This English translation is provided for convenience. The German version is legally authoritative.
TERMS AND CONDITIONS
1. SCOPE
1.1 Terms and Conditions (“Terms and Conditions”) apply to all contracts relating to services in the area of surveys, images, thermography and drone inspections and as described on the website https://flyhighindustrial.de (hereinafter “website”) are offered. The contractual partner or provider for the client is Florian Reeh, [FlyHigh]. Industrial, Malmöer Str. 7, 10439 Berlin (hereinafter provider)
1.2 The agreements made between us and you as the client result exclusively from the following general terms and conditions, the data protection declaration and an order confirmation or a contract. When fulfilling the contract, the safety of all people involved is always the top priority, as is the safety of the airspace and the safety of the equipment used. Only the person responsible for FlyHigh on site as the contractor and/or the responsible authorities has the authority to make decisions in this regard.
1.3 Deviating, contradictory or supplementary general terms and conditions of a client do not apply. Such conditions of the client only apply if and to the extent that we have expressly agreed to their validity in writing. Individual agreements made with the client in individual cases (including additional agreements, additions and changes) take precedence over these terms and conditions. For the content of such agreements, a written contract or our confirmation at least in text form is decisive, subject to proof to the contrary. These do not lose their validity even if we carry out the service without reservation despite being aware of the client's conflicting or deviating terms and conditions (from our General Terms and Conditions).
1.4 We are entitled to change or adapt these General Terms and Conditions at any time, provided that the changes are reasonable for the client, taking our interests into account.
1.5 Consumers within the meaning of these General Terms and Conditions are natural persons with whom a business relationship is entered into without any commercial or independent professional or commercial activity being attributed to them. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons with whom business relationships are entered into, who act in the exercise of their commercial or independent professional activity, including those who fulfill the merchant status in accordance with the provisions of the Commercial Code. Customer or purchaser within the meaning of these terms and conditions are both consumers and entrepreneurs and are referred to as clients (client). These General Terms and Conditions only apply to entrepreneurs, legal entities under public law or special funds under public law
2. INFORMATION, ADVICE, PERFORMANCE PARAMETERS
2.1 Information and offers regarding the services are based exclusively on the experience of the provider. The stated values are not to be viewed as legally binding values, so deviations are possible within reasonable tolerance limits. All information about services, including the information provided by the provider in the offers and other publications, in particular technical information, is an expression of average empirical values. Changes to the content and execution of the services on the part of the provider are made at its reasonable discretion.
2.2 The provider is free to use the activities of third parties to provide the contractual services, in particular to carry out the services offered.
3. CONCLUSION OF CONTRACT/CHANGES TO CONTRACT
3.1 Upon request, the provider will send the client a non-binding offer for the desired service with a detailed description of the service and corresponding prices (hereinafter “non-binding offer”). Based on the non-binding offer, the client makes a binding offer to the provider (hereinafter “order offer”) to commission the service described in the non-binding offer.
3.2 The order offer must be submitted in text form. If the provider has set up an electronic service system to submit an order offer, it is sufficient if the client sends the offer using this system.
3.3 The provider is entitled to accept the order offer within ten (10) calendar days of its receipt by the client; Acceptance also takes place in text form with an order confirmation.
3.4 After the contract has been concluded, changes in connection with the agreed service and remuneration are only possible if the parties agree on the changes in accordance with sections 1 and 3.
3.5 When concluding the contract, the client will inform the provider in writing or in text form to the best of his knowledge and belief about all relevant circumstances regarding the execution of a flight or the provision of services. If it turns out after the conclusion of the contract that the information was incomplete or inaccurate, even though the client was able to provide complete and correct information and was requested to do so by the provider, the provider reserves the right to demand that the contract be adjusted. If the client does not agree to the adjustment, the provider and the client can withdraw from the contract; The client bears the costs already incurred to prepare and carry out the flight.
3.6 If the scope of the order volume differs significantly from the order placed during order processing, the provider must immediately notify the client in writing of any changes or additional services. The provider is entitled to additional remuneration if the following three conditions are cumulatively met when awarding a contract with regard to the services provided: a) The services must have been necessary for the fulfillment of the contract. b) The services must have corresponded to the presumed will of the client. c) The services must have been reported to the client immediately after execution.
4. CUSTOMER’S COOPERATION AND INFORMATION OBLIGATIONS
4.1 The client must cooperate in the execution of the order in the necessary manner.
4.2 The client provides the provider with all the information, materials, equipment, documents, processes, etc. necessary for the execution of the order in good time before the execution of the order, free of charge and at his own expense. He grants the provider the necessary rights of use for the purpose of fulfilling the order. If the client supplies or has to supply data that becomes part of the ordered product, the client alone is responsible for the accuracy of this data provided by him.
4.3 If the provider works for the client, the client must also provide the provider's employees or third parties commissioned by the provider with access to all rooms, installations (hardware, software, networks, etc.) and other work equipment required for the proper provision of the services by the provider within the framework of normal operating hours and within the company's access regulations.
4.4 If the client does not fulfill the obligations incumbent on him according to points 1 to 3 or does not fulfill them in a timely manner and this leads to delays in the execution of the order or to additional work, the provider is entitled to invoice the client for the additional costs incurred as a result.
4.5 The client will inform the provider about all details in connection with the order when concluding the contract in order to prepare for the execution of the order. This also includes communicating the purpose of the order, the manner in which the recordings are planned to be used and the extent of the expenses incurred by the client specifically to carry out the order. This is especially true for one-off events.
5. GOVERNMENTAL AND PRIVATE PERMITS
5.1 In order to carry out a flight, the provider will obtain permission for ascent from the responsible aviation authority (so-called ascent permit); the client will actively support the provider in this regard. In particular, he will provide the provider with all the information and documents required for the application. Sentence 1 applies accordingly to the extent that further official approvals in connection with the use of the airspace are required to carry out an order.
5.2 If it turns out that the approvals cannot be obtained by the agreed order date, the client and the provider will agree on a new order date.
5.3 The costs of the approval process according to points 1 and 2 are borne by the client.
5.4 If the requested approval is not granted or if it turns out after the conclusion of the contract that the execution of the order violates the applicable laws, both parties have the right to withdraw from the contract.
5.5 The client is solely responsible for whether the execution of a flight requires the use of someone else's property, such as entering private property, or whether the images and films could violate the privacy of third parties; If this is the case, the client is responsible for obtaining the appropriate permissions from owners and other rights holders. If the client fails to carefully examine any third-party rights and claims are made against the provider by third parties for violating permission obligations, the client is obliged to release the provider from any claims upon first request. The provider points out that people who appear as “accessories” in the image may be able to assert personal rights if the images are made available to an undetermined group of recipients. The provider is not liable for this.
6. POWERS OF THE PROVIDER
6.1 The provider alone has the authority to issue instructions to its employees.
6.2 In order to fulfill part or all of its obligations under the contractual relationship, the provider is entitled to use the activities of third parties who have the qualifications necessary to carry out the order.
7. CONDUCT OF FLIGHTS
7.1 An order appointment is agreed to carry out a flight. By this date, the provider and the client are obliged to obtain all official and private approvals for the specific order in accordance with Section 5; if these are not available, the order will not be carried out.
7.2 The decision to carry out a flight rests with the provider's pilot. On the day of the order appointment, the provider's pilot checks whether the flight can be carried out safely. If there are circumstances that are very likely to affect the safe operation of the flight or could endanger the legal interests of third parties and these circumstances cannot be remedied in a timely manner, the provider reserves the right not to operate the flight. The decision is made by the pilot after weighing all safety-relevant aspects, taking into account the legitimate interests of the contracting parties and the general public, and is binding on the parties. Circumstances that may affect flight safety include: a) short-term meteorological conditions such as wind, precipitation, extreme temperatures; b) Occurrence of technical problems in the flight system that are not the fault of the provider; or c) order-specific hazards that require special safety measures. d) an official order due to a specific security or threat situation
7.3 If the order in accordance with Section 7.2 lit. a) to d) is not carried out, the parties will immediately agree on a new date for the order, provided that the order can be carried out on a different date and this is reasonable for the client, taking into account his interests.
7.4 If the order is not carried out for reasons for which neither the provider nor the client can be accused of intentional or negligent behavior, each party shall bear its own costs. If the reasons for the cancellation of the order are the responsibility of one of the parties, this party must bear the entire costs.
7.5 7.2 applies accordingly if the weather conditions are very likely to affect the quality of the recordings; each party bears its costs.
8. PRICING
All prices stated are net prices and do not include VAT and, if necessary, plus shipping or forwarding costs. The price calculation and payment is made in euros. The client bears additional costs due to payment in foreign currencies.
9. PAYMENT TERMS
9.1 Invoice amounts are generally due within 14 days of the invoice being issued. If this is not done, the client will be in default of payment without the need for a reminder. The amount of interest is determined according to legal regulations.
9.2 If the client refuses to accept or collect the goods on the agreed delivery date for no reason or if he delays them for reasons for which we are not responsible, the service provided is due for payment as soon as the client has received notification from us that it is ready for delivery or collection. The right to assert further damages due to delay remains reserved.
9.3 The client only has the right to offset if his counterclaims have been legally established or have been recognized by us. The client can only exercise a right of retention if his counterclaim is based on the same contractual relationship.
9.4 The provider is entitled to create partial invoices / advance payments / advance payment invoices. These will be billed based on the partial services provided up to that point, in accordance with the proof of performance provided. Upon successful completion of the services to be provided, an invoice/final invoice will be created taking into account the services already provided and billed.
10. CANCELLATION BY THE CLIENT
10.1 In the event of premature termination of the order by the client, the legal regulation of §649 BGB is modified as follows: a) If the termination is received no later than 3 weeks before the planned execution date, the client owes 20% of the agreed remuneration, b) If the termination is received no later than 2 weeks before the planned execution date, the client owes 30% of the agreed remuneration. c) If notice of termination is received no later than 1 week before the planned execution date, the client owes 40% of the agreed remuneration. d) If the termination is received within 3 days before the planned execution date, the client owes 60% of the agreed remuneration. e) If the termination is received 24 hours before the planned or after the execution date, the client owes 90% of the agreed remuneration.
10.2 A crediting of saved expenses and a crediting of interim earnings actually achieved or maliciously omitted in accordance with Section 649 Sentence 1 Paragraph 2 of the German Civil Code (BGB) expressly does not take place in cases of early termination by the client.
10.3 Point 1) does not apply if the early termination occurs for reasons that are beyond the control of the client and are based on force majeure. This includes, in particular, the impossibility of carrying out the order due to storms, political upheavals, illness or death of a person involved in the production process who cannot be replaced.
10.4 In any case, in the event of early termination, the client owes reimbursement for proven services provided, third-party expenses and in particular travel and accommodation costs.
11. PROVIDER'S RIGHT OF WITHDRAWAL
11.1 The provider is entitled to withdraw from the contract if: a) the provision of the service is objectively or subjectively impossible within the meaning of §275 BGB, b) there is no free access to the object that is the subject of the service at the agreed times. c) the client does not fulfill his obligations to cooperate in accordance with Section 4 and this makes the execution of the order unreasonably difficult, d) due to external conditions (e.g. weather conditions, visibility/light conditions, high KV index) it is not possible to carry out the order properly, or it cannot be carried out without a significant risk to the safety of the people involved and/or the technology used, e) an official approval granted to carry out the order at our request (e.g. filming permit, flight permit, access permit) is revoked or withdrawn, or loses its validity for other reasons.
11.2 Withdrawal must be declared and justified to the client in text form. If the withdrawal occurs for reasons for which the client is responsible, the provider's claim to remuneration remains in full.
11.3 In any case, if we withdraw from the contract, the client owes reimbursement of proven expenses, in particular travel and accommodation costs.
12. DECREASE IN PERFORMANCE
12.1 With regard to the acceptance of services, the provisions of the Civil Code (BGB) apply.
12.2 The services provided by the provider are deemed to have been accepted if a handover and/or notification of completion has been made to the client in text form, a period of two weeks has passed since completion and the client has not expressly objected to acceptance during this time.
12.3 The regulation of Section 640 Paragraph 1 Sentence 3 BGB is not affected by this.
13. DELIVERY OF SERVICE
13.1 In the case of digital delivery, for example by email, the provider ensures - to the extent possible by using up-to-date virus scanners - that the services provided are virus-free. However, the provider assumes no liability in the event that virus-related damage occurs.
13.2 If the delivery is not digital, the provider selects the respective transport company. The client bears the costs for packaging, shipping and delivery, even for partial deliveries.
13.3 The provider is entitled to make partial deliveries.
13.4 When the services are handed over to the respective transport company, the risk of any damage is transferred to the client.
13.5 Shipping is generally uninsured. In this case, the risk of accidental loss or accidental deterioration of the goods passes to the client when the goods leave the provider's office at the latest. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs. At the request of the client, an insured shipment will be made under the conditions of the respective transport company at his own expense.
14. COPYRIGHT & USAGE RIGHTS
14.1 The surveying, photo, laser or film recordings created by the provider are copyrighted material of the provider
14.2 The client is generally granted a simple, i.e. non-exclusive right of use and exploitation of the material created, unless otherwise expressly agreed in writing.
14.3 The client is entitled to transfer the right of use in whole or in part to third parties within the scope of the contractually agreed use or to have the rights exercised by third parties. However, this must be reported in advance in writing.
14.4 The use - in particular the distribution and publication - of the provider's copyrighted services is only permitted if the provider can be clearly identified as the author of these services. If this attribution obligation is violated, the provider is entitled to prohibit the use of the copyrighted services - without identifying the author
14.5 The provider reserves the right to use visual material (photos, videos, screenshots, renderings, etc.) for advertising purposes on the provider’s websites, on social media platforms (e.g. Facebook, XING, LinkedIn, Instagram, TikTok), in print media (e.g. flyers, brochures, trade journals), at trade fairs, in newsletters and in the provider’s promotional films, unless the provider has signed a confidentiality agreement or a different written agreement has been made.
14.6 The client expressly agrees that individual works (image and video material) may be used as a reference by the provider for advertising purposes. The client expressly agrees that he may be named as a reference for the provider unless a confidentiality agreement or a different written agreement has been made.
14.7 The granting of simple rights of use and exploitation is subject to the suspensive condition of full fulfillment of all payment claims of the provider against the client arising from the respective contractual relationship. In the event of a dispute over payment claims, exploitation of the rights of use and exploitation is not permitted after a written request due to the provider's retention of title.
15. WARRANTY
15.1 For companies or merchants within the meaning of the Commercial Code (HGB) as clients, the statutory warranty rights in accordance with §377 HGB generally apply. However, the prerequisite for the client's pending warranty rights is that he notifies the provider in writing of any defects immediately, but no later than 14 days after the service has been provided. If this notification is not made, the client will be excluded from warranty rights. Warranty claims expire within one year from the date of transfer of risk. Any liability for damages beyond this is excluded – regardless of the legal basis. This applies in particular to claims for damages for negligence in concluding the contract, for other breaches of duty or for tortious claims for compensation for property damage. This limitation of liability also applies in the event that instead of a claim for damages, a claim for reimbursement of useless expenses is asserted. Exclusions and limitations of liability apply accordingly to the personal liability of our employees, representatives and vicarious agents
15.2 The provider expressly assumes no liability for the suitability of the geodata supplied by the client for a purpose pursued by the user. Furthermore, the provider expressly does not guarantee that the technical requirements for using the geodata supplied are met by the user.
15.3 The data provided or evaluated by the provider is based solely on the information available at the time of collection. The provider assumes no liability for any changes to the depicted or scanned objects after the data has been recorded or after aerial photographs have been taken.
15.4 The provider generally carries out all services to be provided with the greatest care and specialist knowledge. However, it cannot be ruled out that errors and deviations may occur during the measurement (e.g. due to vegetation, vibrations, rain or reflections). This applies in particular to data from the provider during further processing such as 2D plans, 3D models, BIM, GIS data sets or pass and control points. The sole responsibility for the accuracy of the data and coordinates provided lies solely with the client. The provider assumes no guarantee regarding completeness and accuracy.
16. DATA ARCHIVING
Your project data will be retained by the provider for 6 months from the time of invoicing and will be irrevocably deleted after this time. If a longer storage period is desired, this must be explicitly agreed between the contracting parties. At the request of the client, the provider will prepare an individual and non-binding offer.
17. LIABILITY
17.1 In the event of intent or gross negligence on the part of the provider or their representatives and vicarious agents, the provider is liable in accordance with the statutory provisions; The provider is also liable for culpable violation of essential contractual obligations. However, unless there is an intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring, verifiable damage.
17.2 Liability for culpable injury to life, body or health as well as liability under the Product Liability Act remain unaffected.
17.3 Liability for data loss is limited to the typical restoration effort that would have occurred if backup copies had been made regularly and appropriately.
17.4 If the services provided by the provider are based on data or information supplied by the client or third parties, the provider assumes no liability for the data created or any resulting errors in the results provided. This applies in particular to data provided by the provider for further processing such as 2D plans, 3D models, BIM, GIS data sets or pass and control points. The sole responsibility for the accuracy of the data and coordinates provided lies solely with the client.
17.5 The liability limitations according to the above paragraphs also apply mutatis mutandis to the personal liability of the provider's employees, employees, representatives and vicarious agents.
18. SEVERABILITY
Should individual provisions of these general terms and conditions be ineffective, the rest of the contract remains valid. Gaps in the contract must be filled by additional regulations that come close to the intended agreement and are effective.
19. APPLICABLE LAW, JURISDICTION
19.1 All contracts are subject exclusively to the law of the Federal Republic of Germany.
19.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the respective contractual relationship is the place of business of, to the extent permitted by law
permitted.