GENERAL TERMS AND CONDITIONS OF BUSINESS OF SPECTAIR GMBH & CO. KG
§ 1 Scope of application
- These General Terms and Conditions of Business (hereinafter referred to as “GTC”) shall apply for all contracts that are concluded between SPECTAIR GmbH & Co. KG (hereinafter referred to as “SPECTAIR”) and its customers (hereinafter referred to as “Customer”) (hereinafter referred to collectively as “Parties”).
- SPECTAIR provides services exclusively to customers who are not consumers within the meaning of Section 13 BGB [German Civil Code]. A contract is concluded only with a Customer who is not a consumer and where it is obvious to SPECTAIR that said Customer is not acting in this capacity. Sentences 1 and 2 above shall not apply for participation in training courses, for which separate General Terms And Conditions of Business apply.
- The SPECTAIR GTC shall apply exclusively. Any GTC of the Customer that differ from, are contrary to or supplement the SPECTAIR GTC shall not be acknowledged by SPECTAIR and are explicitly objected to. This shall also apply where SPECTAIR executes the order in awareness of the Customer’s GTC.
§ 2 Conclusion of the contract
- SPECTAIR shall provide the Customer at the latter’s request with a non-binding offer for the desired service, including a detailed description of the service and the corresponding price (hereinafter referred to as “Non-Binding Offer”). On the basis of the Non-Binding Offer, the Customer shall submit a binding offer (hereinafter referred to as “Order Proposal”) to SPECTAIR for the commissioning of the service described in the Non-Binding Offer.
- The Order Proposal must be submitted in text form. Insofar as SPECTAIR has set up an electronic service system for submitting an Order Proposal, it shall suffice for the Customer to transmit the proposal through this system.
- SPECTAIR shall be entitled to accept the Order Proposal within ten (10) calendar days of receipt of the same by SPECTAIR; acceptance shall be granted likewise in text form by way of an order confirmation.
- Upon conclusion of the contract, any changes relating to the agreed service shall only be possible insofar as the Parties reach an agreement on the changes in accordance with clauses 1 to 3 above.
- At the time of concluding the contract, the Customer shall inform SPECTAIR to the best of its knowledge and ability of all circumstances relevant for operating a flight. Should it transpire after the contract is concluded that the information was incomplete or inapplicable although the Customer was in a position to provide complete and accurate information and had been requested by SPECTAIR to do so, SPECTAIR shall reserve the right to request that the contract be amended. If the Customer objects to this amendment, both SPECTAIR and the Customer may withdraw from the contract; the Customer shall bear any costs already incurred for the preparation and operation of the flight.
§ 3 Customer’s duties to cooperate and to provide information
- The Customer shall cooperate in the requisite manner with the execution of the order.
- In good time prior to execution of the order, the Customer shall provide SPECTAIR, free of charge and at its own expense, with all information, materials, devices, documents, and processes, etc. necessary to execute the order. It shall grant SPECTAIR the usage rights necessary to fulfil the order.
- Where SPECTAIR performs the service on the Customer’s premises, the Customer shall also allow the employees of SPECTAIR, or third parties commissioned by it, during normal business hours and in line with the company’s access regulations, access to all rooms, installations (hardware, software, networks, etc.) and other work materials, which are necessary for the due and proper provision of the services by SPECTAIR.
- If the Customer does not fulfil the obligations incumbent on it pursuant to clauses 1 to 3 above, or fails to fulfil these on time, and if such action leads to delays in executing the order or to additional work and expense, SPECTAIR shall be entitled to charge the additional costs incurred as a result of this to the Customer.
- At the time of concluding the contract, the Customer shall inform SPECTAIR of all details relating to the order in preparation for the execution of the order. This includes notification of the purpose of the order, the intended manner in which the photos are to be used and the scope of expenses incurred by the Customer specifically for the execution of the order. This shall apply in particular for one-off events.
§ 4 Official and private permits
- SPECTAIR shall obtain permission to operate a flight from the competent aviation authority (so-called permission to fly); the Customer shall actively support SPECTAIR in this matter. It shall provide SPECTAIR, in particular, with all information and documentation necessary to apply for said permission. Sentence 1 shall apply accordingly insofar as further official permits in connection with the use of the airspace are necessary for the execution of the order.
- Should it transpire that the permits cannot be obtained by the agreed scheduled flight date, the Customer and SPECTAIR shall agree on a new scheduled flight date.
- The Customer shall bear the costs of the authorisation procedure pursuant to clauses 1 and 2 above.
- If the requested permit is not issued or should it transpire after conclusion of the contract that the execution of the order is in breach of applicable law, both Parties shall be entitled to withdraw from the contract.
- The Customer shall enquire as to whether or not the operation of a flight requires the use of third-party property, e.g. access to private property, or if photos and video recordings could invade the privacy of third parties; where this is the case, the Customer shall be responsible for obtaining the approval of owners and other holders of rights. Where the Customer fails to carry out a prudent check of any third party rights and where claims are asserted against SPECTAIR by third parties due to breach of obligation to obtain authorisation, the Customer shall be obligated to indemnify SPECTAIR against any such claims.
§ 5 SPECTAIR’s rights
- SPECTAIR is solely authorised to issue instructions to its employees.
- SPECTAIR shall be entitled to enlist the services of third parties, who hold the qualifications necessary to execute the order, to fulfil part or all of its obligations from the contractual relationship.
§ 6 Operating flights
- A scheduled flight date shall be agreed for the operation of a flight. By this date, both SPECTAIR and the Customer shall be obligated to obtain all official and private permits necessary for the specific order in accordance with Section 4; if these are not presented, the order shall not be executed.
- The decision on whether or not to operate a flight rests with the SPECTAIR pilot. On the scheduled flight date, the SPECTAIR pilot shall check if the flight can be operated safely. If there are any conditions that are more than likely to impede the operation of the flight or that could pose a risk to the legally protected interests of third parties, and if these conditions cannot be rectified on time, SPECTAIR shall reserve the right not to operate the flight. The decision shall be made by the pilot after weighing up all safety-relevant aspects, taking into account the justified interests of the Parties and the general public, and shall be binding for the Parties. Circumstances that could compromise flight safety are, for example:
- short-term meteorological conditions such as wind, precipitation, extreme temperatures;
- technical problems with the flight system; or
- risks, specific to the order, that make special security measures necessary.
If the order is not executed pursuant to clause 2, sentence 2 a) to c), the Parties shall immediately agree on a new scheduled flight date insofar as the order can be executed on another date and this is reasonable for the Customer, taking its interests into account.
- If the order is not executed for reasons that are not due to wilful or negligent conduct on the part of SPECTAIR or the Customer, each Party shall bear its own costs. If one of the Parties is responsible for the non-execution of the order, this Party shall bear the entire costs.
- Clause 2 above shall apply accordingly insofar as the weather conditions are more than likely to impair the quality of the photos; each Party shall bear its own costs.
§ 7 Cancellation of orders by the Customer
- The Customer may cancel an order at any time up to the date it is scheduled to be carried out.
- If the Customer cancels an order without said cancellation being due to conduct on the part of SPECTAIR and if it would have been possible for SPECTAIR to perform the service, the Customer shall only be exempted from its payment obligation insofar as it informed SPECTAIR of the cancellation with a notice period of more than four weeks prior to the scheduled flight date. The Customer shall still only be obligated to pay 50% of the agreed remuneration insofar as the Customer gives notice of cancellation within a period of one to four weeks prior to the scheduled flight date. In the event that notice of cancellation is given within a period of one week or less prior to the scheduled flight date, the Customer shall be obligated to pay 90%.
§ 8 Force majeure; Performance restrictions subsequent to conclusion of the contract
- If, after conclusion of the contract, an event of force majeure makes it impossible for the service to be performed either permanently or for a non-foreseeable period of time, the Customer and SPECTAIR may both withdraw from the contract. Force majeure is deemed to exist where there are circumstances that are beyond the control of SPECTAIR and that are, even with the utmost diligence, unforeseeable and thus unavoidable, e.g. natural disasters, shortage of raw materials, fire or terrorist attacks.
- In the event of obstacles that temporarily prevent the provision of the service within the meaning of clause 1 above, SPECTAIR and the Customer shall make a contractual adjustment, insofar as this is reasonable after weighing up the interests of both Parties. If the contractual adjustment is unreasonable for the Customer, because, for example, provision of the service at a later date is no longer of any economic value to it, it may withdraw from the contract.
- Clauses 1 and 2 above shall apply accordingly insofar as the conditions for such are met by persons who supply SPECTAIR with the work materials necessary to execute the orders or whom SPECTAIR usually commissions to perform subtasks.
- In the event of force majeure, the Customer shall not be entitled to claim compensation from SPECTAIR on grounds of impossibility of performance or delayed performance.
§ 9 Due date of remuneration; Payments
- After the order has been executed, payment shall be due to SPECTAIR as soon as SPECTAIR has forwarded random samples of collected data to the Customer and the Customer has no complaints about the quality. Once SPECTAIR has received payment, it shall hand over the entire data material to the Customer. Different agreements may be reached for the benefit of the Customer in individual cases.
- Payment shall be deemed to have been made where the invoice amount has been credited to SPECTAIR’s account.
The Customer shall only be entitled to set-off rights and rights of retention to the extent that the claim on which such is based has been established with legally binding effect or is undisputed.
§ 10 Material defects; Subsequent performance
- A defect shall be deemed to exist where the forwarded or transmitted data does not possess the agreed properties and quality. Where the Customer and SPECTAIR fail to reach a consensus of opinion on which properties were agreed, the details specified in SPECTAIR’s Non-Binding Offer and in the Customer’s Order Proposal shall be decisive. If the details specified by the Customer are incorrect, SPECTAIR shall not be held responsible for this insofar as it could assume that the details were accurate.
- If rectification of the defect is possible and can be reasonably expected of SPECTAIR, the Customer shall grant SPECTAIR as much time as necessary to rectify the defect. Insofar as rectification of the defect requires new photos to be taken using flight systems and the Customer can offer no reasons that would justify refusal to have new photos taken, the Customer shall give SPECTAIR the opportunity to take the new photos and shall offer its assistance to do so.
- Should the attempt to rectify the defect pursuant to clause 2 above fail, the Customer shall reserve the right to reduce the agreed remuneration or to withdraw from the contract. The same shall apply insofar as the Customer cannot be expected to agree to rectification of the defect either due to time constraints or for reasons that can be attributed to the conduct of SPECTAIR, or where the subject matter of the order renders this impossible. Withdrawal from the contract presupposes that the defect is substantial. This is usually the case where, due to the defect, the agreed remuneration would have been at least 5% less than it actually was.
- The additional expenses incurred in rectifying the defect, such as costs of labour and material costs, shall be borne by SPECTAIR.
§ 11 Liability and damages; Time limitation for claims
- The Customer shall be entitled to claim damages or compensation from SPECTAIR due to a breach of contractual and non-contractual obligations in the following cases:
- for injury to life, body or health resulting from a wilful or negligent breach of duty on the part of SPECTAIR or a wilful or negligent breach on the part of a legal representative or vicarious agent of SPECTAIR;
- for causation of any further damage that
- results from a wilful or grossly negligent breach of duty on the part of SPECTAIR or a wilful or grossly negligent breach of duty on the part of its legal representatives or vicarious agents; or
- results from a wilful or negligent breach of obligations that are essential for achieving the purpose of the contract, i.e. the fulfilment of which enables the due and proper execution of the contract and upon the observance of which the Customer regularly relies and should be able to rely (so-called cardinal obligations);
- for liability in the event of fraudulent concealment of a defect.
- If SPECTAIR is in default in providing the services without wilful intent or gross negligence, liability for damages shall be limited to an amount equivalent to the net amount of the agreed remuneration. If the Customer declares to SPECTAIR its intention to withdraw from the contract on grounds of a delay in providing the service, sentence 1 of this clause shall apply accordingly to the Customer’s claim for damages against SPECTAIR.
- In the case of slightly negligent conduct, SPECTAIR shall not be liable for damages that are unforeseeable and untypical where the breach of duty is viewed objectively. The damages shall also be deemed to be unforeseeable and untypical where the Customer failed to adequately inform SPECTAIR at the time of concluding the contract, pursuant to Section 3, clause 5, of the importance for the Customer of the execution of the order and of the related expenses, and SPECTAIR was therefore not in a position to take special precautions.
- For typical contractual and foreseeable damages, compensation for financial losses due to slightly negligent conduct shall be limited to an amount equivalent to the net amount of the agreed remuneration.
- The claims of the Customer against SPECTAIR shall expire after a period of one year with the exception of the cases outlined in clause 1 a) – e) above, for which statutory periods of limitation apply. The limitation period shall commence upon the forwarding or transmission of the data material to the Customer or, where a service other than data collection has been agreed, after this service has been performed in full.
- Clause 1 and clauses 3 to 5 shall apply accordingly to the vicarious agents of SPECTAIR.
§ 12 Place of jurisdiction; Applicable law
- The competent courts at the registered place of business of SPECTAIR shall be solely responsible for any and all legal disputes arising directly or indirectly from this contractual relationship. This shall also apply in particular insofar as the establishment of the contractual relationship and the effectiveness of such are under dispute.
- The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 13 Severability
Should individual provisions of these General Terms and Conditions of Business be or become ineffective, either in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by the statutory regulations.