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TERMS AND CONDITIONS

Firesky Ltd under number 11761857 whose registered office is at 62a Prince of Wales Mansions, Prince of Wales Drive, London, UK, SW11 4BJ (Operator)

Background

  1. Firesky Ltd conducts the business of the supply of drone services to other businesses and to consumers.

  2. By accepting these terms and conditions, the parties agree that Firesky Ltd will supply drone services to the Customer on the terms set out in this agreement (the Agreement).

BY PURCHASING DRONE SERVICES FROM FIRESKY LTD THE CUSTOMER AGREES:

  1. Definitions and interpretation

    1. In this Agreement:

Adverse Weather means weather conditions that prevent Firesky Ltd from carrying out a Flight on the agreed date;

Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity;

Applicable Law means the laws of England and Wales and any other laws or regulations, regulatory policies or statutes which apply to the provision of the Services from time to time;

Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;

Commencement Date means [the date of this Agreement OR [insert date]];

Confidential Information means all information of a confidential nature disclosed in whatever form by one party directly or indirectly to the other party and includes all know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind;

Control means [the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be interpreted accordingly OR has the meaning given in the Corporation Tax Act 2010, s 1124 and Controls, Controlled and under common Control shall be interpreted accordingly];

Deliverables means the deliverables generated during the performance of the Services including any data, images, footage, report or other documentation, as detailed in Schedule 1

Delivery means the supply of the Deliverables by Firesky Ltd to the Customer in accordance with clause 6, [Schedule 1 ][and this Agreement]; and Delivers and Delivered shall be construed accordingly;

Drone means the unmanned aircraft and associated equipment used in performance of the Services as further described in Schedule 1;

Faulty Drone means a Drone experiencing a technical malfunction which has not been caused or contributed to by Firesky Ltd’s negligent, reckless or incompetent maintenance or operation of the Drone;

Flight means the Drone flight to be carried out by Firesky Ltd as part of the Services in order to capture the data or images that will form or generate the Deliverables;

Flight Preparation Activities means any pre-Flight surveys or preparation activities for the Flight as detailed in Schedule 1;

Force Majeure has the meaning given in clause 21;

Good Industry Practice means the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or company engaged in the same type of activity as Firesky Ltd under the same or similar circumstances;

Intellectual Property Rights means copyright, patents, rights in inventions, rights in confidential information, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;

Performance Location means the location set out in Schedule 1 at which Firesky Ltd shall carry out the Flight, or any alternative premises as may be agreed between the parties in writing from time to time;

Price means the price of the Services determined under clause 8;

Services means the drone-related services listed in Schedule 1, including the Flight, the recording and transmission of the captured data and or images, and the creation and supply of the Deliverables;

Specification means the description of the Services, including the Flight and the Deliverables, set out in Schedule 1;

Term has the meaning given to it in clause 2.1;

VAT means value added tax, as defined by the Value Added Tax Act 1994; and

Warranty Period means, with respect to any Deliverables, the period of 30 Business Days from Delivery.

    1. In this Agreement:

      1. a reference to this Agreement includes its schedules, appendices and annexes (if any);

      2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

      3. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

      4. a reference to a gender includes each other gender;

      5. words in the singular include the plural and vice versa;

      6. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

      7. the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement.

  1. Supply of Services

    1. This Agreement commences on the Commencement Date agreed and, unless terminated earlier in accordance with its terms, shall continue until, and shall terminate automatically upon, the latest of:

      1. Delivery;

      2. the discharge of all payment obligations under this Agreement

(the Term).

    1. During the Term, Firesky Ltd agrees to supply, and the Customer agrees to purchase, the Services on the terms set out in this Agreement.

  1. Pre-flight surveys and flight preparation activities

    1. As part of the Services (and included within the Price), Firesky Ltd shall carry out the Flight Preparation Activities. Firesky Ltd shall submit the results and recommendations resulting from the Flight Preparation Activities in writing to the Customer at least two Business Days prior to the relevant Flight. If the Customer does not agree with the recommendations proposed by Firesky Ltd, it shall notify Firesky Ltd in writing of any required changes and the parties shall use all reasonable endeavours to agree any required changes in advance of the relevant Flight.

    2. If, as a result of the Flight Preparation Activities or any time prior to a Flight, Firesky Ltd reasonably believes that the Services cannot be carried out in accordance with Applicable Law, established safety standards and/or the operation of the Flight is likely to cause damage to persons or property, Firesky Ltd shall document the same in the reports and recommendations made pursuant to clause 3.1 accordingly and may:

      1. adjust the manner of performance of the Services so as to be able to carry them out in accordance with Applicable Law, established safety standards and without risk of damage to persons or property, in which event Firesky Ltd shall make any necessary amendment to the Specification reflecting the adjustment and shall notify the Customer accordingly or,

      2. if adjustment pursuant to clause 3.2.1 may not reasonably be made, terminate this Agreement immediately by serving notice in writing to the Customer, following which termination, Firesky Ltd shall refund any portion of the Price paid by the Customer to Firesky Ltd in advance of Performance less:

        1. any expenses reasonably incurred, and evidenced as being incurred in accordance with this Agreement, by Firesky Ltd as at the date of termination; and 

        2. any part of the Price payable in respect of Flight Preparation Activities as set out in Schedule 2.

    3. The ultimate responsibility to assess whether a Flight can be made safely and in accordance with Applicable Law pursuant to clause 3.2 and any resultant decision of whether to begin, postpone, cancel or discontinue a Flight shall rest with Firesky Ltd.

    4. The Customer shall provide access to the Performance Location, and to any alternative premises as agreed between the parties from time to time in accordance with the Agreement, as necessary to enable Firesky Ltd, or any third parties engaged by Firesky Ltd for the performance of the Services to carry out any Flight Preparation Activities.

    5. In carrying out any Flight Preparation Activities Firesky Ltd shall at all times comply with the obligations set out in clause 4.3 of this Agreement.

  2. Performance of the Services

    1. The Flight shall be conducted by, or on behalf of, Firesky Ltd on the date set out in Schedule 1 (or if no date is specified, a chosen date to be agreed in writing by the parties following signature of the Agreement) and at the Performance Location. 

    2. Subject to clauses 4.8 and 7.7.1, the Customer shall provide any necessary security clearances, access permissions and licences that Firesky Ltd or any personnel employed or engaged by Firesky Ltd may need to perform the Flight, or to carry out any other element of the Services, at the Performance Location. Firesky Ltd shall cooperate with the Customer’s efforts to secure such security clearances, access permissions and licences by providing the Customer with any necessary information about Firesky Ltd, any personnel employed or engaged by Firesky Ltd to assist with the performance of the Services, or the Services that the Customer may require for such purposes.

    3. Firesky Ltd shall provide the Services (in particular the Flight) and act at all times in accordance with:

      1. Applicable Law;

      2. Good Industry Practice;

      3. the Customer’s health and safety policies; and 

      4. any other applicable policies which the Customer provides to Firesky Ltd prior to the commencement of the Flight Preparation Activities, whether the policies of the Customer or of a third party, related to the performance of the Services.

    4. At all times during the Flight, Firesky Ltd shall have full operational and technical control of the Drone, and shall retain full authority, control and possession of the Drone.

    5. Firesky Ltd shall, at any time and at Firesky Ltd’s absolute discretion, be entitled to refuse to operate any flight of a Drone for safety or security related reasons (including situations where the operation of a flight would violate any Applicable Law and/or sanctions). 

    6. Firesky Ltd shall ensure that the Services are performed in accordance with the standards and procedures of Firesky Ltd as set out in its manuals and, where appropriate, in accordance with any mandatory flight manual applicable to the Drone.

    7. In performing the Services, Firesky Ltd shall not fly the Drone over premises or locations which are not:

      1. listed in Schedule 1; or

      2. agreed in writing between the parties.

    8. Where the parties agree in writing, that the Flight will take place over, or will collect footage from, third party premises not belonging to the Customer, Firesky Ltd shall be responsible for obtaining any consents required by law from the owner of such premises and Firesky Ltd shall ensure that it complies with any conditions or requirements imposed by any such owner in relation to any consents.

    9. Firesky Ltd shall use its reasonable endeavours to conduct the Flight on the agreed date but the date of the Flight is approximate only.

    10. Subject to clause 4.11, if Firesky Ltd fails to perform the Flight or the Services or make resources available to do so at the time specified in Schedule 1, the Customer may:

      1. refuse to accept any proposed alternative dates for performing the Flight and/or any subsequent attempts to supply the Services and terminate this Agreement immediately by serving notice in writing on Firesky Ltd to this effect;

      2. procure similar Services from an alternative operator; and

      3. recover from Firesky Ltd any deposit taken as payment in advance of the Flight.

    11. Firesky Ltd shall not be liable for any delay in or failure to perform the Services to the extent that the same is directly or indirectly caused by:

      1. the Customer’s failure to:

        1. make the Performance Location available;

        2. prepare the Performance Location (if necessary, in accordance with Firesky Ltd’s instructions);

        3. provide Firesky Ltd with adequate instructions for supply of the Services; or

        4. obtain any clearances, licences, permissions or consents that it is required to obtain under this clause 4; or

      2. changes in Applicable Law;

      3. any Operator decision to reschedule or refuse to perform the Flight pursuant to clauses 3.2 or 4.5;

      4. a third party act or omission related to Firesky Ltd or the Customer’s request for consent to perform the Flight, including any third party act which delays or significantly impedes the Flight on the date of the planned performance;

      5. Adverse Weather or Force Majeure, in which events, for the avoidance of doubt, clause 21 shall apply.

    12. In the performance of the Services, Firesky Ltd shall not, and shall take reasonable steps to ensure that its employees, subcontractors, agents and representatives do not, act in any manner that brings or is likely to bring the Customer into disrepute.

    13. Without prejudice to clauses 4.3 to 4.5 inclusive, in performing the Services Firesky Ltd shall co-operate fully with any producer, director or other third party engaged by the Customer in connection with the Deliverables.

  3. Damage to property

    1. If the Drone is damaged or lost during the Flight or as a result of the performance of the Services, the cost of repair or replacement of the Drone shall be assumed by Firesky Ltd except to the extent that such damage or loss is caused by the Customer, in which event:

      1. the Customer shall compensate Firesky Ltd for the cost of repairing the Drone; or 

      2. if the Drone is not capable of being repaired or it is uneconomical to do so, the Customer shall assume the cost of replacing the Drone with a drone of the same or equivalent specification.

    2. If property belonging to a third party is damaged by a Drone during the Flight or as a result of the performance of the Services, liability for any third party claims shall be borne by Firesky Ltd except to the extent that such damage was caused by the Customer in which event the Customer shall assume the liability for any such third party claims.

    3. If the Drone causes damage to the Customer’s property, Firesky Ltd shall assume the cost of repair of such property unless the damage was caused by the Customer.

    4. If any person, including an employee of the Customer, is injured by a Drone during the Flight or as a result of the performance of the Services, liability for any claims thereby arising shall be borne by Firesky Ltd except to the extent that such injury was caused by the Customer in which event the Customer shall assume the liability for any such claims.

    5. Firesky Ltd shall notify the Customer as soon as reasonably possible of any accidents, crashes, collisions, noteworthy unplanned landings or noteworthy incidents that occur during the Flight or performance of the Services, including details of damage to persons or property sustained, potentially sustained or alleged to have been sustained by third parties, Firesky Ltd or the Customer.

  4. Delivery

    1. Firesky Ltd shall supply the Deliverables to the Customer within 30 days of the final Flight OR on the date set out in Schedule 1.

    2. The Deliverables shall be delivered to the Customer by Firesky Ltd in the format and using the delivery method set out in Schedule 1.

  5. Warranty

    1. Firesky Ltd warrants that:

      1. subject to clause 7.6, the Services shall conform in all material respects with the Specification;

      2. the Services shall be performed with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, s 13 and in accordance with all Applicable Law;

      3. the Deliverables shall, for the Warranty Period, be free upon delivery from material defects, viruses or other malicious code; 

    2. Firesky Ltd shall, at the Customer’s option, remedy, re-deliver or refund Services that do not comply with clause 7.1, provided that the Customer:

      1. serves a written notice on Firesky Ltd within the Warranty Period that some or all of the Services do not comply with clause 7.1 and identifying in sufficient detail the nature and extent of the defects; and

      2. gives Firesky Ltd a reasonable opportunity to examine the claim of the defective Services.

    3. The Customer shall be deemed to accept the Services unless it notifies Firesky Ltd of any failure of the Services or the Deliverables to comply with clause 7.1 within the time periods set out in clause 7.2.1.

    4. The provisions of this Agreement shall in addition apply to any Services and Deliverables that are remedied or re-performed with effect from the date of delivery of the remedied or re-performed Services. 

    5. Firesky Ltd shall not be liable for any failure of the Services to comply with clause 7.1:

      1. to the extent caused by the Customer’s failure to comply with Firesky Ltd’s pre-Flight recommendations in accordance with clause 3;

      2. to the extent caused by any design, specification or requirement of the Customer in relation to the Services;

      3. where the Customer alters the Deliverables against Firesky Ltd’s instructions or recommendations; or

      4. where the Customer uses any of the Deliverables after notifying Firesky Ltd that they do not comply with clause 7.1 except in the event where the Services cannot reasonably be re-performed.

    6. Firesky Ltd may amend the Specification after the Commencement Date and prior to the Flight to avoid being in breach of any Applicable Law and shall notify the Customer of any such amendment pursuant to clause 3.2.1. 

    7. Firesky Ltd further warrants that:

      1. it has obtained, shall keep up to date and comply with any necessary registrations, approvals, certifications and licences required by Applicable Law to supply and perform the Services, including (as appropriate) operator or remote pilot registration, remote pilot competency requirements, specific operational approval, light Unmanned Aircraft System or other operator certification, equipment type and airworthiness certification and/or pilot licensing; and

      2. the Drone shall meet the Specification and be fit for any purpose held out by Firesky Ltd OR set out in the Specification;

    8. The provisions of this clause 7 are in addition to, and are not exclusive of, any other rights and remedies to which the Customer may be entitled, and the warranties and conditions implied by the Supply of Goods and Services Act 1982 are not excluded.

  6. Price

    1. The Prices payable by the Customer in respect of the Services are contained in Schedule 2.

    2. The Prices include expenses and transport to and from the Performance Location unless it is agreed they are exclusive of this, in which case, such expenses are specified as included in the Price in Schedule 2.

    3. The Prices exclude VAT (or equivalent sales tax).

    4. If Firesky Ltd performs any additional services outside the scope of the Services, Firesky Ltd shall be entitled to reasonable additional fees and expenses and additional time for performance of the additional services.

      1. Any expenses incurred by Firesky Ltd shall be accompanied by a valid receipt or other proof of payment.

  7. Payment

    1. The Customer shall pay 50% of the Price by way of deposit and in so doing execute this Agreement by accepting these terms and conditions.

    2. Firesky Ltd shall issue its invoice for the remaining Price payable in respect of any Deliverables within 10 Business Days of Delivery of them.

    3. The Customer shall pay all undisputed invoices:

      1. in full in cleared funds within 30 days of the date of each invoice; and

      2. to the bank account nominated by Firesky Ltd.

    4. Time of payment is of the essence and where sums due under this Agreement are not paid in full by the due date:

      1. Firesky Ltd may, without limiting its other rights, charge interest on such sums at 8 percentage points a year above the base rate of the Bank of England from time to time in force; and

      2. interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

    5. The Customer shall pay any applicable VAT to Firesky Ltd on receipt of a valid VAT invoice. As of January 2020, no VAT is payable in respect of invoices to Firesky Ltd.

  8. Intellectual property rights

    1. In consideration of the Price payable under this Agreement and the parties’ mutual obligations under this Agreement, Firesky Ltd hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence to use Firesky Ltd’s Delivarables for reproduction, exhibition, transmission and broadcast (including publicity) unless it is agreed otherwise in which case Schedule 1 states otherwise.

    2. Firesky Ltd agrees that the Customer shall be entitled to cut, edit, copy and translate the Deliverables as it deems fit and the Customer shall not be obliged to use the whole or any part of the Deliverables in its absolute discretion and it is agreed and acknowledged that final editorial control of the Deliverables shall remain and vest in the Customer.

    3. Except as expressly set out in this Agreement, no Intellectual Property Rights of either party are assigned, transferred or licensed.

    4. Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.

    5. Firesky Ltd warrants and represents to the Customer that:

      1. Firesky Ltd has the right, power and authority to assign the rights contemplated in this Agreement;

      2. that the Deliverables shall not contain any material which is in breach of confidence or likely to invade the privacy of any person or which is obscene, defamatory or otherwise unlawful or which infringes the statutory or common law rights of any third party.

  9. Limitation of liability

    1. The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.

    2. Subject to clauses 12.5 and 12.6, the total liability of the:

      1. Operator howsoever arising under or in connection with this Agreement shall not exceed the sum of £1m.

    3. Subject to clauses 12.5 and 12.6, Firesky Ltd be liable for consequential, indirect or special losses.

    4. Subject to clauses 12.5 and 12.6, Firesky Ltd shall be liable for any of the following (whether direct or indirect):

      1. loss of profit;

      2. loss of or corruption to data;

      3. loss of use;

      4. loss of production;

      5. loss of contract;

      6. loss of opportunity;

      7. loss of savings, discount or rebate (whether actual or anticipated);

      8. harm to reputation or loss of goodwill.

    5. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:

      1. death or personal injury caused by negligence;

      2. fraud or fraudulent misrepresentation; or

      3. any other losses which cannot be excluded or limited by Applicable Law.

  10. Insurance

    1. Firesky Ltd shall put in place and maintain such insurance as would ordinarily be taken out as Good Industry Practice for the duration of this Agreement, and as a minimum shall take out and maintain:

      1. unmanned aircraft operators’ insurance for not less than £1 million in respect of each incident;

      2. public liability insurance for not less than £1 million in respect of each claim;

      3. any insurance required by Applicable Law.

    2. At the Customer’s request, Firesky Ltd shall provide the Customer with details of the insurance including the risks covered, indemnity limits and copies of the certificates of insurance.

  11. Indemnity

    1. In the event that the Customer receives notice of any Claim, it shall:

      1. notify Firesky Ltd in writing as soon as reasonably practicable;

      2. not make any admission of liability or agree any settlement or compromise of the Claim without the prior written consent of Firesky Ltd (such consent not to be unreasonably withheld or delayed);

      3. let Firesky Ltd at its request and own expense have the conduct of or settle all negotiations and litigation arising from the Claim at its sole discretion provided that if Firesky Ltd fails to conduct the Claim in a timely or proper manner the Customer may conduct the Claim at the expense of Firesky Ltd;

      4. take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the Claim; and

      5. provide Firesky Ltd with all reasonable assistance in relation to the Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer.

    2. Without prejudice to clause 14.1, if any IPR Claim is made or is reasonably likely to be made, Firesky Ltd may at its option:

      1. procure for the Customer the right to continue using and possessing the relevant Deliverables; or

      2. modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in conformance to the Specification.

    3. The Customer shall indemnify Firesky Ltd for any losses, damages, liability, costs and expenses (including professional fees) incurred by Firesky Ltd as a result of any action, demand or claim brought against it in relation to a to a breach third party confidentiality or privacy where Firesky Ltd has operated in accordance with the Customer’s instructions.

    4. Notwithstanding any other provision of this Agreement, the liability of the parties in relation to breaches of data protection law shall be governed by Schedule 3.

  12. Termination

    1. This Agreement may be terminated by Firesky Ltd giving not less than 2 weeks’ notice in writing to the other party.

    2. Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

      1. the other party commits a material breach of this Agreement and such breach is not remediable;

      2. the other party commits a material breach of this Agreement which is capable of remedy but is not remedied within 10 Business Days of receiving written notice of such breach; or

      3. any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.

    3. Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

      1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

      2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;

      3. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

      4. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

      5. has a resolution passed for its winding up;

      6. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

      7. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [five] Business Days of that procedure being commenced;

      8. has a freezing order made against it;

      9. is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

      10.     14.3.10.is subject to any events or circumstances analogous to those in clauses 15.3.1 to 15.3.9 in any jurisdiction.

    4. The right of a party to terminate the Agreement pursuant to clause 15.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.

    5. Firesky Ltd may terminate this Agreement at any time by giving not less than two weeks’ notice in writing to the Customer if the Customer undergoes a change of Control.

    6. Subject to clauses 3.2.2 and 4.9, on termination of this Agreement for any reason:

      1. the Customer shall immediately pay all outstanding undisputed invoices of Firesky Ltd;

      2. Firesky Ltd shall promptly invoice the Customer for all Services performed but not yet invoiced and payment for such invoices, where not disputed, shall be due immediately on receipt by the Customer;

      3. without prejudice and subject to Schedule 3, each party shall within five Business Days return any materials of the other party then in its possession or control; and

      4. the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.

    7. The following clauses of this Agreement shall survive termination, howsoever caused:

      1. clause 12 (limitation of liability);

      2. clause 15.6 (termination);

      3. clause 16 (data protection);

      4. clause 17 (confidential information);

      5. clause 18 (dispute resolution);

      6. clause 20 (notices);

      7. clause 32 (third party rights);

      8. clauses 33 and 34 (governing law and jurisdiction); and

      9. Schedule 3 (data protection);

together with any other provision of this Agreement which expressly or by implication is intended to survive termination.

  1. Data protection

    1. Each party shall comply with its respective obligations, and may exercise its respective rights and remedies, under Schedule 3.

  2. Confidential information

    1. Each party agrees that during the term of this Agreement it shall use the other party’s Confidential Information only for the performance of its obligations and exercise of its rights under this Agreement (Permitted Purpose) and that it shall not disclose the other party’s Confidential Information except in accordance with this clause 17.

    2. Each party may disclose the other party’s Confidential Information to those of its employees, sub-contractors, officers, advisers, agents or other representatives who need to know the other party’s Confidential Information for the Permitted Purpose, provided that it shall ensure that each of its employees, sub-contractors, officers, advisers, agents or other representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 17 as if it were a party.

    3. Each party may disclose the other party’s Confidential Information to the extent required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.

    4. Each party recognises that any breach or threatened breach of this clause 17 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

    5. To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of Schedule 3.

  3. Entire agreement

    1. This Agreement and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

    2. Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

    3. Nothing in this Agreement purports to limit or exclude any liability for fraud.

  4. Notices

    1. Any notice given by a party under this Agreement shall be:

      1. in writing and in English;

      2. signed by, or on behalf of, the party giving it (except for notices sent by email); and

      3. sent to the relevant party at the address set out in clause 20.3.

    2. Notices(and other communications) to Firesky Ltd shall be sent to:

      1. Firesky Ltd, 

62a Prince of Wales Mansions, Prince of Wales Drive SW114BJ

0207 498 4607

info@fireskymedia.com

    1. Any change to the contact details of a party as set out in clause 20.3 shall be notified to the other party in accordance with clause 20.1 and shall be effective:

      1. on the date specified in the notice as being the date of such change; or

      2. if no date is so specified, ten Business Days after the notice is deemed to be received.

    2. All references to time are to the local time at the place of deemed receipt.

    3. This clause does not apply to notices given in legal proceedings or arbitration.

  1. Force majeure

    1. In this clause ‘Force Majeure’ means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement. Inability to pay is not Force Majeure.

    2. Subject to clause 21.4, a party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:

      1. promptly notifies the other of the Force Majeure event and its expected duration; and

      2. uses reasonable endeavours to minimise the effects of that event.

    3. Subject to clause 21.4, if, due to Force Majeure, a party:

      1. is or is likely to be unable to perform a material obligation; or

      2. is or is likely to be delayed in or prevented from performing its obligations for more than 20 Business Days,

either party may terminate this Agreement on not less than four weeks’ written notice.

    1. Adverse Weather does not qualify as an event of Force Majeure. If Adverse Weather or a Faulty Drone prevents Firesky Ltd from carrying out a Flight on the date(s) specified in Schedule 1 of the Agreement, the parties shall agree a new date when that Flight shall be carried out at no extra cost to the Customer. If it is not possible to re-schedule the Flight, or the parties are unable to reach agreement over a new date for the Flight, this Agreement shall be terminated and Firesky Ltd shall be entitled to keep the deposit paid under clause 9.1 but refund any other payments made by the Customer to Firesky Ltd under this Agreement. 

  1. Variation

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

  1. Further assurance

Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.

  1. Subcontracting

    1. Firesky Ltd may subcontract or delegate the performance of any of its obligations under this Agreement without the Customer’s prior written consent.

    2. Firesky Ltd shall procure that all subcontractors comply with Firesky Ltd’s obligations under this Agreement (to the extent applicable to the provision of the relevant aspects of the Services performed by the applicable subcontractor).

    3. Subcontracting in accordance with this clause 25 does not relieve Firesky Ltd from any liability under this Agreement. Firesky Ltd shall remain fully responsible for the actions, inactions, and performance of all obligations performed by any subcontractors to the same extent as if such actions, inactions or obligations were made or performed by Firesky Ltd.

  2. Set off

Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

  1. No partnership or agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

  1. Severance

    1. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

    2. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

  2. Waiver

    1. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

    2. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.

    3. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

  3. Compliance with law

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all Applicable Laws, provided that neither party shall be liable for any breach of this clause 30 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).

  1. Conflicts within agreement

    1. In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:

      1. the terms and conditions in the main body of this Agreement and Schedule 3;

      2. the other Schedules.

    2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

  2. Third party rights

A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.

  1. Governing law

This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

  1. Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).