Terms & Conditions


NEARBYSKY

NETWORK TERMS AND CONDITIONS


Welcome to NearbySky! 

Our online network facilitates our platform users to access a network of UAV & Data Service Providers (Network). This agreement governs your use of the Network and any Jobs conducted through the Network.

These are the key terms to understand, to help you read this agreement:


Term

Meaning

Account

means a User’s unique profile on the Network.

Booking

has the meaning given in clause 2.1(e).

Customer

means a User that registers an Account for the purpose of accessing Service Providers to conduct Jobs.

Data

means any images, videos or other information generated by a Job.

Intellectual Property Rights

means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.

Job

means any UAV job activity requested or conducted through the Network, including any associated Data.

NearbySky

means NearbySky Pty Ltd ACN 625 133 128.

Network

means the marketplace enabled via our portal or mobile application, and any other websites or applications owned or operated by Nearby Sky for the same or similar purposes as this Network.

Quoted Amount

means the amount estimated at the point of a reservation being made between a Customer and Service Provider, inclusive of the Service Cost and the Service Fee, as based on the Service Provider’s Rate Card.

Rate Card



Service Provider



Service Cost

means the costs charged by the Service Provider which will form the basis of the Quoted Amount.


means a User that registers an Account for the purpose of performing Jobs or Data analysis services.


means the amount payable by the Customer to the Service Provider for a Job or any other services.

Service Fee

means the percentage of the Service Cost that will be payable by the Customer to NearbySky, on top of the Service Cost, which as at the date of this agreement is 12% (unless otherwise stated on the Network).

Start Date & Time

means the date agreed between a Service Provider and a Customer for the start of a UAV Flight.




Users

means any person that uses the Network in any capacity, including Service Providers and Customers.


TERMS AND CONDITIONS

  1. ACCOUNT REGISTRATION

  1. All Users are required to sign-up, register and receive an account through the Network (Account).

  2. By registering for an Account, you agree to be bound by this agreement which forms a binding contractual agreement between you, the User, and NearbySky.

  3. As part of the Account registration process and as part of your continued use of the Network, you are required to provide personal information and details, such as:

    1. your profile and contact information, including your email address, first and last name;

    2. your location by enabling location services;

    3. if you are a Service Provider, your equipment, licence and insurance details; and

    4. all other identifying information related to any registered entity you operate under; and

    5. any other information reasonably requested by Nearby Sky from time to time.

  4. You warrant that any information you give to Nearby Sky will always be accurate, honest, correct and up-to-date. This includes any information provided by Service Providers in relation to their qualifications, skills and experience relating to Jobs. You indemnify Nearby Sky for any claims arising out of false, incomplete or misleading information.

  5. You must not access the Network if you are under the age of 18 years old and do not have your parent or guardian’s consent, or if you have previously been suspended or prohibited from using the Network.

  6. Once you complete the Account registration process, Nearby Sky may, in its absolute discretion, choose to accept you as a registered user within the Network and provide you with an Account. Nearby Sky may delegate the approval of a Service Provider’s Account to any relevant Customer of Nearby Sky.


  1. JOBS

    1. BOOKING

      1. A Service Provider may list their skills and availability on the Network.

      2. A Customer who requires a Job may engage the Network to provide Job services subject to availability.

      3. If a Service Provider receives a notice that a Customer is seeking a Job, the Service Provider may accept or reject the request.

      4. If a Service Provider accepts the request, the Service Provider may accept the Booking and Nearby Sky will notify the Customer that the Booking is confirmed, at which point an agreement is formed between the Customer and the Service Provider for the provision of the Job (Booking).

      5. All Users acknowledge and agree that Nearby Sky will not be a party to any Booking or agreement for any Job.

    2. PERFORMANCE

A Service Provider who agrees to a Booking with a Customer must:

  1. ensure that performance of the Job occurs at the scheduled Start Date & Time (unless otherwise agreed in accordance with clause 6.1);

  2. perform the Job with due care and skill;

  3. ensure they aware of an comply with all CASA compliance and regulatory requirements and currently hold the appropriate insurance to perform the Job; and

  4. keep the Customer informed of any issues that may effect the Job or the associated Data, including adverse weather limiting visibility.

Once a Booking is made, a Service Provider may only reschedule or cancel a Job in accordance with clause 6.1.


  1. NEARBYSKY NOT RESPONSIBLE FOR SERVICE PROVIDERS

The parties and all Customers acknowledge and agree that:

  1. the Network provides links and introductions to Service Providers who are third parties that are not under the control of, or employed by, Nearby Sky;

  2. the provision by Nearby Sky of introductions to Service Providers does not imply any endorsement or recommendation by Nearby Sky of any Service Provider; and

  3. Nearby Sky does not examine, determine or warrant the certification and/or licensing, competence, solvency or information of any Service Provider who uses the Network.


  1. PROVISION OF DATA

  1. During each Job, the Service Provider is responsible for collecting all required footage, information and imagery agreed between the Customer and the Service Provider prior to the Job (Data).

  2. The Customer is responsible for ensuring that it notifies the Service Provider, prior to the Job, of any changes to the Data requirements.

  3. Once the Job has commenced, the Service Provider is not required to accept any changes to the Data requirements.

  4. Ownership of the Data, including all Intellectual Property Rights arising in the Data, will immediately vest in the Customer upon its creation.

  5. The Customer grants the Service Provider and Nearby Sky an irrevocable, perpetual, non-exclusive, worldwide licence to use, adapt, modify and distribute (including the right to sublicense) all Data for their respective purposes.


  1. SERVICE COSTS & NEARBY SKY FEES

  1. Creating an Account on the Network is free. You may then be provided with an invitation code to join particular workspaces within the Network.

  2. The Service Provider will provide the Customer with a Quoted Amount, being the sum of:

    1. the estimated Service Cost based on the Service Provider’s Rate Card; and

    2. the Service Fee which will be charged by NearbySky.

  3. Unless the Network provides functionality to agree a fixed price, the Service Cost will be determined after the Job, based on the Service Provider’s Rate Card and

the actual flight time. If the Network provides functionality to agree a fixed price, that fixed price will form the Service Cost regardless of the actual flight time.

  1. The amount of the Service Fee is the percentage of the Service Cost, as displayed on the Network at the time of making a Booking, which will be charged to the Customer on top of the Service Cost.

  2. Unless otherwise agreed in writing, NearbySky reserves the right to vary the Service Fee at any time by agreeing to a new Service Fee with the Customer in writing.

  3. Service Providers must only charge the Customer based on the Service Provider’s Rate Card and with reference to the actual time performing the Job. Service Providers must not attempt to claim any other additional amount from the Customer for the Jobs.

  4. Once a Flight is completed:

    1. the Service Provider must submit the Flight Data; and

    2. Nearby Sky will provide an invoice to the Customer based on the Flight Data.

  5. Nearby Sky reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

  6. Service Providers are responsible for the collection and remission of all taxes associated with any transactions made through the Network. Nearby Sky will not be held accountable in relation to any transactions where tax related misconduct has occurred.


  1. CHANGES TO YOUR JOB

    1. CANCELLATION PRIOR TO JOB

      1. Either party may postpone or cancel a Job without financial liability if more than 48 hours’ notice is provided via the Network or any connected app platforms.

      2. The parties agree that a Job must be postponed (without financial liability to either party) in the event of unsuitable weather. The parties may agree to postpone the Drone Flight up to the Start Time of the Job due to unsuitable weather. Unless clause 6.1(b) applies, if a Customer postpones or cancels a Job with less than 48 hours’ written notice, the Service Fee will be fully payable, and 50% of the Service Cost will be refunded (if paid in advance) or charged (as applicable) to the Customer.

      3. If a Service Provider postpones or cancels a Job with less than 48 hours’ written notice, any amounts already paid by the Customer will be fully refunded to the Customer and the Service Provider may be removed from the Network.

    2. REFUND AFTER JOBS

      1. Unless there is a major failure with the technical functioning of the Network, the Service Fee is fully non-refundable.

      2. The Customer may request a refund where it considers:

        1. the Job was not properly performed in accordance with the requirements agreed in writing between the Service Provider and the Customer; or

        2. the Data is faulty or defective.

      3. The following process applies where a Customer requests a refund:

        1. The Customer must make the request in writing to Nearby Sky identifying the reasons why the refund is requested.

        2. If Nearby Sky agrees with the request, Nearby Sky will promptly:

          1. notify the Service Provider, including the reference number for the Booking and the nature of the fault; and

          2. decide, in its absolute discretion, on an appropriate outcome including potential refunds or replacement services for the Service Provider (to be performed by the Service Provider at no additional cost to Nearby Sky or the Customer).

All refunds will be credited back to the Customer’s original method of payment.

  1. If Nearby Sky determines in its reasonable opinion that the Customer is not entitled to a refund, Nearby Sky may refuse the request, giving reasons. If Nearby Sky’s decision is not satisfactory to the Service Provider or the Customer, the Service Provider and the Customer will follow the process in clause 14 to resolve the dispute.

  2. Nothing in this clause 6 is intended to limit or otherwise affect the operation of a Customer’s rights which cannot be excluded under applicable law, including the Australian Consumer Law.

  1. If Nearby Sky determines, in its absolute discretion, that a Service Provider has failed to meet the acceptable standards for participation in the Network as a Service Provider, including by providing faulty Data or failing to cooperate to resolve a Customer’s grievance, Nearby Sky may terminate the Service Provider’s Account.


  1. RESTRICTION ON BYPASSING

  1. Correspondence between Users to arrange a Job must take place on the Network. Users must ensure that their Account does not display any of their personal contact information at any time such that it can be viewed by any other User. Users agree to not give their contact details to any other User.

  2. Once a Booking is made, Users may correspond about that Booking in whatever method is convenient.

  3. Users agree that they must not, either directly or indirectly, solicit or attempt to solicit any business, work, income or other benefit related to the provision of Jobs , from any other User whom they came to know about, or with whom they provided Jobs to directly or indirectly, by using the Network. This provision will apply whether or not either of the Users is still active on the Network.

  4. Nearby Sky may, in its absolute discretion, cancel an Account and suspend a User from using the Network if it finds or suspects that the User has breached this clause 6.


  1. REVIEWS OF OTHER USERS

  1. Users may rate another User (Reviews) if and when they have completed a Job to or from that User (Experience).

  2. Reviews of a User can be viewed by any User and will remain viewable until the relevant User’s Account is removed or terminated.

  3. Users must provide true, fair and accurate information in their Review.

  4. If Nearby Sky considers that a Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review. However, we do not undertake to review each Review made by a User.

  5. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.

  6. Users are encouraged to be specific and factual in their Reviews. If a User has been offered an incentive by another User to write a Review, that incentive should be included in the Review.

  1. USER OBLIGATIONS

As a User, you agree:

  1. not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment;

  2. to not share your Account with any other person and that any use of your Account by any other person is strictly prohibited. You must immediately notify Nearby Sky of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Network’s security;

  3. to not use the Network for any purpose other than for the purpose of making arrangements to provide or receive Jobs, including:

    1. you must not use the Network in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job or a Flight which includes illegal Jobs, activities or purposes); and

    2. you must not use the Network in connection with any commercial or money making or other promotional or marketing endeavours except those that are endorsed herein, or as approved in writing by Nearby Sky;

  4. not to act in any way that may harm the reputation of Nearby Sky or associated or interested parties or do anything at all contrary to the interests of Nearby Sky or the Network;

  5. you must not make any automated use of the Network and you must not copy, reproduce, translate, adapt, vary or modify the Network without the express written consent of Nearby Sky;

  6. that Nearby Sky may change any features of the Network or Jobs offered through the Network at any time without notice to you;

  7. that information given to you through the Network, by Nearby Sky or another User including a Service Provider, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and

  8. that Nearby Sky may cancel your account at any time, including if it considers, in its absolute discretion, that you are in breach or are likely to breach this clause 2.


  1. POSTED CONTENT

    1. WARRANTIES

By creating an Account, agreeing to a Booking or otherwise posting any requests, questions, information, materials or other content on the Network (Posted Content), you represent and warrant that:

  1. you are authorised to provide the Posted Content (including by being authorised to perform any services that you represent you provide);

  2. the Posted Content is accurate and true at the time it is provided;

  3. any Posted Content which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;

  4. the Posted Content is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;

  5. the Posted Content does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;

  6. the Posted Content does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Network or any network or system; and

  7. the Posted Content does not breach or infringe any applicable laws.

  1. LICENCE


You grant to Nearby Sky a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Content in order for Nearby Sky to use, exploit or otherwise enjoy the benefit of such Posted Content.

  1. You indemnify Nearby Sky against all damages, losses, costs and expenses incurred by Nearby Sky arising out of any third party claim that your Posted Content infringes any third party’s Intellectual Property Rights.

  1. REMOVAL

    1. Nearby Sky acts as a passive conduit for the online distribution of Posted Content and has no obligation to screen Posted Content in advance of it being posted. However, Nearby Sky may, in its absolute discretion, review and remove any Posted Content at any time without giving any explanation or justification for removing the Posted Content.

    2. You agree that you are responsible for keeping and maintaining records of Posted Content.

  2. THIRD PARTY CONTENT

The Network may contain text, images, data and other content provided by a third party and displayed on the Network (Third Party Content). Nearby Sky accepts no responsibility for Third Party Content and makes no representation, warranty or guarantee about the quality, suitability, accuracy, reliability, currency or completeness of Third Party Content.


  1. SERVICE LIMITATIONS

The Network is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that Nearby Sky cannot and does not represent, warrant or guarantee that:

  1. the Network will be free from errors or defects;

  2. the Network will be accessible at all times;

  3. messages sent through the Network will be delivered promptly, or delivered at all;

  4. information you receive or supply through the Network will be secure or confidential; or

  5. any information provided through the Network is accurate or true.


  1. PROTECTION OF INFORMATION

    1. CONFIDENTIALITY

You agree that:

  1. no information owned by Nearby Sky, including system operations, documents, marketing strategies, staff information and client information, may be disclosed or made available to any third parties; and

  2. all communications involving the details of other Users on this Network and of the Service Provider are confidential, and must be kept as such by you and must not be distributed nor disclosed to any third party.

When you provide information to NearbySky, you acknowledge and agree that NearbySky may share that information with other Users for the purposes of facilitating Jobs. You may notify NearbySky prior to providing us any information that the particular information is not to be shared with another User, in which case NearbySky will keep that information confidential. 

  1. PRIVACY

You agree to be bound by the clauses outlined in Nearby Sky’s Privacy Policy, which can be accessed here https://nearbysky.com/privacy/ 

  1. RECORDS AND AUDITS

To the extent permitted by law, Nearby Sky reserves the right to keep all records of any and all transactions and communications made through this Network between you and other Users (including conversations, user posts, job workflows, product offerings, partner rates, data files, request bids, comments, feedback, cookies, and I.P. address information) for administration purposes and also holds the right to produce these records in the event of any legal dispute involving Nearby Sky.


  1. DISPUTES BETWEEN USERS

  1. If any issue or problem relating to the Network remains unresolved after directing a complaint to a relevant User, or if the complaint does not relate to another User, you must report it to Nearby Sky via the platform or by contacting support@nearbysky.com. Nearby Sky will assess the complaint and attempt to quickly and satisfactorily resolve it.

  2. Nearby Sky reserves the right to hold funds in relation to a dispute until the dispute is resolved.

  3. Any costs you incur in relation to a complaint or dispute will be your responsibility.

  4. If you have a dispute with Nearby Sky, or a dispute with another User that NearbySky is unable to resolve, the parties to the dispute will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute). 

  5. The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.

  6. The parties will use best endeavours to avoid litigation and reach a prompt settlement.

  7. The process in this clause does not apply where a party requires an urgent injunction.


  1. DISCLAIMER

  1. (Security) Nearby Sky does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with your use of the Network. You should take your own precautions to ensure that the process you employ to access the Network does not expose you to the risk of viruses, malicious computer code or other forms of interference.

  2. (Introduction service) NearbySky Network is a medium that facilitates the introduction of Customers and Service Providers for the purposes of buying and selling UAV & Data Services. NearbySky Network simply collects a Service Fee in consideration for providing this introduction service and does not have any obligations or liabilities to, and is not a party to any contract between, Customers and Service Providers in relation to such Jobs or otherwise resulting from the introduction.

  3. (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of Nearby Sky to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Network or any Job is the Service Fee paid to Nearby Sky for the relevant Job giving rise to the liability.

  4. (Disclaimer) All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into this agreement which may not lawfully be excluded, then to the maximum extent permitted by applicable law, Nearby Sky’s liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:

    1. in the case of Jobs, their replacement or the supply of equivalent Jobs or their repair; and

    2. in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

  5. (Indemnity) You agree to indemnify Nearby Sky and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from you or your representatives’:

    1. breach of any term of this agreement;

    2. misuse of the Network or Platform; or

    3. provision or receipt of Jobs from another User.

Nearby Sky agrees to indemnify each User and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from:

  1. NearbySky’s breach of any term of this agreement; or

  2. NearbySky’s failure to provide the Platform.

  1. (Consequential loss) To the maximum extent permitted by law, under no circumstances will Nearby Sky be liable for any incidental, special or consequential loss or damages (including to persons or property), or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Network, this agreement or their subject matter, or any services provided by any Service Provider (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).


  1. TERMINATION

  1. Nearby Sky reserves the right to terminate a User’s access to any or all of the Network at any time without notice, for any reason.

  2. If a User’s Account, access or membership is terminated, access to the Network will be revoked.

  3. Users may terminate their Account or membership on the Network at any time by using the Network’s functionality where such functionality is available. Where such functionality is not available, Nearby Sky will effect such termination within a reasonable time after receiving written notice from the User.

  4. Notwithstanding termination or expiry of your Account or membership or this agreement, any provision which by its nature would reasonably be expected to be complied with after termination or expiry, will continue to apply.

  1. NOTICES

  1. Any notices required to be sent under this agreement must be sent via email using the party’s email addresses most regularly used in connection with this agreement, and the email’s subject heading must refer to this agreement.

  2. The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

  1. GENERAL

    1. GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

  1. WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

  1. SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

  1. JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

  1. INTERPRETATION

    1. (singular and plural) words in the singular includes the plural (and vice versa);

    2. (gender) words indicating a gender includes the corresponding words of any other gender;

    3. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

    4. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

    5. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

    6. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

    7. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

    8. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

    9. (includes) the word “includes” and similar words in any form is not a word of limitation; and

(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
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