Effective: June 1st ,2016
These Terms and Conditions (this “Agreement”) apply to the use of all services provided by Redbird SAS (hereinafter, “Redbird”) and establish the rights and obligations of Redbird, as a provider of services (the “Services”), and any customer (hereinafter the “Client(s)” or “you”) for use of the Services.
By accessing or using the Services or using any part of the web site (the “Website”), Client acknowledges that it has read, understood, and agreed to become bound by the terms of this Agreement. If Client is using the Services for personal use, the term “you” means the Client individually.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS THE SERVICES THROUGH YOUR ACCOUNT TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATE AND USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU ARE NOT AUTHORIZED TO USE THE SERVICES OR THE WEBSITE.
Violation of any of the terms and conditions below will result in the termination of this Agreement and termination of the Services.
The Services consist of all or parts of the following activities:
- Data collection of an area to be surveyed (hereafter “Surveyed Area”). The collected data (hereafter “Data Collected”) include but may not be limited to pictures of the Surveyed Area and its immediate neighborhood and locations in a coordinate system of these pictures. Examples of means to collect these data are airborne cameras and Global Navigation Satellite System (hereafter “GNSS”) devices.
- Setup within the Surveyed Area or its immediate neighborhood of ground marks easily identifiable by visual means (commonly named ground control points) and measurement of their locations with a precise GNSS device, access to an online upload platform to provide Redbird with the Collected Data.
- Processing of the Collected Data and computation of geospatial information and analytics,
access to an online software with features oriented towards the management of your operations.
- The Services may also include viewers or other client computer software provided to aid in use of the Services (“Client Software”).
1.1. Additional Agreements.
You and Redbird may agree on different quotations or fees from time to time, each of which will be subject to these terms and which, together with these terms, will constitute a separate contract, referred to below as the “Final Agreement”. In the event that You and Redbird have entered into a separate, signed Final Agreement concerning the Services and fees for the Services, the terms of the Final Agreement shall govern over any conflicting terms. Otherwise, this Agreement shall constitute the entire agreement between You and Redbird with respect to the Services and may not be modified or amended except by an instrument in writing signed by both parties that expressly states that it modifies or amends the terms. In the context of recurring services, Redbird reserves the right to contract with outside contractors for service contracts.
1.2. Conditions of Performance.
The location(s) of the Services provided by Redbird are fixed and delivery conditions are fixed conditions, unless stated otherwise.
Redbird shall execute the Services accurately and diligently and shall perform the Services to the best of its ability. The Services are, by nature, subject to hazards and Redbird is responsible for making decisions concerning the execution of the Services with regard to the conditions at any site during any particular time. You acknowledge and agree that conditions outside of Redbird’s control may impact the possibility of execution of the Services and may lead to the modification of the proposed timeline. These conditions include but are not limited to: (i) meteorological conditions, such as wind and rainfall, which could prevent the functionality of drones or other materials onboard or on the ground; (ii) site conditions that may require additional arrangements to guarantee the safety of the Redbird team and its subcontractors or the equipment of Redbird and its subcontractors; (iii) the site or its functionality not corresponding to the agreed upon specifications; and (iv) the general conditions of performance of the Services modified from the original quotation.
Redbird may, in its sole discretion, determine that the Services cannot be performed at the specific site or must be postponed. In the case that Redbird postpones or modifies the Services, You and Redbird shall mutually agree on a date and location for the execution of the Services within ten (10) business days after the date previously determined in the schedule.
The Client is responsible for making sure the ground control points are in good state, meaning that there clearly visible and usable during the data processing.
In no way, Redbird shall be held responsible for a lack of data accuracy due to a deterioration, loss or removal of the ground control points.
Redbird shall not be responsible for a deterioration, loss or removal of the ground control points and will be entitled to charge the Client to replace them if needed.
2. Intellectual Property Rights and Licenses.
Subject to the terms of this Agreement, including without limitation payment of applicable fees, and subject to applicable laws and regulations including without limitation export control laws and regulations, You grant to Redbird and Redbird accepts from You a non-exclusive, non-transferable and royalty free license to access, copy, display, use and transmit on the Website or through any other platform while using the Services your data and other content (collectively, the “Data Content”) for the benefit of the Services and its authorized users, and in accordance with this Agreement. All rights not expressly granted to You are reserved by Redbird.
Redbird grants to You and You accept from Redbird a limited, non-exclusive, non-transferable and royalty free license during the term of this Agreement to use the Website and the software as provided by Redbird in connection with the operation and maintenance of the Website. You are not granted a linking license to or from the Website.
2.2. Intellectual Property Rights.
As between You and Redbird, You shall be the owner of all rights, title and interest, including without limitation all intellectual property described within this Section 2.2 (collectively, “Intellectual Property”) to the Data Content that You provide to Redbird, and to all maps, graphics, reports, or other digital or printed forms into which that Data Content is transformed by Redbird in the course of performing the Services (collectively, your “Customer Data”). Redbird and Caterpillar will have the right to use the Data Content and your Customer Data for purposes of performing the Services, and as reference materials for purposes of testing and improving Redbird analytical processes and techniques. Client may choose to deny the access to Caterpillar, respectively, if Client, in its sole discretion, determines that it is not in the best interest of Client to disseminate the Customer Data to Caterpillar. Redbird and Caterpillar will have the right to create analytics and compile and freely use any data derived from Customer Data and data derived through provision of the Service (“Derived Data”). Derived Data does not include any confidential information of Customer, will not be used to identify Customer, will not contain any personal information, and will be anonymized data that is compiled with data from other customers. All right, title and interest in and to Derived Data will be owned by Redbird. Redbird will have no right to use your Customer Data for any other purpose or make your Customer Data available to any third party except in accordance with Section 10 of this Agreement, or with your instructions.
3. Confidential Information.
In the context of the Services, either party may provide to the other certain proprietary, trade secret, business or technical information (“Confidential Information”). Confidential Information shall include without limitation the following:
- The object of the Services entrusted by You to Redbird within the scope of the order forms;
- The information, data, aerial shots, documents and the derived results of the work (collectively the “Creations”) created or gathered by Redbird within the scope of its Services;
- Databases of any kind available to Redbird;
- All information related to a scientific, technical, commercial, or financial nature that may be communicated by one party to the other party in the context of the Services or to which the other party shall have access, including but not limited to information related to the activity or business of the other party, such as information about operations, technical or commercial expertise specifications, inventions, processes or initiatives, plans, product information, pricing information, designs, trade secrets, software, documents and data and information from a party, whether it was made available to the other party orally, in writing or in any other tangible form.
- The parties agree that each shall: (i) retain all Confidential Information in the strictest confidence and shall not disclose such Confidential Information to any person, third party, contractor, agent, assign, company, machine, or other person or entity without the other party’s written consent, (ii) not reproduce or duplicate any Confidential Information; (iii) respect the property and privacy notices affixed to all documents or tangible media which may contain any Confidential Information; (iv) return to the disclosing party, as soon as practicable, such Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party, in confidence, to its employees, officers, agents, consultants, or subcontractors (“Authorized Persons”) who: (i) have a need to know in connection with a use of Confidential Information permitted by this Agreement; and (ii) are bound by a legally enforceable obligation of confidence to the other party, by written agreement or as a matter of law, that it is at least as restrictive as the confidentiality restrictions herein.
The confidentiality restrictions herein shall not apply to and the receiving party shall have no liability to the disclosing party concerning any Confidential Information which the receiving party can demonstrate: (i) was part of the public domain or had fallen into the public domain at the time of its disclosure not caused by a failure on the part of the receiving party; (ii) the receiving party had prior knowledge of, without restriction, at the time of disclosure; (iii) was disclosed with the prior written consent of the disclosing party; (iv) was received by the receiving party, without restriction, from an independent third party who had the right to disclose the Confidential Information; or (v) was required to be disclosed by law, pursuant to a court order, by a governmental authority or other regulatory body, provided that the receiving party inform the disclosing party as soon as practicable of the existence of this order to allow it to demand the application of provisional measures to prevent in any way further disclosure of such Confidential Information. The restrictions contained under this clause shall continue to apply for three (3) years after the termination of this Agreement.
You agree to pay to Redbird the fees listed in the agreed quotation in the Final Agreement or, if none, the prices stated in an accepted purchase order or, if none, the prices posted on this Website, which Redbird may change from time to time. You agree to pay all such fees within thirty (30) days after the receipt of an invoice.
You will pay all fees without right of setoff or chargeback. Late payments will accrue interest at a rate equal to the lesser of (i) per month, compounded monthly, or (ii) the highest rate allowed by law. All amounts referenced in a quotation or on this Website, unless otherwise stated, are in United States dollars.
Redbird shall not be liable for any taxes, governmental fees or any other fees to be paid in relation to the Services. You agree that You will be responsible for all sales, VAT, or other taxes imposed on the sale or provision of Services to you. Such taxes and fees, if paid by Redbird, will be included in Redbird’s invoices to you.
This Agreement will remain in effect through the period for provision of Services identified in a quotation or, if none, indefinitely or until either party notifies the other of termination with thirty (30) days’ notice.
Unless a quotation or states otherwise, if You continue to use the Services beyond the period of time stated in the quotation, You will be considered to have extended the quotation on a month-to-month basis. During such extended period, Redbird may from time to time advise You of changing in pricing, which will become effective upon the date Redbird gives notice to You if an effective date is not given by Redbird.
Either party may immediately terminate this Agreement and your account upon the other party’s breach of any material provision of this Agreement, which breach is not cured within thirty (30) days of receiving written notice of the breach. Additionally, Redbird may immediately terminate this Agreement and your account upon any action by You that Redbird determines, in its sole judgment, to interfere with the operation or use of the Services. In the event of immediate termination for cause, Redbird shall be entitled to the entire Services fees for the month in which such termination occurred and You shall not be entitled to any refund or credit thereof.
Additionally, Redbird shall have the right to immediately suspend access to the Service by any user who attempts to access or use the Service for unauthorized or illegal purposes. In the event of suspension of a user by Redbird as provided above, You shall continue to be liable for payment of Services fees incurred by the continued provision of the Services, which shall not be reduced by the suspension.
While this Agreement is in effect, You will be able to download your Data Content and Customer Data from Redbird systems. Upon termination of this Agreement or in the event that Redbird becomes insolvent or bankrupt or is for any reason unable to provide the Services, on your request made within thirty (30) days of such termination or notice to You of Redbird’s inability to continue providing the Services, Redbird will make your Customer Data available for You to download for an additional period of thirty (30) days.
Provisions of this Agreement that may reasonably be interpreted or construed as surviving the termination of this Agreement shall survive termination of this Agreement.
7. Change in Services.
Redbird reserves the right to modify or discontinue any aspect or feature of the Services, including without limitation the Service’s content, functionality, or ability to be accessed and used with particular computer equipment. Redbird will provide You with notice of any reduction or elimination of particular Services. Redbird shall not be liable to You or any third party for any modification, price change, suspension or discontinuation of the Service.
8. Hyperlinked Material.
The website used to access the Services may contain hyperlinks to other sites on the Internet that are not owned or controlled by Redbird. Redbird does not endorse or assume any responsibility for any material on such sites, or any other material outside of the Service, that is accessed directly or indirectly by any such hyperlink.
9. Technical Support.
So long as You are current in the payment of fees owed under this Agreement, You will be entitled to technical support to correct errors in the functioning of the Services. Support will be provided by Redbird during normal business hours (8:00 am until 5:00 pm Pacific Time) unless otherwise specified.
Additional technical support services, available as part of Services, includes training in use of the Services, and consulting (“Additional Technical Support”). Use of the Additional Technical Support requires payment of additional fees to be agreed upon between the parties or, if not agreed upon, charged at Redbird’s standard rates
10. Security and Data Storage.
Redbird shall not permit or allow other persons to have access to or use your Customer Data other than Redbird’s employees, consultants or agents who have been notified of the restrictions on use of Customer Data set forth in this Agreement and have agreed to comply with those restrictions. Redbird agrees to maintain the confidentiality of your Customer Data.
Redbird will provide the Services on a server or through cloud services of its choice, which may be hosted by a third party selected by Redbird. Redbird currently uses a secure cloud services platform provided by Amazon Web Services (“AWS”), but this is subject to change at any time at Redbird’s discretion without notice to you. Data may eventually be hosted in the United States-based American servers of AWS, but You acknowledge that: (i) for all customers, the data processing will not be exclusively performed on U.S. servers; and (ii) for some customers, including but not limited to those which are not in the U.S., the data may not be fully hosted in the U.S. If You request a different location or hosting provider, Redbird may charge additional costs.
Redbird has taken, and will continue to take, significant measures to provide a high level of security for your Customer Data. However, Redbird cannot guarantee the absolute security of information delivered to Redbird during your use of the Service and shall not be liable in any way for compromise of your Customer Data.
Redbird reserves the right to include Client name(s) on a list of references.
12. Communications and Relations Between Parties.
To ensure an effective and efficient exchange of information and technical instructions, both parties shall designate a support staff member to coordinate correspondence between the parties. Redbird shall respect and ensure that its staff complies with all rules, procedures and regulations at your site that are communicated to Redbird, including safety standards and IT standards.
13. Relationship of the Parties.
With respect to this Agreement and the Services, You and Redbird are acting as independent contractors and neither You nor Redbird is an agent or principal, partner, joint venture, or employer or employee, and the parties have no relationship other than that of independent contracting parties. Neither party has any authority to assume or create any obligation for or on behalf of the other party, express, implied, with respect to this Agreement, or otherwise.
14. Redbird Representations and Warranties.
Redbird warrants that the Services will substantially conform in all material respects with their user documentation, and that technical support will be provided in accordance with good professional standards.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY STATUTORY OR IMPLIED WARRANTIES OF NON-INFRINGEMENT. Redbird also does not make any express or implied warranties as to the usefulness of any information, data, apparatus, product or process disclosed on or made available through the Services.
Your exclusive remedy against Redbird for breach of the foregoing warranty will be re-performance of the Service, provided that You notify Redbird in writing of the breach within seven (7) days of becoming aware of the breach.
15. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL REDBIRD BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION ARISING IN CONNECTION WITH THE SERVICES. REDBIRD’S ENTIRE LIABILITY HEREUNDER IS LIMITED TO THE AMOUNT RECEIVED BY REDBIRD FROM YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR, IN THE ABSENCE OF SUCH AN EVENT, $1,000.00.
You agree to indemnify Redbird and its officers, agents, employees, partners and licensors from and against any claim, demand, loss or damages, including without limitation reasonable attorney fees, arising out of or related to your use or reliance on the Services or any content from the Website, or arising from your violation of this Agreement.
Waiver. The failure of Redbird to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, that provision shall be deemed severable from this Agreement and all remaining provisions shall remain in full force and effect.
Headings. All headings in this Agreement are for convenience only and have no legal or contractual effect.
Licenses. You are responsible, at your cost, for obtaining any and all governmental licenses or approvals necessary to provide your Customer Data to Redbird.
Governing Law and Jurisdiction. The terms of this Agreement shall be governed by and construed under the laws of the France without giving effect to any principles of conflict of laws.
You agree that any action at law or equity arising out of or relating to this Agreement shall be brought exclusively in an appropriate court in Paris, France. You hereby consent and submit to such jurisdiction and waive any objection to such venue.
Dispute Resolution. Any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Permanent Court of Arbitration, (“CPA”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Paris, France in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to all costs and attorney fees.
Assignment. You may not assign this Agreement without written approval of Redbird and the assignee to the terms of this Agreement. Redbird may assign this Agreement to any entity that acquires, by merger, consolidation, asset purchase or otherwise, any or all of the business of Redbird.
Notices. Any notices or other communication required or permitted to be made or given to either party under this Agreement shall be in writing and shall be sufficiently made or given on the date of mailing if sent to such party by email (using the email addresses customarily used by the parties for communications) or facsimile transmission; provided, however, that notices of default or other notices asserting legal rights must also be provided by commercial courier.
If you have questions about this Agreement or about Redbird, please contact us:
16, rue de la Comète, 75007 , Paris – FRANCE