Definitions
“Agreement” means these Terms and Conditions together with the Quotation and the Brief.
“Brief” means the brief described in the Quotation which sets out the Services and Deliverables required as well as any other information, including but not limited to details of site access, property position and contact details.
“CAA” means Civil Aviation Authority.
“Consents” means i) the consent of all persons who may feature in any photography and/or videography Services or be recognizable in any Media; and ii) any consent and/or permission which is required in relation to any location, building, land or other physical or intellectual property.
“Customer” and “You / Your” means the company, firm, person, persons, corporation or public authority who acting as principal is entering into this Agreement and who is identified in the Brief as such and includes their successors or personal representatives.
“Deliverables” means any tangible results of the Services produced or generated by THAP including photographs, negatives, prints and literary works produced or generated by the THAP in the course of providing the Services.
“Drone” means an unmanned aerial vehicle capable of taking video and/or photographs.
“Force Majeure Event" means any event occurring after a Brief been agreed which is beyond the reasonable control of a party and which affects the performance by that party of its obligations, including without limitation: acts of God, inclement weather, criminal acts or omissions, epidemics or pandemics, any form of Government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, and floods, fires, explosions or other catastrophes.
“Material” means all photographs, prints, transparencies, images, negatives, digital scans, digital files, design, artwork, montages, drawings, engravings, video recordings and any other photographic product or other product comprising or containing production or reproduction of any work related to the Brief.
“Media” means the media described as such in the Quotation.
“Operational Commencement” means the first deployment of a Drone in terms of the Project.
“Price” means the sums as stated on, or calculated in accordance with, the Quotation exclusive of VAT and any other sums due to THAP as referred to in the Agreement.
“Project” means all stages of Services provided to the Customer including preparation beforehand, the operation of the Drone and the processing of Media.
“Quotation” means the quotation provided to the Customer by THAP in relation to the Brief which sets out the Price, scope and other details of this Agreement and which has been accepted by the Customer by email or other electronic written means.
“Services” means the services to be performed by THAP under this agreement.
“Site” means the site(s) identified in the Brief.
“THAP” means Thomas Haywood Aerial Photography Limited, a company incorporated in Scotland (registered number SC505643) and with its registered office at Rosslyn Associates, The Walled Garden, South Building, Bush Estate, Edinburgh, Midlothian EH26 0SD.
“Timescale” means the date(s), time(s) or timescale identified in the Brief.
1. Scope
1.1 The scope is as described in the Brief. Sound recording is not included within videography unless expressly referred to in the Brief.
1.2 The Customer acknowledges and accepts that THAP may require changes to the Brief where these are necessary to enable THAP to provide the Services in accordance with the terms of its CAA license or otherwise in accordance with relevant laws, such as workplace health and safety laws.
1.3 THAP is entitled to use its judgement regarding style, artistic input, composition, finish and final look in meeting the Brief.
1.4 Unless specifically identified in the Brief that time is of the essence then performance by THAP in accordance with the Timescale is not of the essence.
2. Customer Obligations
2.1 The Customer shall provide access to the Site in accordance with the Timescale.
2.2 The Customer shall be responsible for obtaining, in writing, permission from, and signed by, the owner of the Site to fly the Drone over the Site. THAP shall be entitled to refuse to fly the Drone in the absence of the requisite written permission.
2.3 The Customer is responsible for obtaining any other permissions/approvals necessary to enable THAP to provide the Services and provide the Deliverables under this agreement. Where the Customer fails to obtain required permissions, it will be liable for cancellation as set out in clause 9.3.
2.4 Where the Services are to be provided on a building or premises not owned or controlled by THAP, the Customer will provide THAP with an orientation to the site and procedures relevant to the Services and Deliverables prior to the Date(s) for Services.
2.5 THAP relies on the Customer to provide accurate and complete information. Any failure to provide accurate and complete information affecting the delivery of Services by THAP may result in a charge being made by THAP to cover time, associated travel costs and any other costs reasonably incurred by THAP such costs not exceeding the Fee.
2.6 The Customer must comply with all relevant H&S Regulations and where necessary inform THAP what PPE will be required PRIOR to arrival on site. If they do not inform prior, THAP will charge at Hourly rate to go get that PPE from a local source.
2.7 The Customer must comply with all reasonable THAP requests and instructions on days the Drone is operational and not obstruct or impede performance by THAP in any way.
Additional Customer obligations for Giraffe Services
2.8 All spaces to be covered by the virtual reality scanning camera (G360) must be cleaned and tidied prior to arrival of THAP - THAP will not clean up and do the job for them nor will be do it digitally either!
2.9 The spaces to be scanned must be vacated prior to any G360 camera being used
2.10 The Customer must provide access to the property for the work
(Note: no external power source is required for the G360 camera)
3. Copyright
3.1 THAP will retain the copyright in the Deliverables and no part thereof may be used or reproduced by the customer in any form until payment of the Price has been made to THAP in full, together with any other sums due. THAP will retain the copyright in all other Material.
3.2 Upon payment of the Price and all other sums due, THAP shall assign the copyright in the Deliverables, subject to the Customer granting an exclusive, transferable, sub-licensable, royalty-free, worldwide license to THAP to use the Deliverables and any Material for marketing purposes.
3.3 The Customer agrees that THAP may display the Customer’s name and logo on its website.
4. Aerial Approvals
4.1 Where CAA aerial approval is required, THP will prepare and submit the required application.
4.2 THAP has no responsibility or influence regarding the time taken to obtain CAA aerial application approval. The Customer acknowledges that delay in obtaining CAA aerial approval may affect Project Timescales. The Customer must allow sufficient lead times for the CAA aerial approval process and THP cannot be held responsible for delay caused by this process.
4.3 THP will request details necessary to obtain CAA approvals from the Customer and the Customer must provide these to THP as soon as possible. THP relies on the accuracy of any information provided by or on behalf of the Customer and cannot be held responsible for consequences of the Customer providing inaccurate or incomplete information.
5. Drone Operation
5.1 All decisions in relation to the operation of the Drone, and assessment of the prevailing conditions, shall be at the sole discretion of THAP. The customer shall comply with all of THAP’s reasonable instructions. Where the customer unreasonably interferes, or attempts to influence, the operation of the Drone, THAP shall be entitled to cease flying.
5.2 The Drone will not be operated in the following conditions:
5.2.1 winds over 35 mph
5.2.2 precipitation or a reasonable risk thereof
5.2.3 over built up areas (except where specific permission has been obtained)
5.2.4 within 150 metres of crowds of 1000 people or more (50m if less than that)
5.2.5 within 50 metres of roads and/or people who are not within the control of THAP
5.2.6 within 30 metres of any person who has been notified but is not in direct control of the pilot or his crew
5.2.7 within 3km of an airport or a 5km in line of an airport runway unless specific permission can be obtained from aviation authorities.
5.2.8 where to do so would be a breach of law or the lawful directions of, or conditions imposed by, any competent authority.
5.3 No other Drones shall be operating at, from or in the vicinity of the Site whilst THAP’s Drone is in use unless agreed otherwise by the Drone pilots on the day.
5.4 Where weather conditions or other factors outwith THAP’s control prevent Drone flight, THAP shall be entitled where it is reasonable and technically feasible to do so, to employ ground photography and/or other forms of image collection to fulfil the Brief.
Night flying
5.5 Flying at night is defined as 30 minutes after sunset and 30 minutes before sunrise. If night flight is necessary, then the following conditions will apply:
5.5.1 Drones will not be flown more than 300 ft above ground level
5.5.2 Drones will not be flown more than 300m from the Pilot in Charge.
5.5.3 A proper risk assessment will be conducted during daylight hours and access to the Site must be given to THAP to allow for this.
6. Deliverables
THAP will supply Deliverables in accordance with the Timescales in the Brief. The Customer will have one week to review and raise any queries regarding the Deliverables, failing which they will be deemed to be accepted. Subject to the foregoing provision, there shall be no right to reject the Deliverables on the basis of style or composition.
7. Price and Payment
7.1 If a deposit is specified THAP will carry out no work until the deposit has been paid. The deposit is to be paid within 7 days of the acceptance of the Quotation. The deposit shall not be returned.
7.2 Where additional work is required by the Customer that shall be paid for at the hourly rate of £90 unless otherwise agreed in writing. Additional work shall include (a) any changes to the Site or the Timescale, and (b) anything required by the Customer which is not specifically referred to in the Brief, including endeavouring to overcome any restrictions on access to the Site.
7.3 The Price will be payable within 30 days of the date of invoice. In the event of late payment of an invoice interest and compensation will be due at the rates set out in the Late Payment of Commercial Debts (Interest) Act 1998 and ancillary/amending legislation.
7.4 The Customer will be responsible for all fees in relation to CAA and other approvals.
7.5 Expenses shall be payable in addition to the Price and shall be charged at cost. Expenses may include: travel at an agreed price per mile, accommodation where required, expenses incurred in the course of the Agreement such as data processing costs and fees of third parties, as well as CAA or other fees in relation to approvals or permissions.
7.6 Where the Customer is a corporate entity then the directors of the company, or the members of the limited liability partnership, are personally liable for payment of all sums due under, or arising out of, this Agreement.
8. Consents
8.1 The Customer warrants that it has obtained all Consents required for THAP to perform the Services.
8.2 Without prejudice to the foregoing generality, the Customer acknowledges and accepts that it is responsible for notifying any person that shall be present on the Site(s) or during the Project, as well as the proper authorities, owners of property, government officials (where applicable), agents or representatives and any other applicable parties that video and/or audio will be recorded by THAP.
8.3 Unless specifically agreed in the Brief or otherwise in writing, THAP will provide the Services and the Deliverables without obtaining any consent or release forms. It is solely the responsibility of the Customer to obtain such permissions and to instruct THAP whether to include in any Materials or Deliverables images of individuals or other where consent or release forms have not been obtained.
8.4 The Customer agrees to indemnify and hold harmless THAP from and against any suit, claim, demand, damage, cost, liability, loss and expense (including but not limited to reasonable legal fees) arising out of the Customer’s failure to obtain Consents under this Agreement.
9. Postponement, Cancellation, Breach and Termination
9.1 In the event that the customer, acting reasonably, seeks to postpone the Timescale in the period between 48 and 24 hours before the Timescale due to the risk of inclement weather, no additional charge shall be made by THAP. A request to postpone will not be effective until made in both writing and by telephone call to THAP (where there is no answer on the telephone a message identifying the postponement must be left). A postponement within 24 hours of the Timescale shall be dealt with as if clause 9.2 applies.
9.2 Where THAP attends the Site and the weather conditions are, in THAP’s sole discretion, unsuitable for flying THAP shall be entitled to charge an additional fee of £200 plus the Travel Rate, exclusive of VAT. The parties shall act reasonably in agreeing a revised Timescale within the next 6 weeks. If a revised Timescale cannot be agreed THAP shall be entitled to retain the Deposit.
9.3 In the event of the customer a) cancelling the Brief less than 7 days prior to the date of Operational Commencement, or b) failing to attend on the day, the Price shall be payable in full. Cancellation is not effective until received in writing by THAP.
9.4 In the event of breach by THAP the customer will afford THAP a reasonable opportunity to complete the Brief. THAP’s liability for breach shall be limited to the lesser of the Price and £500.
9.5 In the event of the Customer’s breach THAP shall be entitled to claim damages in addition to retaining the deposit.
10. Data Protection
10.1 In this Agreement “Data Protection Laws” means all applicable laws in relation to data protection and privacy including the Data Protection Act 2018 and the European Union General Data Protection Regulation 2016/679 (GDPR). Definitions used here are as they appear in the Data Protection Laws.
10.2 The parties acknowledge that under this Agreement the Customer is the Data Controller and THAP is the Data Processor. As such THAP’s processing of the Media and other Personal Data is carried out on the Customer’s behalf and subject to the Customer’s instructions.
10.3 Except as expressly permitted by the Agreement, THAP will only process Personal Data in accordance with the Customer’s instructions and authorisations and solely as strictly necessary for the performance of our obligations under the Agreement.
10.4 THAP will take appropriate technical and organisational security measures in respect of the Personal Data (including against the unauthorised or unlawful processing, access or disclosure of the Personal Data and against accidental loss or destruction of, or damage to the Personal Data).
10.5 The processing of Personal Data under this Agreement is subject to the THAP Privacy Policy, which the Customer acknowledges has been read and understood.
11. Limitation of Liability
11.1 Notwithstanding any other provision in this agreement, THAP’s liability to the Customer for death or injury resulting from its own negligence or that of his employees, agents or sub-contractors shall not be limited.
11.2 THAP’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or delictual act or omission including negligence arising under or in connection with this Agreement shall be limited to an amount equal to the lesser of the Project Price or and £500.
11.3 THAP shall not be liable to the Customer for:-
11.3.1 any damage or injury to the extent that it is caused by or arises from the acts or omissions of the Customer, Third Parties or others (not being THAP’s servants, agents or sub-contractors);
11.3.2 any loss or damage in circumstances where THAP has no control.
11.4 THAP shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer, even if the loss is reasonably foreseeable or THAP has been advised of the possibility of the Customer incurring it.
11.5 Without prejudice to the foregoing generalities, THAP will not be held responsible for any losses arising from the supply by the Customer or others of incorrect or incomplete information, or the Customer’s or others’ failure to supply any appropriate information or the Customer’s failure to act on the advice of THAP or respond promptly to communications from THAP or other relevant authorities.
11.6 THAP shall not be liable to the Customer by reason of any delay in performing or any failure to perform any of THAP’s obligations in relation to the Services if such delay or failure is due to a Force Majeure Event.
12. Indemnification
12.1 The Customer agrees to indemnify and hold THAP harmless from and against any suit, claim, demand, damage, cost, liability, loss and expense (including but not limited to reasonable legal fees) arising out of, caused or contributed to either directly or indirectly by the Customer or any person the Customer is responsible for (including personnel and sub-contractors).
13. Miscellaneous
13.1 No variation to this Agreement shall be binding unless agreed in writing to between the authorised representatives of THAP and the Customer.
13.2 THAP shall be entitled to subcontract any or all or the Project to suitably qualified third parties. Other than this, neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.3 Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement. Any waiver by a party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
13.4 The rights and remedies provided for by this Agreement are cumulative with and not exclusive of any rights or remedies provided by law.
13.5 This Agreement set out the entire understanding of the parties with respect to their subject matter and replace any prior agreements or understandings or representations (unless fraudulent), whether written or oral.
13.6 This Agreement shall be governed by and construed in accordance with the laws of Scotland the courts of which shall have non-exclusive jurisdiction.
Drone Mapping Caveat:
We are NOT a survey company licensed surveyors, nor do we claim to be. We do not guarantee the accuracies of our spatial products or derived measurements from but we do inform the reader of our products that certain imaging and collecting platform positional accuracies are involved through caveats.
Our products SHOULD NOT be used to authenticate measurements of any kind and be used in any legally-binding documentation unless these products have been rectified and authenticated with additional positional information that have been provided by an accredited surveyor/surveying company