Drone Enterprise License Agreement
This Drone Enterprise License Agreement (this “Agreement”) is between you and Drone.IO, Inc. (“Drone” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” or “Customer” means your entity and you are binding your entity to this Agreement. Drone may modify this Agreement from time to time, subject to the terms in Section 12 (Changes to this Agreement) below.
This Agreement is effective as of the Subscription Start Date of the first Order Form referencing this Agreement.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your order, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Software other than pursuant to a Public License, if available.
1 DEFINITIONS. Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
1.1 “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the ability to direct the management and policies of an entity.
1.2 “Beta Software” means versions of the Software that are labeled as “Alpha”, “Beta”, “Preview”, “Experimental”, “Preview,” “Evaluation,” or similar terms.
1.3 “Documentation” means the documentation related to the Software provided to Customer by Drone.
1.4 “Initial Subscription Term” means the term for the applicable Software starting on the subscription start date set forth on Customer’s first Order Form and continuing for the subscription term set forth in the Order Form.
1.5 “Intellectual Property Rights” mean all intellectual property rights, including, without limitation, patents, copyrights, trademarks, goodwill, moral rights, trade secrets, and any other intellectual and industrial property and proprietary rights including registrations, applications, renewals, and extensions of such rights worldwide.
1.6 “Order Form” means the ordering document or page for the Software.
1.7 “Software” means the latest version of the Software specified in the Order Form which is generally available as of the Subscription Start Date in the relevant Order Form or becomes generally available during the Term, any versions explicitly specified in the Order Form (if any), and all Updates of the foregoing.
1.8 “Subscription Start Date” means the subscription start date specified in the applicable Order Form.
1.9 “Subscription Term” means the term for the Initial Subscription Term or any renewal term for the Software.
1.10 “Update(s)” means any release of the Software that Drone makes available to Customer during the Term of this Agreement, including, without limitation, modifications, patches, workarounds, bug fixes, error corrections, minor modifications or enhancements, and any other major or minor releases, updates or upgrades, new versions, or successor products.
2 LICENSE GRANTS AND RESTRICTIONS.
2.1 License Grants. Subject to the terms of this Agreement and during the Subscription Term, Drone hereby grants a non-exclusive, non-transferable (except as provided in Section 11.3 (Assignment)), non-sublicensable, worldwide license to Customer and its Affiliates to (a) use and modify the Software and Documentation solely for its internal business operations; and (b) copy the Software and Documentation and any derivative works thereof as necessary to install and run the quantity of Software copies licensed solely for its internal business operations. Customer may permit contractors and Affiliates to use or operate the Software solely on Customer’s behalf provided that Customer is wholly responsible for any acts or omissions of its contractors or Affiliates that, if taken by Customer, would constitute a breach of this Agreement. Drone will deliver the Software and Documentation by making it available via electronic download on the Subscription Start Date. Drone will keep the Software free of malicious code, such as computer worms and viruses.
2.2 License Keys and Usage Limits. Drone will supply Customer with all necessary instructions and license keys required to access the Software and Documentation and Customer will keep such information in strict confidence in perpetuity. Use of the Software is subject to usage limits set forth in the Order Form, if any. The Software may (a) report data about license key validation and compliance with usage limits back to Drone (“Data”); and (b) limit or disable functionality on failure to validate license keys or if Customer exceeds the usage limits. Customer agrees that Drone may process Data to (i) monitor Customer’s compliance with this Agreement and improve the Software; and (ii) to create and distribute reports and materials about Drone’s products and services, provided that the Data is anonymized, aggregated, and de-identified. To the extent that this information constitutes personal data, Drone shall be the controller of such personal data. To the extent that it acts as a controller, each Party shall comply at all times with its obligations under applicable data protection legislation.
2.3 Modifications and Beta Software. Notwithstanding anything to the contrary in this Agreement, Drone has no warranty, indemnity or other obligation or liability with respect to (a) modifications made to the Software or Documentation by Customer or on Customer’s behalf other than Updates provided by Drone (“Customer’s Modifications”); or (b) Beta Software.
2.4 License Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to (and will not permit any third party to): (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software; (b) exceed the usage limits stated in the Order Form, if any; ( c) interfere with any license key mechanism in the Software or mechanisms in the Software intended to limit use; (d) distribute, transfer, grant sublicenses to, or otherwise make available the Software or any portion thereof to third parties, including, but not limited to, making Software available (i) through resellers or other distributors, or (ii) as an application service provider, service bureau, or rental source; (e) embed or incorporate in any manner the Software into any services or products; (f) use or transmit the Software in violation of any applicable law, rule or regulation, including any export/import laws; (g) in any way access, use, or copy any portion of the Software (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Software; or (h) remove, obscure or alter any copyright notices or any name, trademark, hyperlink or other designation of Drone displayed within the Software.
2.5 Future Functionality. Customer agrees payment is not conditional on delivery of future functionality or features, or dependent on any oral or written public comments made by Drone regarding future functionality or features. Customer may request new features, enhancements or other changes be implemented into the Software and Drone will review such requests, but is under no obligation to implement any such feature, enhancement or other change requested by Customer.
2.6 Dual Licensing. During the Term, Customer must abide by this Agreement with respect to the Software even if the Software is also made available to the public or to everyone who receives a copy under a separate license (“Public License”). Upon termination or expiration of this Agreement, any continued use of the Software will be subject to the Public License, if available.
3 OPEN SOURCE COMPONENTS AND THIRD-PARTY PRODUCTS.
3.1 Open Source Software. Use, reproduction and distribution of components licensed under an open source software license is governed by the terms of the applicable open source software license and not this Agreement. Drone will provide Customer with an accurate and complete listing of any applicable license terms for open source software embedded in the Software to enable Customer to abide by relevant terms provided therein.
3.2 Third Party Products. Customer may choose to use or procure other third-party products or services in connection with the Software, including plugins or implementation, customization, training or other services. Drone will not be responsible for any act or omission of the third party, including the third party’s access to or use of any Customer data or the performance of the Software in combination with such third-party product or service.
4 PROPRIETARY RIGHTS.
As between the Parties, Drone will retain all ownership rights in and to the Drone Software, Documentation, and all derivative works thereof, however made, and all Intellectual Property Rights incorporated into or related to the foregoing. All rights not expressly licensed by Drone under this Agreement are reserved. Customer hereby grants to Drone a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate any suggestions, enhancement requests, or other feedback related to the Software or Documentation that is provided by Customer or its contractors or Affiliates.
5 MUTUAL WARRANTIES.
Each Party hereby represents and warrants to the other that: (a) such Party has the right, power, and authority to enter into this Agreement and to fully perform all of its obligations hereunder; and (b) entering into this Agreement does not and will not violate any agreement or obligation existing between such Party and any third party.
6 WARRANTY DISCLAIMER.
THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY DRONE AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM STATUTE, OPERATION OF LAW, USAGE OF TRADE, ANY COURSE OF DEALING, OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. DRONE DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT IN ENTERING THIS AGREEMENT IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN. DRONE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
7.1 Drone Indemnity. Drone will indemnify, defend and hold Customer and its Affiliates, and each of their directors, officers, employees and agents, harmless from and against any loss, damage, cost, liability or expense (including reasonable attorneys’ fees)(collectively, “Claim(s)”) to the extent arising from a third-party claim that the Software or Documentation: (i) infringes a copyright, trademark, or patent or misappropriates a trade secret; or (ii) violates any law; and Drone will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such Claim or those costs and damages agreed to in a monetary settlement of such action.
7.2 Indemnity Exclusions. Notwithstanding the foregoing, Drone will have no obligation under this Section 7 or otherwise with respect to any Claim to the extent based upon the following: (a) third-party components (including in combination with the Software) not provided by Drone or any open source components included within the Software that have been identified by Drone to Customer; (b) modifications to the Software made to Customer’s specifications or otherwise made by any person other than Drone or a person acting at Drone’s direction; ( c) unauthorized use, use in violation of applicable law, or use of the Software other than in accordance with the Documentation; (d) Customer’s use of the Software after termination or expiration of this Agreement; (e) Customer’s use or distribution of any older Update of the Software when use or distribution of a newer Update would have avoided the infringement and Customer was advised of the foregoing; (f) Intellectual Property Rights owned or licensed by Customer; or (g) Customer settles a Claim or makes admissions with respect to a Claim without Drone’s prior written consent.
7.3 Mitigation. If the Software becomes, or in Drone’s opinion is likely to become, the subject of a Claim, Drone may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Software so that it becomes non-infringing and/or law-abiding and remains substantially functionally equivalent. If neither of the foregoing options is, in Drone’s reasonable opinion, commercially reasonable, Drone may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid fees.
7.4 Customer Indemnity. Customer will indemnify, defend and hold Drone and its Affiliates, and each of their officers, directors, employees and agents, harmless from and against any Claim to the extent arising from: (a) Customer’s use of the Software in violation of this Agreement or any applicable law or regulation; (b) Customer’s Modifications where such Claim would not have arisen but for Customer’s creation or use of Customer’s Modifications; and ( c) Customer’s use of third-party products or services.
7.5 Process. The foregoing indemnity obligations for both Parties are conditioned on the indemnified Party: (a) giving the indemnifying Party prompt written notice of any indemnified Claim; provided, however, that any delay in providing such written notice will not limit the indemnifying Party’s obligations except to the extent such delay results in any prejudice to the indemnifying Party; (b) cooperating fully with the indemnifying Party, at the indemnifying Party’s expense, in the defense or settlement of any indemnified Claim; and ( c) giving the indemnifying Party sole and complete control over the defense or settlement of any indemnified Claim; provided, however, that any settlement must include a complete release of the indemnified Party without requiring the indemnified Party to take any action other than to stop using the items that are the subject of the Claim. THIS SECTION 7 STATES DRONE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS (AS DEFINED ABOVE).
8 LIMITATIONS ON LIABILITY.
8.1 LIMITATIONS. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY (INCLUDING ITS AFFILIATES) BE LIABLE TO ANY PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOFTWARE, DOCUMENTATION, AND INTELLECTUAL PROPERTY RIGHTS PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOSS OF GOODWILL, LOST OPPORTUNITY, LOSS OF EARNINGS, LOST REVENUE, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO DRONE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, DRONE’S MAXIMUM AGGREGATE LIABILITY FOR BETA SOFTWARE WILL BE $100 USD. NEITHER PARTY’S THIRD-PARTY LICENSORS OR SUPPLIERS HAVE ANY LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
8.2 EXCLUSIONS TO LIMITATIONS. Nothing in this Agreement limits or excludes the liability of a Party (a) to the extent that it cannot be legally limited or excluded by law; (b) for death or personal injury; ( c) arising under Section 2 (License Grants and Restrictions) or Section 4 (Proprietary Rights); ( c) related to its obligations under Section 7 (Indemnification); or (d) for gross negligence, willful misconduct, fraud or fraudulent misrepresentation.
9 TERM, TERMINATION AND EFFECT.
9.1 Term. The term of this Agreement will begin as of the Subscription Start Date and continue until the earlier of (a) the last Subscription Term has expired; or (b) until this Agreement is terminated (“Term”). Unless otherwise set forth in an Order Form, subscriptions will automatically renew for durations equivalent to the Initial Subscription Term, unless either Party gives the other notice of non-renewal at least 30 days before the end of the Subscription Term. Drone may revise fees for the Software by providing Customer with 45 days’ notice prior to any renewal.
9.2 Termination. This Agreement may be terminated by either Party if (a) the other Party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching Party; or (b) if at any time the other Party: (i) ceases operation without a successor; or (ii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within 60 days thereafter).
9.3 Effect of Termination. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the Parties may have, (a) all rights licensed and obligations required hereunder will immediately cease, provided that Sections 1, the confidentiality obligations in Section 2.2, Section 4-11, and any other provision of this Agreement that must survive termination to fulfill its essential purpose will survive termination; (b) Customer will promptly delete or destroy all license keys, and upon request by Drone will certify in writing such destruction; ( c) if Customer terminated pursuant to Section 9.2, Drone will refund to Customer any pre-paid fees for use of the Software for the terminated portion of the applicable Subscription Term; and (d) unless Customer terminated pursuant to Section 9.2, if Customer has not already paid all applicable fees for the Subscription Term, any such fees that are outstanding will become immediately due and payable.
10 FEES AND PAYMENT.
Fees. Customer will pay Done the fees for the Software set forth in the Order Form, invoice, or Drone billing webpage, as applicable. If the Order Form specifies flexible pricing for increased usage limits, Customer may increase its usage limits within that pricing at any time. Changes to usage limits take effect as soon as Customer pays the additional fees. Customer is responsible for providing complete and accurate billing and contact information to Drone and updating Drone of any changes. Unless explicitly stated otherwise in this Agreement, all fees are non-refundable, non-cancelable and non-creditable.
10.1 Payment. Unless otherwise set forth in the Order Form, invoice, or Drone billing webpage, all fees will be invoiced in advance and are due and payable according to the payment terms in the Order Form, if specified, or within 30 days from invoice send date. If Customer provides Drone with credit card information for payment, Customer acknowledges that an invoice may not be sent, and Customer authorizes Drone to charge the credit card for the Software listed in the Order Form or Drone billing webpage for the Subscription Term. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void. All amounts payable will be non-refundable and in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use, excise, customs duties, tariffs and other taxes, (other than taxes based on Drone’s income) which if applicable will be paid by Customer. Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Drone in collecting past due amounts.
11.1 Independent Contractors. The Parties are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the Parties.
11.2 Force Majeure. Each Party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
11.3 Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent, not to be unreasonably withheld; except, however, either Party may assign this Agreement in its entirety, without the other Party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this Section, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Any other attempt to transfer or assign is null and void.
11.4 Governing Law. This Agreement may only be enforced by Drone and Customer; there are no third-party beneficiaries to this Agreement. This Agreement will be governed by the laws of the State of California, without regard to California conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement will be the state or federal courts located in San Francisco County, California. Each Party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on Contracts for the International Sale of Goods will apply to the interpretation or enforcement of this Agreement. The prevailing Party in any claim or dispute between the Parties under this Agreement will be entitled to reimbursement of its reasonable attorneys’ fees and costs.
11.5 Government Procurement. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
11.6 Waiver. Except as otherwise set forth in this Agreement, all modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the Parties hereto and expressly references this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
11.7 Entire Agreement. This Agreement includes any applicable Exhibits, Order Forms, and any Documentation. Collectively, the foregoing constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, purchase orders, any quotations or proposals submitted by Drone. In event of any conflict between the main body of this Agreement and an Order Form, the Order Form will control. This Agreement may be executed in counterparts, each of which will be deemed to be an original. The Parties took an equal share in drafting this Agreement; therefore, no rule of contract construction that would operate to construe this Agreement or any part thereof strictly against the drafter shall be applied in any action or proceeding relating hereto. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only.
11.8 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the address or email listed on the Order Form (or other address that a Party may give notice of to the other Party pursuant to this Section).
11.9 Export Compliance. Each Party shall comply with all laws applicable to the actions contemplated by this Agreement. Customer acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. Customer represents that (a) Customer is not, and is not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (b) Customer will not permit the Software to be used for any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
11.10 Records. Customer will keep and maintain complete and accurate records to verify that Software is used in accordance with the scope of the license in this Agreement, including any usage limits (“Compliance”), during the Term and for a period of one year following the year in which Software was used by Customer. Drone may, from time to time, and no more frequently than once every six months during the Term and once within six months of this Agreement’s termination or expiration, request that Customer provide all relevant records necessary to ascertain Compliance and Customer will provide such records within five business days or as may be agreed by the Parties in writing. If Drone determines that there has been a lack of Compliance, Drone may invoice Customer and Customer will promptly pay Drone for the underpaid fees.
12 CHANGES TO THE AGREEMENT.
12.1 Modifications Generally. Drone may modify the terms and conditions of this Agreement from time to time. Together with notice, Drone will specify the effective date of the modifications.
12.2 Beta Software. Customer must accept the modifications to continue using the Beta Software. If Customer objects to the modifications, Customer’s exclusive remedy is to cease using the Beta Software.
12.3 Licensed Software. Typically, when Drone makes modifications to the main body of this Agreement, the modifications will take effect at the next renewal of the Subscription Term and will automatically apply as of the renewal date unless Customer elects not to renew pursuant to Section 9.1 (Subscription Term). In some cases, such as when it is necessary to address compliance with applicable or new features, Drone may specify that such modifications become effective during the Subscription Term. If the effective date of such modifications is during the Subscription Term and Customers objects to the modifications, then (as its exclusive remedy) Customer may terminate affected Order Forms upon notice to Drone, and Drone will refund to Customer any pre-paid fees for use of the affected Software for the terminated portion of the applicable Subscription Term. To exercise this right, Customer must provide Drone with notice of objection and termination within 30 days of Drone providing notice of the modifications.