1.1 Birdi Pty Ltd (ABN 64 614 016 929) (Birdi, us, we or our) is the owner of the website https://www.birdi.io and affiliated websites, and you are either an Account holder or a person accessing or using our website or our Services (you or your), together the Parties.
1.2 BIRDI owns the cloud-based software platform and marketplace, including all rights to the IP and content, which is accessible on our website or mobile application (Platform).
2.1 These Terms and Conditions (Terms) set out the terms and conditions:
2.1.1. which you agree to use our Platform, including its contents, the Services and your Account;
2.1.2. which we agree to grant you a right to use the Software as described on our Platform, and
2.1.3. which we agree to provide any other services or products as set out in these Terms.
2.2. These Terms are binding on you from the date you start accessing or using our Platform or any Services until the earlier of:
2.2.1 the date on which you stop accessing or using our Platform or the Services, or
2.2.2. your Account is terminated in accordance with these Terms.
2.3. You should review these Terms and our Privacy Policy (available on our Platform) carefully and immediately cease using our Platform and terminate your Account if you do not agree to these Terms or our Privacy Policy.
2.4. By creating an Account, or accessing or using our Platform or the Services, you:
2.4.1. warrant to us that you have reviewed these Terms and our Privacy Policy; and
2.4.2. subject to clause 3, warrant to us that you have the legal capacity to enter into a legally binding agreement; or
2.4.3. warrant to us that you have the authority to act on behalf of any person or entity for whom you are accessing or using our Platform and the Services, and you are deemed to have agreed to these Terms on the person or entity’s behalf; and
2.4.4. warrant to us that you have all things (including hardware and software) necessary to use the Platform and any Services; and
2.4.5. agree to use our Platform and the Services in accordance with these Terms.
3.1. If you are under the age of 18 (Minor), by creating an Account, or accessing or using our Platform or the Services, you:
3.1.1. warrant to us that you have reviewed these Terms and our Privacy Policy with your parent or legal guardian; and
3.1.2. you have your parent’s or legal guardian’s permission to access or use our Platform or the Services and they have agreed to these Terms on your behalf.
3.2. If you are a parent or guardian permitting a Minor to create an Account and/or use the Services, you agree to:
3.2.1. exercise supervision over the Minor’s access to and use of our Platform, the Services and their Account;
3.2.2. assume all risks associated with and liabilities resulting from, the Minor’s access to and use of our Platform, the Services and their Account;
3.2.3. ensure that the content and information that the Minor may encounter on our Platform is suitable for the Minor;
3.2.4. ensure the accuracy and truthfulness of all information submitted by the Minor; and
3.2.5. provide the consents, representations and warranties contained in these Terms on behalf of the Minor.
3.3. If you are a Minor, we may ask you to confirm that you have your parent’s or guardian’s permission and that they have agreed to these Terms on your behalf, and, even if we do not do this, we will assume that this is the case and will provide access to our Platform, the Services and your Account on this basis.
4.1. You may need to be a registered member to access or use certain features of our Platform or the Services. To become a registered member, you will be required to create an account (Account).
4.2. You, as an Account holder, may be:
4.2.1. a company, firm, organisation or individual that operates a Drone (Pilot); and/or
4.2.2. a company, firm, organisation or individual that requires or requests the use of a Drone and the services of a Pilot (Client).
4.3. When creating your Account, you will provide us with personal information such as your name, email address, telephone number, location and preferences. You must ensure that this information is accurate and kept current. We will handle and store all personal information we collect in accordance with our Privacy Policy.
4.4. When creating your Account, we will provide you with a username and password and specify whether you are a client or a pilot. You must keep your username and password secure at all times and you are liable for all use and activity carried out under your user name and Account. You must immediately notify us of any unauthorised use of your Account.
4.5. At our sole discretion, we may refuse to allow any person to create an Account or cancel an Account.
5.1. On the Platform Pilots can access requests for drone services submitted by Clients. We refer to these job requests as Missions (Missions).
5.2. We provide the Platform to assist Clients and Pilots complete Missions, we facilitate payments in relation to Missions (as a limited collection agency) and handle disputes.
5.3. Amongst other services the Platform includes a marketplace where:
5.3.1. Client wanting a Mission to be carried out by a Pilot may submit a request for a Mission via the relevant part of the Platform, which includes details of the Mission (including by filling in all the required fields) (Mission Request). Those details are outlined in the Platform but may include:
5.3.1.1. Location of the job; and
5.3.1.2. Details of the Client; and
5.3.1.3. Outline of the data to be collected and other information relating to the services to be performed and the data to be captured, including angles, fly-throughs; and/or
5.3.1.4. Analytics required including but not limited to 2D map/livestream/3D map/360 degree etc. as outlined in the options on the Platform; and/or
5.3.1.5. Any Pilot specifications.
5.3.2. The Platform sends to the Client a summary, scope and price for the Mission (Mission Summary). The Client accepts or rejects the Mission Summary, in its discretion.
5.3.3. If the Client accepts the Mission Summary it will form the Mission. The price for the Mission will form the Mission Fee (Mission Fee).
5.3.4. Upon accepting the Mission and MIssion Fee the Client gives us authority to allocate the Pilot.
5.3.5. The Client accepts or rejects the Mission (including the Mission Fee), in its discretion. At this point it is deemed to have agreed to enter into a legally binding contract with the Pilot on the basis of the Terms.
5.3.6. Pilots are selected by us on a case by case basis to perform Missions. We identify the Pilot that we consider (in our discretion) to be the most suitable Pilot.
5.3.7. The Pilot accepts or rejects the Mission, in its discretion. If the Pilot accepts the Mission, it confirms that it is legally entitled to and capable of carrying out the Mission and, subject to acceptance by the Pilot as set out below, is deemed to have agreed to enter into a legally binding contract with the Client on the basis of these Terms to perform the Mission.
5.3.8. We will notify the Client of the Pilot’s acceptance and provide the Client with the Pilots details, at this point an Accepted Mission (Accepted Mission) is created.
5.3.9. Once an Accepted Mission has been created, the Pilot agrees to carry out the Accepted Mission in accordance with the Mission Contract and these Terms.
5.4. The contract between the Client and the Pilot for the Accepted Mission constitutes a Mission Contract. For the avoidance of doubt, we are not a party to any agreement entered into between a Client and a Pilot, including any Mission Contract.
5.5. The Mission Fee will vary depending on the requirements in the Mission Summary. Factors affecting the Mission Fee may include the complexity of regulatory requirements, flight location, flight time, equipment used (including the type of Drone) and expertise of the Pilot required to capture certain types of Data.
5.6. The Pilot agrees to use its best endeavours to capture the best possible data, which include any information that is captured by a Drone whilst in operation as outlined in the Accepted Mission.
5.7. The Client acknowledges and agrees that there are conditions outside of the Pilot’s reasonable control that can affect the quality of the data captured, including shadows, activity on-Site, specific on-Site shot direction/requests, haze, sun glare, and Civil Aviation Safety Authority (CASA) imposed restrictions.
5.8. Unless otherwise agreed, reasonable notice is required for all cancellations or rescheduling of Missions by the Client and/or the Pilot. Cancelation, termination and rescheduling fees may apply.
5.9. If the Pilot is not able to carry out the Mission due to inclement weather (including rain or strong winds) or safety concerns from the Pilot’s assessments of the Site (acting reasonably), the Pilot may reschedule the Mission, without penalty, by providing notice to the Client and us via the Platform. Rescheduling or additional fees may apply to the Client.
5.10. The Client and the Pilot agree to use their best endeavours to reschedule any Mission.
5.11. Once the Pilot has carried out the Accepted Mission, it uploads the mission data via the Platform. We will provide the data to the Client via the Platform. The Client may download the mission Data.
5.12. Completion is when the Pilot has carried out the Accepted Mission including uploading the requested data to the Platform in accordance with the Mission Contract (Completion).
6.1. The Client agrees to pay the Missions Fee in relation to an Accepted Mission. We will invoice the Client.
6.2. Upon Completion after receiving payment from the Client, we will pay the Mission Fee on behalf of the Client to the Pilot.
6.3. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.
6.4. The Pilot appoints us as the Pilot’s limited payment collection agent solely for the purpose of accepting the Mission Fees from the Client.
6.5. The Pilot agrees that payment of Mission Fees by a Client to us (as the Pilot’s limited payment collection agent) is to be considered the same as payment made directly by the Client to the Pilot.
6.6. The Pilot agrees that our obligation to pay the Pilot is subject to and conditional upon successful receipt of the relevant payments from Clients.
6.7. We guarantee payment to the Pilots only for such amounts that we have successfully received from Clients in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Pilot, we assume no liability for acts or omissions of the Pilot. The Pilot agrees that we may credit Clients in accordance with these Terms.
6.8. In the event that we do not remit Mission Fees to the PIlot as set out in this Mission section and we have received the Mission Fees from the Client, the Pilot will only have recourse against us and not the Client directly.
6.9. All Mission Fees exclude GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in Australia and in your own country (if not Australia), and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
7.1. The Client must issue a Notice of Dispute (see below) to us within [7] days if it considers that there are any non-compliances of the Mission Data with the Accepted Mission, failing which the Accepted Mission will be deemed to have reached Completion.
7.2. You agree to deal with the cancellation of any Accepted Mission, or refund of any Mission Fee on this Platform in accordance with the following provisions:
7.2.1. Within 2 working days of Completion either the Client or the Pilot may contact us if it has an issue with respect to an Accepted Mission (Notice of Dispute);
7.2.2. We will use our best endeavours to facilitate the resolution of the matters the subject of a Notice of Dispute.
7.2.3. To the extent that we are unable to facilitate a resolution, the Pilot and the Client agree that we may make a determination of the matters the subject of the Notice of Dispute.
7.2.4. To the maximum extent permitted by law, and subject to any rights of the Pilot or the Client under the Mission Contract, any determination we make will be final and binding.
7.2.5. If the Notice of Dispute involves the Client alleging that Completion has not occurred, and we:
7.2.5.1. determine that Completion has occurred, the Client agrees to pay the relevant Mission fee immediately; or
7.2.5.2. determine that Completion has not occurred, and the Client may elect whether to cancel the Accepted Mission, in which case the Mission Fee will be credited to the Client, or request that the Pilot carry out the Mission (or the relevant part of the Mission) again and the Pilot, unless it has reasonable reasons for not doing so (in which case, the Accepted Mission will be cancelled and the Mission Fee will be credited to the Client) agrees to do so within a reasonable period of time.
7.3. Nothing in these Terms limits or affects any rights that a Pilot or a Client may have at law (including to commence proceedings) in relation to the Mission Contract between the Pilot and the Client.
7.4. To the maximum extent permitted by law, the Client and the Pilot agree to not commence any proceedings of any kind against us in relation to the Mission Contract (including a breach or failure to fulfil an obligation under the Mission Contract by the relevant party to the Mission Contract) and we may rely on this paragraph as a bar to any proceedings brought against us.
8.1. We may contact you via the Platform using in-account notifications, or via off-Platform communication channels, such as a phone call, text message or email.
8.2. The Client and the Pilot may communicate with each other outside of the Platform; however, they must not use the contact details provided by us to organise the provision of Missions off the Platform.
9.1. You represent, warrant and agree that:
9.1.1. you will not use our Platform, including its Content in any way that competes with our business;
9.1.2.you will not circumvent us in any way, including Pilots or Clients;;
9.1.3. there are no legal restrictions preventing you from entering into these Terms;
9.1.4. all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
9.1.5. you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
9.1.6. you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform:
9.1.6.1. to break any law or infringe any person’s rights (including intellectual property rights)
9.1.6.2. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
9.1.6.3. in any way that damages, interferes with or interrupts the supply of the Platform.
9.1.7. where you are a Client, you are responsible for complying with all laws, rules and regulations which apply to requesting the services in your Mission Requests;
9.1.8. where you are a Pilot, you are appropriately qualified and insured, and have any required skills, knowledge or training, to carry out the Accepted Missions; and
9.1.9. where you are the Client, you have all necessary consents, approvals, licences and authorisations in relation to an Accepted Mission, including to grant the Pilot access to the site, premises or location where the Accepted Mission is intended by the Client to be carried out.
9.2. The Pilot agrees to affect public liability insurance, or equivalent, on or prior to accepting these Terms and to maintain such insurance for a reasonable period of time after termination of the Pilot’s account, to a minimum level of 20 million dollars. We may offer insurance as a service in accordance with Clause 13.
9.3. The Pilot agrees that it must at all times be compliant with all applicable federal aviation laws including any rules and regulations established CASA. The Pilot agrees that it must, at all times, comply with all Drone registration and licensing requirements, as determined by CASA.
9.4. The Pilot must comply with all applicable laws (including to operate the Drone legally and safely, and in accordance with any restrictions imposed by CASA). Should the Mission be affected by any CASA restrictions (including restricted air space and no fly zones), discussion between our operations team, the Pilot and the Client will occur to determine the best possible outcome.
10.1. In consideration for your payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the SaaS Services for personal and commercial use, during the term relevant to your Plan (SaaS Licence).
10.2. You agree that:
10.2.1. the SaaS Licence permits you to use the SaaS Services in accordance its normal operating procedures;
10.2.2. the SaaS Licence permits you to access and use the SaaS Services via your Account or otherwise agreed by us; and
10.2.3. we reserve the right at any time and from time to time to:
10.2.3.1. refuse any request in relation to the SaaS Services that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms;
10.2.3.2. modify or discontinue access to the SaaS Services (or any part thereof) with notice; and
10.2.3.3. change or remove features of the SaaS Services provided that, for any material alterations we will provide you with 14 days’ notice.
10.3. You agree to not access or use the SaaS Services except as permitted by the SaaS Licence and to not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights in the SaaS Services. You must not and must not permit any other person to:
10.3.1. resell, assign, transfer, distribute or provide others with access to the SaaS Services;
10.3.2. “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
10.3.3. copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software;
10.3.4. use the SaaS Services in any way which is in breach of any applicable laws any person's rights, including intellectual property rights;
10.3.5. use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
10.3.6. use the SaaS Services to carry out security breaches or disruptions of a network.
10.3.7. send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”);
10.3.8. use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers; or
10.3.9. solicit or entice away, any person or organisation that was our actual or prospective, client, employee, contractor, representative, agent, or developer during the Term and for a period of twelve months after the Term.
11.1. You agree to:
11.1.1. provide us with all reasonable assistance and cooperation in order for us to supply the Services;
11.1.2. ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
11.1.3. make any changes to your computing environment, including all Systems, information technology and telecommunications services (Computing Environment), such as system upgrades, that may be required to support the delivery and operation of the Services.
12.1. Once you have set up your Account in accordance with these Terms, you may choose to purchase additional storage by selecting one of the following Plans:
12.1.1. Plus;
12.1.2. Premium; or
12.1.3. Ultra, (together the Plans and each a Plan).
12.2. You must pay us the fee relevant to your Plan (Fee) and any other amount payable to us under these Terms, without set off or delay, via credit card or any other payment method set out on our Platform.
12.3. The Fee for your Plan is payable in advance of the next billing cycle for your Plan and any additional charges will be billed in arrears at the end of the Plan cycle (unless otherwise agreed).
12.4. You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on our Platform.
12.5. You agree that the Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.
12.6. We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Plan. Any trial period (and the features available during this period) can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services.
12.7. If you upgrade or downgrade your Plan, the credit card linked to your Account will automatically be charged the Fee for your new Plan in advance of your next Plan billing cycle. Please ensure that this credit card has sufficient funds to pay the Fee. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee for the Plan, which will accrue to your Account until we receive a notice from you of your intention to cancel the Plan or your Account.
12.8. All Fees exclude GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in Australia and in your own country (if not Australia), and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
12.9. The Fee is subject to change upon 30 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Platform, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with these Terms.
12.10. If any payment is not made in accordance with our above payment terms, we may (at our absolute discretion) immediately cease providing the Services to you, suspend our Account and recover as a debt due and immediately payable from you our additional costs of doing so.
13.1. We may, from time to time, provide an additional service (which forms part of the Services) by offering an opportunity for you to purchase a public liability insurance policy via our Platform (Insurance).
13.2. You acknowledge and agree, in relation to the Insurance, that:
13.2.1. the Insurance that we may offer to you will be on the terms of a group policy (Group Policy) that is underwritten by CGU Insurance Limited (ABN 27 004 478 371) (CGU);
13.2.2. under the Group Policy:
13.2.2.1. SURA Film and Entertainment Pty Ltd (ABN 36 115 672 350) (SURA) is an authorised representative and agent of CGU;
13.2.2.2. we are the Group Purchasing Body (GPB) and the holder of the Group Policy; and
13.2.2.3. you are a third-party beneficiary (TPB) (as defined under section 48 of the Insurance Contracts Act 1984 (Cth)).
13.2.3. as the GPB:
13.2.3.1. we may issue the Insurance to you but we are not the insurer;
13.2.3.2. we are not an agent and we are not authorised (and we do not any receive payments from SURA or CGU) to act on behalf of SURA or CGU;
13.2.3.3. we hold the Group Policy on behalf or on trust for you;
13.2.3.4. we do not provide any financial product or insurance advice to you in offering the Insurance, in particular:
13.2.3.4.1. we do not intend to influence you in making any decision in relation to the Insurance;
13.2.3.4.2. we do not provide any advice on our Platform or otherwise in relation to the Insurance; and
13.2.3.4.3. you should seek you own independent insurance advice before purchasing the Insurance; and
13.2.3.4.4. we are not authorised to amend or negotiate the policy terms of the Insurance.
13.3. You may purchase an Insurance via our Platform and/or your account Plan. You acknowledge and agree that the fee payable by you to us to purchase the Insurance (Insurance Fee) is separately identifiable from any other Fees payable by you in relation to the Plan (i.e., for cloud storage).
13.4. We agree to pay an amount equivalent to the Insurance Fee to SURA (less any of our reasonable costs in acting as the GPB). In other words, other than our reasonable costs in acting as the GPB, we do not receive any payment, remuneration or other benefit from you by you purchasing the Insurance that is additional to the amount payable by us to SURA for the Insurance.
13.5. Before selecting to purchase the Insurance, you should read the Insurance policy and seek independent insurance advice to ensure that the Insurance (including the level of cover) is right for you and appropriate for your purposes. If you have any questions regarding the Insurance (including whether you have an entitlement to make a claim under the Insurance) you should contact SURA directly.
13.6. You agree that all claims under the Insurance are to be made to SURA and not us and we will have no responsibility to bring any claim on your behalf. The risk of a valid claim, and the obligation to pay any insured amount, under the Insurance remains with SUPA and/or CGU and we will not be responsible, in any way whatsoever, for any claim or for paying any insured amount under the Insurance.
13.7. This section of these Terms is subject to the terms and conditions specified in the relevant policy of Insurance and any other terms and conditions relevant to the Insurance.
13.8. Find the Product Disclosure Statement here.
14.1. We collect personal information about you in order to provide you with access to our Platform and the Services and for purposes otherwise set out in our Privacy Policy. By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in the Privacy Policy and these Terms.
14.2. Our Privacy Policy explains:
14.2.1. how we store and use, and how you may access and seek correction of / correct your personal information;
14.2.2. how you can lodge a complaint regarding the handling of your personal information; and
14.3. how we will handle any complaint.
14.3. you would like any further information about our Privacy Policy, please contact us at support@birdi.io
15.1. You grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to:
15.1.1. use the information, documents and other data you provide to us or upload to the SaaS Services or which we otherwise access in providing the Services and including any Mission Data (Data) and any intellectual property rights in the Data, including:
15.1.2. supply the Services and to perform our obligations under these Terms;
15.1.3. for diagnostic purposes and to test, enhance and otherwise modify the Services; and
15.1.4. to develop other services.
15.2. If you have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any Data, you consent to the infringement of those Moral Rights by us or our personnel.
15.3. You agree to ensure the integrity and your use of your Data is compliant with all laws. You represent and warrant that:
15.3.1. you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and
15.3.2. your Data and our use of it under these Terms does not violate any laws and any use is not inconsistent with our Privacy Policy.
15.4. We are not liable for your Data, and you shall be solely responsible for your Data.
15.5. Despite anything to the contrary in these Terms, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services (Analytics). You agree that we may make such Analytics publicly available, provided that they:
15.5.1. do not contain identifying information; and
15.5.2. are not compiled using a sample size small enough to make the underlying data identifiable.
15.6. As between the Parties, we own all right, title and interest in and to the Analytics and all related software, technology, documentation and content (including intellectual property rights).
16.1. As between the Parties, all intellectual property (including copyright, designs, patents, trademarks and other intellectual property rights) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software, the Services and including all of the content and material on our Platform, including all text, graphics, logos and audio, excluding the Mission Data and any deliverables of the Accepted Mission will at all times vest, or remain vested in us.
16.2. As between the Client and the Pilot, all intellectual property (including copyright, designs, patents, trademarks and other intellectual property rights) in the Mission Data and any deliverables of the Accepted Mission will at all times vest, or remain vested in the Client. The Client grants the Pilot a royalty free, revocable, non-transferable and non-sublicensable licence to use the Mission Data and any deliverables of the Accepted Mission for the purposes of carrying out the Accepted Mission and as reasonably contemplated by these Terms.
16.3. Your use of our Platform and use of and access to any Content does not grant or transfer any rights, title or interest to you in relation to our Platform or the Content. However, we do grant you a limited, royalty free, revocable, non-transferable and non-sublicensable licence to use the Services and the Content solely for the purposes of accessing and using our Platform and the Services, in accordance with these Terms.
16.4. Any reproduction or redistribution of our Platform or the Content is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution. All other use, copying or reproduction of our Platform, the Content or any part of it is prohibited, except to the extent permitted by law.
16.5. This section will survive termination of these Terms.
17.1. You agree not to use our Platform or the Services inappropriately or unlawfully, in particular, you agree not to do:
17.1.1. breach any third-party rights of any person (including uploading personal information without an individual’s consent) or any other of the legal rights of individuals;
17.1.2. use our Platform to defame or make derogatory statements about us, our personnel or other individuals;
17.1.3. upload files that contain viruses that may cause damage to our property (including our Platform) or the property of other individuals; or
17.1.4. post on or transmit to our Platform any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our, or any third party’s systems or security.
17.2. At our sole discretion and without notice, we have the right to take down any information that you post on our Platform or on the Software.
18.1. Certain legislation, including the Australian Consumer Law (ACL) and the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
18.2. If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
18.3. The information on our Platform is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of information on our Platform, subject to your Statutory Rights, we exclude all express and implied warranties, and all material, information, documents and services (including the Services, our Platform and the Content) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
19.1. Despite anything to the contrary, to the maximum extent permitted by the law:
19.1.1. our maximum aggregate liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid to us in the year in which the liability arose; and
19.1.2. we will have no liability for any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
19.2. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against any liability caused or contributed to by, arising from or connected with:
19.2.1. any damage, injury or loss to any person or property (including any drone) or to your Computing Environment;
19.2.2. the Services being unavailable, any outage or interruption or any delay in us providing the Services to you, for whatever reason;
19.2.3. your or your personnel’s acts or omissions;
19.2.4. any breach by you (or any of your personnel) of any third-party rights (including intellectual property rights or privacy) or of any privacy or confidentiality obligations;
19.2.5. any claim that you have or may have under the Insurance;
19.2.6. any use or application of the Services (including the Platform Services), the Platform, the Software, your Account, the Content or our Platform by a person or entity other than you, or other than as reasonably contemplated by these Terms;
19.2.7. any third parties or any goods and services provided by third parties, including customers, end users, suppliers, providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
19.2.8. your choice of the Insurance and/or the appropriateness or suitability of the Insurance for any purpose;
19.2.9. any Accepted Mission, Mission Contract or any breach or failure by a Client or a Pilot to fulfil an obligation under the Mission Contract; or
19.2.10. any event outside of our reasonable control.
19.3. Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
19.3.1. any claim (whether valid or otherwise) made by you under the relevant policy of Insurance;
19.3.2. your Data; and
19.3.3. your use of our Platform, the Services or any breach of these Terms by you.
19.4. You agree that:
19.4.1. you are responsible for all users using the Services;
19.4.2. your use of our Platform and the Services is at your own risk;
19.4.3. the Services, including your Data, may be transferred unencrypted and over various networks;
19.4.4. we may use third-party service providers to host the Services. If the providers of third-party applications or services cease to make their services or programs available on reasonable terms, we may cease providing the Services (or any part of the Services) without liability or entitling you to any refund, credit, or other compensation;
19.4.5. we may pursue any available equitable or other remedy against you if you breach of these Terms.
19.5. This section will survive termination of these Terms.
20.1. You may only terminate your Account by emailing us at support@birdi.io. No refunds will be given upon termination in accordance with this section.
20.2. We may, at any time and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the SaaS Services is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Services or other users, we may suspend or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of these Terms. If we suspend your Account and you are not in breach of these Terms, we will apply a credit to your Account for the Fees you have paid for any unused portion of your Plan to which the period of suspension relates. If we terminate your Account and you are not in breach of these Terms, we will refund you the Fees you have paid for any unused portion of your Plan. If we terminate your Account and you are in breach of these Terms, no refunds will be given.
20.3. We reserve the right to restrict, suspend or terminate without notice your access to our Platform, your Account, any Content, or any feature of our Platform at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
20.4. Upon expiry or termination of these Terms or termination of your Account:
20.4.1. we will remove your access to the Platform;
20.4.2. we will immediately cease providing the Platform Services to you; and
20.4.3. where you are a Pilot, we will cancel any existing Accepted Missions and you will lose any Mission Fees and other amounts paid.
20.4.4. where you are a Client, we will cancel any existing Accepted Missions and refund any relevant Mission Fees.
20.5. Where you are a Pilot or a Client and you have a Mission Contract on foot, and the other Account holder’s Account is terminated for whatever reason, the relevant Accepted Mission will be terminated and any Mission Fees refunded or credited.
20.6. Your Plan will automatically renew at the end of the Plan period (and for the same Plan cycle) unless you terminate or change your Account prior to the renewal date.
21.1. For certain campaigns, promotions or contests, additional terms and conditions may apply. If you want to participate in such a campaign, promotion or contest, you need to agree to the relevant terms and conditions applicable to that campaign, promotion or contest. In case of any inconsistency between such terms and conditions and these Terms in relation to any campaign, promotion or contest, those terms and conditions will prevail.
22.1. Our Platform may contain links to websites operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites and have no control over or rights in those linked websites.
23.1. We may assign any rights or obligations under these Terms, whether in whole or in part, without your prior written consent.
23.2. We may, at any time and at our discretion, vary these Terms by publishing varied terms on our Platform. Such variation will take effect at the commencement of your next Plan billing cycle or unless otherwise specified. Prior to the commencement of each Plan billing cycle, we recommend that you carefully read the Terms that are in effect at that time to ensure you understand and agree to them.
23.3. Neither Party may commence court proceedings relating to any dispute arising from, or in connection with these Terms without first meeting with a representative of the other party to seek (in good faith) to resolve the dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
23.4. We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstances beyond our reasonable control.
23.5. Your use of our Platform and these Terms are governed by the law of New South Wales and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.
23.6. Any notice given under these Terms must be in writing and addressed to us at the details set out on the “Contact” page on our Platform or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
23.7. These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Mission section as limited payment collection agent) between the Parties.
23.8. If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
23.9. We may engage subcontractors, suppliers and others to perform the Services on our behalf, without your consent.
23.10. Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.
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