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Last Modified: April 16, 2018

 

The customer agreeing to these terms (“Customer”), and Aerotas LLC (“Aerotas”) (together known as the “Parties”), have entered into an agreement under which Aerotas has agreed to provide products, services, and/or related support to the Customer (the “Agreement”). These Terms and Conditions (the “Terms”) reflect the parties’ agreement with respect to the terms governing the delivery of the products, services, and support under the Agreement. These Terms supplement the Agreement.

1.      Hardware and Equipment

a.      Aerotas will provide the Customer with hardware and equipment necessary for the customer to perform mapping operations via Unmanned Aerial Vehicle (“UAV” or “Drone”) as defined in the Agreement.  Aerotas is responsible to furnish the Customer with all hardware and equipment specified in the Agreement, along with the software necessary to operate the hardware and equipment.

b.      Aerotas will deliver all Hardware and Equipment to the Customer at a mutually agreed upon date, which is usually the same date and location as in-person operator training. The equipment will be delivered to a suitable address specified by the Customer within the continental United States.

c.      The Hardware and Equipment is manufactured and produced by third-party manufacturers not affiliated with Aerotas.  Aerotas will make all reasonable efforts to ensure that the Hardware and Equipment functions as advertised, however Aerotas is not responsible for any faults or defects in the Hardware and Equipment.

d.      Aerotas does not offer any warranty beyond the original equipment manufacturer's warranty.  Any warranty claims or warranty service with the hardware and equipment should be made directly through the manufacturer and not through Aerotas.

2.      Insurance

a.      Aerotas will make all practicable efforts to secure an aviation insurance policy for the Customer as specified in the Agreement.  Aerotas does not guarantee that they will be able to successfully obtain insurance for the Customer. Aerotas is not an insurance broker.

b.      If specified in the Agreement, Aerotas agrees to pay for the first year of insurance premium for the Customer. Aerotas may determine, at their sole discretion, if insurance premiums are unusually high, and may  invoice the Customer for the additional cost.  The Customer may decline the invoice, in which case Aerotas is not required to attempt to obtain further insurance for the Customer.

c.      If Aerotas is unable to secure an insurance policy for the Customer, then Aerotas will refund the Customer in the amount of the expected first year insurance policy premium.

d.      After the first year’s insurance premium, the Customer is responsible for any and all ongoing insurance premiums and costs.

3.      Online Training

a.      Operations Training. Aerotas will provide the Customer with online UAV operator training for the number of persons specified in the Agreement. Aerotas Online Training is intended to provide a reasonable level of training and information for the basic safe and functional operation of UAV equipment. Aerotas is not responsible for any information that may have directly or indirectly caused the Customer to operate any UAV in an unsafe manner.

b.      FAA Certification Training. As part of the Online Training, Aerotas agrees to provide the Customer with information and materials intended to aid the Customer in studying for the FAA Unmanned Aircraft General (UAG) exam for a Remote Pilot Certificate with a small UAS rating.  Aerotas is not responsible for the cost of registering for nor taking the exam. Aerotas is not responsible for any costs or reimbursements if the Customer is unable to pass the FAA UAG exam.

4.      In-Person Training.

a.      Aerotas will provide the Customer with in-person training for the number of persons specified in the Agreement. In-person training includes both in-office training on the operation of UAV hardware and equipment, as well as hands-on flight training in the field.

b.      Time and Location. In-Person Training will take place on a date and at a location mutually agreed upon by Aerotas and the Customer. The date will be no sooner than 2 weeks after the Effective Date, unless otherwise specified in the Agreement.  Location will typically at a location chosen by and convenient to the Customer.

c.      Travel Costs.  Aerotas is responsible for the travel and lodging costs of all Aerotas employees and representatives.  The Customer is responsible for all travel and lodging costs for the Customer’s employees and representatives. 

d.      Training Delays. In the event that In-Person Training must be postponed or delayed by inclement weather, Aerotas will reschedule training for a future date mutually agreed upon by the Parties, at no additional cost to the Customer.

e.      Failure to Appear. If the Customer, for any reason, is unable or unwilling to appear for their scheduled In-Person Training after a date and location has been mutually agreed upon by the Parties, then Aerotas is not responsible to reimburse or refund the Customer for the cost of In-Person Training. The Customer may choose to reschedule In-Person Training for a future date for an additional fee.

5.      Support

a.      Aerotas will provide technical support to the Customer for all of the Hardware and Equipment included in the Agreement. Support consists of email and phone support during reasonable business hours.

b.      Term.  Aerotas will provide support to the Customer for as long as the customer is engaged in an active service contract with Aerotas, or for three months from the delivery of any equipment and training.

c.      Aerotas is not responsible to provide support for any hardware, equipment, or procedures that are not part of the Agreement.

6.      Photogrammetry Deliverables

a.      Files Delivered. Photogrammetry Deliverables consist of, at a minimum, an orthophoto and a digital elevation model. Both files will be delivered in .tif format unless otherwise agreed upon by the Parties.

b.      Resolution. Files will be delivered in full resolution, unless otherwise specified in the Agreement, or agreed upon by the Parties.

c.      Geolocation. Files will be delivered with embedded geolocation data corresponding to the ground control point data provided by the customer. If no ground control point data is provided for a single project, then files will be delivered with embedded geolocation data corresponding to the geolocation data embedded in the photos provided by the customer.

d.      Delivery Method. Files will be delivered via a web based cloud data provider of Aerotas’ choosing, unless otherwise specified in the Agreement.

7.      Linework Deliverables

a.      Files Delivered. Linework Deliverables consist of Computer-Aided Design (“CAD”) drawing files of relevant project data in .dxf or .dwg format.  Linework Deliverables may also include a CAD-friendly orthophoto at lower than full resolution.

b.      Included Data. Aerotas will include data in the Linework Deliverables consistent with what is laid out in the Agreement or in specific Price Quotes.

c.      Geolocation. Files will be delivered with embedded geolocation data corresponding to the ground control point data provided by the customer.

d.      Delivery Method. Files will be delivered either via electronic mail or via a web based cloud data provider of Aerotas’ choosing, unless otherwise specified in the Agreement.

8.      Accuracy

a.      Aerotas does not make any representation or guarantee related to the final accuracy of the Photogrammetry Deliverables nor Linework Deliverables. It is the Customer’s responsibility to verify the final accuracy of the Photogrammetry Deliverables and Linework Deliverables.

b.      Aerotas will, from time to time, provide estimates of the final accuracy of the Photogrammetry Deliverables or Linework Deliverables. These estimates are based from Aerotas’ professional judgement and experience and are not a guarantee of final accuracy. Actual accuracy may be significantly better or worse than Aerotas’ estimate.

9.      Aircraft Operation

a.      No guidelines or requirements specified in the Agreement or these Terms are to be construed as authority to operate aircraft or conduct operations in other than strict compliance with all federal, state, and local regulations in which an aircraft is registered or operated. It is the Customer’s ultimate responsibility to comply with any and all laws and regulations.

10.   Data Rights

a.      Aerotas agrees that it will not resell nor provide any of the Customer’s data to any other person or entity without the express written permission of the Customer.  Aerotas agrees to keep the Customer’s data confidential and to protect the confidentiality of such data with the same degree of care with which it protects the confidentiality of its own information, but in no event with less than a reasonable degree of care.

b.      All data supplied to Aerotas by the Customer is property of the Customer. The Deliverables provided to the Customer by Aerotas is the property of the Customer. The Customer hereby grants to Aerotas a nonexclusive, nontransferable license to use, reproduce, and modify Customer data solely in connection with Aerotas’ performance of Services and the production of the Deliverables.

11.   Fees and Payment Terms

a.      In consideration of the Services to be performed by Aerotas, Customer shall pay to Aerotas fees in the amounts and according to the Payment Terms, as set forth in the Agreement.

b.      If Customer fails to make a timely payment, Aerotas is not obligated to continue providing ongoing services.

12.   Price Quotes

a.      If specified in the Agreement, the Customer will receive a written price quote for Deliverables for each individual project. The price quote will include the amount that the specific Deliverable will cost, in addition to a reasonable description of the level of detail to be included in the Deliverable. The customer may accept or reject the individual project quote. A quote is considered accepted by a written affirmative response from the Customer. Price quotes are only valid for 7 days after they are sent, unless otherwise specified.

b.      After a quote is accepted by the Customer, or if the Customer accepts the Deliverable, then the Customer is responsible for payment in the amount of the price quoted.

c.     Projects. When producing and delivering Photogrammetry Deliverables, a single Project will be considered a contiguous group of overlapping photos, up to 1,000 individual photos.  Any set of photos beyond 1,000 photos will count as 1 project for each 1,000 photos, or part thereof.  A Project is considered valid after Aerotas has sent the Deliverables related to that Project to the Customer.

13.   Timing and Acceptance

a.      Timing.  Aerotas shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties in the Agreement, and will undertake commercially reasonable efforts to perform the Services. Customer agrees to review Deliverables within a reasonable time and to promptly provide written comments and/or corrections sufficient to identify the Customer’s concerns, objections or corrections to Aerotas.

b.      Acceptance. Customer, within 3 business days of receipt of each Deliverable, shall notify Aerotas, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes or amendments Customer wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Aerotas shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of the Agreement and these Terms. In the absence of such notice from Customer within said stated time period, the Deliverable shall be deemed accepted.

14.   Customer Responsibilities

a.      The Customer is responsible for sending data of a suitable quality to Aerotas for the performance of it services. Customer data will, at a minimum, include photographs and geolocation data taken in a method reasonable for photogrammetry, and Ground Control Point (“GCP”) information for points surveyed on the ground to a high degree of accuracy.

b.      Aerotas may determine, for any reason, that the Customer supplied data is unsuitable to allow Aerotas to perform its services or produce deliverables in a satisfactory manner. If Aerotas determines that Customer data is unsuitable, then Aerotas will provide the Customer with written notice sufficient for the Customer to identify the deficiencies, and either remedy them or collect additional data as needed.  Aerotas is not responsible to produce Deliverables if the Customer supplied data is unsuitable.

c.      Customer acknowledges that he shall be responsible for the coordination of any decision-making with parties other than Aerotas.

d.      The Customer is solely responsible for complying with applicable laws and regulations related to land surveying or the use of data and Deliverables in a land surveying context.

15.   Confidential Information

a.      Each Party acknowledges that in connection with the Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party. Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to the Agreement, except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

16.   Relationship of the Parties

a.      Independent Contractor.  Aerotas is an independent contractor, not an employee of Customer or any company affiliated with Customer. Aerotas shall provide the Services under the general direction of Customer, but Aerotas shall determine the manner and means by which the Services are accomplished. The Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in these Terms. Aerotas and the Deliverables prepared by Aerotas shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Customer are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of the Agreement and these Terms.

b.      No Exclusivity. The Parties expressly acknowledge that the Agreement does not create an exclusive relationship between the Parties. Customer is free to engage others to perform services of the same or similar nature to those provided by Aerotas, and Aerotas shall be entitled to offer and provide services to others, solicit other customers and otherwise advertise the services offered by Aerotas.

17.   Warranties and Representations: Customer

a.      Customer represents to Aerotas that Customer has full corporate power and authority to enter into and perform the Agreement, and has taken all actions necessary to authorize its execution and performance of services under the Agreement and these Terms; and,

b.      Customer owns all right, title, and interest in, or otherwise has full right and authority to permit the use of data supplied to Aerotas by the Customer; and,

c.      To the best of the Customer’s knowledge, the Customer’s data does not infringe the rights of any third party, and use of the Customer Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties.

18.   Warranties and Representations: Aerotas

a.      Aerotas represents to the Customer that Aerotas will provide Aerotas’ Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services; and,

b.      To the best of Aerotas’ knowledge, the Deliverables provided by Aerotas do not infringe the rights of any party, and use of same will not violate the rights of any third parties; and,

c.      Aerotas is not a land surveyor, and does not provide land surveying services. Aerotas provides data processing and extraction services to land surveyors, engineers, and other professionals. It is the responsibility of the Customer to comply with any applicable state or local regulations or requirements in regards to licensure or registration as a land surveyor; and,

d.      Aerotas is not an insurance broker and is not authorized to sell, solicit, or negotiate insurance.  Aerotas does not intend to make any representations to the contrary. 

19.   Indemnification

a.      By Customer.  Customer agrees to indemnify, save and hold harmless Aerotas from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Customer’s responsibilities or obligations, representations or warranties under these Terms. Under such circumstances, Customer shall promptly notify Aerotas in writing of any claim or suit. Customer has sole control of the defense and all related settlement negotiations. Aerotas shall provide Customer with commercially reasonable assistance, information and authority necessary to perform Customer’s obligations under this section.

b.      By Aerotas. Subject to the terms, conditions, express representations and warranties provided in these Terms, Aerotas agrees to indemnify, save and hold harmless Customer from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Aerotas’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Customer.

20.   Limitation of Liability

a.      Both parties agree that in no event shall the other party be liable in relation to the Agreement and Terms or any operations arising out of the Agreement and Terms to the maximum extent permitted by applicable law.  The parties are not responsible for any of the following: i) loss of profits, revenues, or sales, ii) loss of bargain, iii) loss of opportunity iv) loss of use of any service or any computer equipment, v) loss of time on the part of management or other staff, vi) professional fees or expenses, vii) damage to or loss of data, vii) any indirect, special, incidental, exemplary, extraordinary, punitive, or consequential damages of any kind whatsoever. 

b.      In the event that one party is unsatisfied with the service provided, their sole recourse shall be to terminate the Agreement.  In no event shall a party be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of the Agreement and Terms.

21.   Term and Termination

a.      Term.  The Agreement shall commence on the Effective Date of the Agreement and will continue until terminated by either party, or until stated in the Agreement.

b.      Voluntary Termination.  The Agreement may be terminated by notice in writing by either party at any time, and for any reason. 

c.      Upon expiration or termination of the Agreement, each Party shall, at the disclosing Party’s request, destroy any and all Confidential Information of the other Party.

d.      Survival.  Despite completion of the Services or termination of the Agreement for any reason, all provisions in the Terms and Agreement containing representations, warranties, releases, defense obligations and indemnities, and all provisions relating to confidentiality, insurance, disclaimer of certain remedies, limitations of liability, dispute resolution and governing law, and all causes of action which arose prior to completion or termination, survive indefinitely until, by their respective terms, they are no longer operative or are otherwise limited by an applicable statute of limitations.

22.   Disputes and Applicable Law

a.      With regard to disputes between the Parties, the responsible business persons representing each Party will negotiate in good faith to attempt to resolve such dispute.

b.      Exclusive jurisdiction for any disputes under this Agreement shall be a court of competent jurisdiction sitting in California, and the Parties consent to personal jurisdiction for such purposes. The Agreement and Terms shall be governed by, construed, and enforced in accordance with the laws of the State of California, exclusive of the choice of law or conflict of laws or provisions thereof.

23.   General

a.      Modification/Waiver. The Terms and Agreement may be modified by the Parties, but any modification must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under the Terms shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

b.      Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the Agreement, unless notification of change of address is given in writing. Notice shall be effective upon receipt.

c.      No Assignment. Aerotas shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Customer.

d.      Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

e.      Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.

f.       Agreement. The Agreement may be executed in any number of counterparts, each of which will be deemed an original of the Agreement, and which together will constitute one and the same instrument.