall not be liable for damage caused by minimal negligence, with the exception of personal injury. Liability for loss of profit and non-material as well as indirect/consequential damage or damage to third parties is excluded. ED’s liability shall be limited to the contractual amount per contract.
Should the Customer provide personnel for the execution of assignment, ED shall not be held liable for these personnel (operation, expertise, result, etc.).
ED shall not assume any liability in case of errors on data media or files that occur during the importing of files to the Customer’s system.
8. Warranty
ED shall provide its consulting services in accordance with the contract and to quality standards customary in the market.
ED shall not be held liable for defects that are due to insufficient provision of information or cooperation by the Customer. ED shall notify the Customer of any obvious lack of information or of the need for its cooperation.
The warranty period for consulting services shall be six months. Section 924 of the Austrian Civil Code (ABGB) shall not apply by mutual agreement.
Changes and further developments of the generally accepted professional principles in the field of management consulting which have taken place after the time of the provision of the consulting service shall not be taken into account when assessing the correctness and completeness of the consulting services.
9. ED’s Right of Withdrawal
ED shall be entitled to withdraw from the contract if (a) the provision of the consulting service becomes impossible for reasons within the Customer’s sphere of influence or is further delayed despite the setting of a reasonable deadline or (b) judicial insolvency proceedings are initiated against the Customer’s company, or a bankruptcy petition is dismissed for lack of assets to cover costs.
Without prejudice to further claims for damages, ED shall be entitled to demand payment for services already rendered or to retain any down payments received.
10. Declaration of Consent
The Customer agrees that its name or company may be included by ED as a reference in public relations and advertising for ED, as well as for ED’s group companies, which ED has used in the provision of its services, on all suitable communication channels, unless otherwise stipulated in individual contracts. ED reserves the right to freely select the communication channels suitable for this purpose.
This provision shall remain in force beyond the duration of the contractual relationship.
11. Secrecy
Both ED and the Customer shall be obligated to keep secret all information concerning the respective other contracting party, which is not generally known and has become known to them within the framework of the contractual relationship, and to transfer this obligation to their employees and other third parties working for them. This duty of confidentiality shall also apply subsequent to the termination of the contractual relationship.
12. Data Protection and Personal Rights
The Customer acknowledges that ED collects, stores and processes the data disclosed by customers (name, address, e-mail, credit card data, data for account transfers, telephone number) and, if applicable, data of its employees for the purpose of contract performance and support. The Customer can find more detailed information on the type and scope of data processing as well as on its corresponding rights under data protection law at https://www.eurodragons.at/data-protection.
Insofar as the personal rights of third parties are affected by the contract, the Customer undertakes to obtain any effective consent from third parties necessary for the execution of the contract.
13. General Provisions
Written form requirement:
Any amendment, supplement or other notification regarding the contract shall be in writing. Handwritten amendments, supplements or notifications shall not be deemed valid.
Severability:
The invalidity or illegality of any provision of the GTC or of the contract concluded on the basis thereof shall not affect the validity of the remaining provisions of the GTC or of the contract concluded on the basis thereof. The invalid or unlawful provision shall be replaced by a provision which is mutually agreed upon by the contracting parties and which comes closest to the invalid or unlawful provision regarding its economic content.
Supplementary contract interpretation:
In the event of an existing or future loophole in this GTC or the contract concluded on the basis thereof, the parties shall agree to define a mutually acceptable provision.
14. Applicable Law, Place of JuriEDiction
This GTC and the contracts concluded on the basis thereof shall be governed exclusively by Austrian law, excluding the rules on the conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
The exclusive juriEDiction of the competent court in the first district of Vienna shall be deemed agreed for all disputes arising from and in connection with contractual relationships between ED and the Customer.
