This Master Agreement (“Master Agreement”), entered into effective as of the date of the Initial Order Form (as defined below) by and between 3D Robotics, Inc. (“3DR”) and the customer identified in the Initial Order Form (“Customer”), sets forth the terms and conditions of Customer’s purchase, lease, license or access of or to, as applicable, certain Products or Services.
The parties agree as follows:
- Certain Definitions. The following capitalized terms have the following meanings:
“Affiliate” means, with respect to any person or entity, any other person or entity that, directly or indirectly, controls, is controlled by or is under common control with such first person or entity. For purposes of this definition, “control” (and, with correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct the management or policies of the applicable person or entity, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or otherwise.
“Application” means any hosted software application provided by 3DR.
“Authorized Reseller” means any Third Party authorized by 3DR to resell the Products and Services, solely to the extent that such Third Party is acting within the scope of such authorization.
“Customer Data” has the meaning given to such term in the Site Scan Agreement.
“Documentation” means any user instructions, release notes, manuals, or online help files related to any Software or Application.
“Hardware” means any drone or other data capture hardware products sold or leased by 3DR.
“Hardware Purchase Agreement” means the Hardware Purchase Agreement attached hereto as Exhibit C.
“Order Form” means any order form for Products or Services that (a) is executed by Customer and either 3DR or an Authorized Reseller and (b) references this Master Agreement.
“Products” means any Application, Documentation, Hardware or Software; provided, for clarity, that Products shall not include any Customer Data.
“Services” means any support or warranty
services provided by 3DR with respect to any Products.
“Site Scan Agreement” means the Site Scan Agreement attached hereto as Exhibit A.
“Software” means any software product (including Updates) licensed or otherwise provided by 3DR, but excluding any Application.
“Third Party” means any person or entity other than 3DR, Customer or any of their respective Affiliates.
“Updates” means successor versions, enhancements, fixes or updates to any software.
2. Order Forms.
- The parties have executed an initial Order Form (“Initial Order Form”) and may from time to time execute additional Order Forms.
- Each Order Form shall represent a binding obligation of 3DR (if applicable, through an Authorized Reseller) to sell, lease, license or provide (as applicable) to Customer, and of Customer to purchase, lease or license (as applicable) from 3DR (or, if applicable, the Authorized Reseller), the Products or Services specified in such Order Form, on the pricing and other terms specified in such Order Form, all subject to the terms and conditions of this Agreement. For clarity, pricing for all Products and Services shall be as specified in the applicable Order Form.
3. Ancillary Agreements.
- For any Order Form that includes a license or access to 3DR’s Site Scan™ software or application (a “Site Scan Order Form”), the terms and conditions of the Site Scan Agreement shall apply.
- To the extent applicable for any Site Scan Order Form, the terms and conditions of Exhibit B (Success Services) shall apply.
- For any Order Form that includes the purchase of Hardware, the terms and conditions of the Hardware Purchase Agreement shall apply.
- For any Order Form that includes the lease of Hardware (“Hardware Lease Order Form”), the terms and conditions of the Hardware Lease Agreement shall apply.
- Any Order Forms and any Exhibits hereto that apply in accordance with the foregoing provisions of this Section 3 (such Order Forms and Exhibits, collectively, the “Ancillary Agreements”) shall be deemed part of and incorporated by reference into this Master Agreement for all purposes hereunder. All references in this Master Agreement or any Ancillary Agreement to “this Agreement” (or any similar references such as “herein” or “hereunder”) shall be deemed to refer to this Master Agreement including all Ancillary Agreements. Capitalized terms used but not defined in any Ancillary Agreement shall have the meanings assigned to them in this Master Agreement.
4. Payments; Taxes.
- All payments by Customer hereunder shall be due on the date specified in the applicable Order Form (or, if no date is specified in such Order Form, upon receipt of the applicable invoice). All such payments shall be made in U.S. dollars by any form of payment acceptable to 3DR. Any amounts due from Customer hereunder that are not paid on or before the due date shall bear interest at the past-due rate specified in such Order Form (or, if no past-due rate is specified in such Order Form, the lower of (i) 10% per annum and (ii) the highest rate permitted under applicable law).
- Customer shall be responsible for any sales, value-added or other similar taxes arising under applicable law with respect to any payments made by Customer hereunder, other than taxes based on 3DR’s income.
- Notwithstanding the foregoing provisions of this Section 4, to the extent that Customer purchases, leases or licenses (as applicable) Products or Services from an Authorized Reseller, Customer’s payment obligations shall be as set forth in the Order Form or other applicable agreement between Customer and such Authorized Reseller.
5. Customer Obligations.
- In connection with its use of any Products or Services or any other activities under this Agreement, Customer shall comply with all applicable laws, rules and regulations of any governmental authority, including any applicable regulations of the Federal Aviation Administration or any similar regulatory agency in any jurisdiction other than the United States.
- Customer shall not:
- Use the Products or Services in any manner that could reasonably be expected to damage, disable, overburden or impair any 3DR server or network connected to any 3DR server or interfere with any Third Party’s use of any Products or Services or 3DR’s ability to provide any Products or Services to third parties;
- Attempt to gain any unauthorized access to any Products or Services or any materials or information with respect thereto;
- Disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code or algorithms for, or workaround any technical information in, any Products;
- Use any Products licensed, leased or made accessible to Customer hereunder in any manner that exceeds the scope of such license, lease or access rights or any applicable usage limit;
- Submit, upload or transmit in connection with the Products or Services any
content that contains documents, images, photographs, software, data, or other material protected by intellectual property law (or by rights of privacy or publicity or other similar personal or property rights) unless Customer has all necessary rights (by ownership or otherwise) to submit, upload or transmit such content in such manner and to grant 3DR any rights with respect to such content as provided for in this Agreement, in each case without violating any rights of any Third Party;
- Submit, upload or transmit in connection with the Products or Services any files that contain viruses, spyware, rootkits, Trojan horses, worms, malware, or other destructive features.
- Harvest or otherwise collect or attempt to collect any information about or belonging to any Third Party users of the Products or Services, including email addresses, usernames, or other data;
- Except as expressly permitted hereby, copy, distribute, perform, display or prepare derivative works based upon any Products;
- Publish any performance or benchmark tests or analysis related to any Products or Services; or
- Violate any license, terms of service or similar agreement with respect to any Third Party products or services used in connection with the Products or Services.
- Customer shall ensure that its employees and agents, including Authorized Users (as defined in the Site Scan Agreement), comply with any use, confidentiality or similar restrictions applicable to Customer under this Agreement.
- Restrictions. Neither party (the “receiving party”) shall disclose any Confidential Information of the other party (the “disclosing party”) to anyone other than employees and agents of the receiving party who (i) need to know such Confidential Information for the purpose of exercising the receiving party’s rights or performing the receiving party’s obligations under this Agreement and (ii) are bound to the receiving party by confidentiality obligations no less stringent than those set forth in this Agreement. The receiving party shall protect against unauthorized use or disclosure of the disclosing party’s Confidential Information using the same degree of protection that the receiving party uses to protect its own Confidential Information, but no less than a reasonable degree of protection. The receiving party shall not use the Confidential Information of the disclosing party except in connection with exercising the receiving party’s rights or performing the receiving party’s obligations under this Agreement or as otherwise permitted by the terms of this Agreement. Notwithstanding anything to the contrary contained herein, (x) the receiving party may disclose Confidential Information of the disclosing party upon prior written notice to the disclosing party to the extent required to
comply with an order of a court or other governmental authority with appropriate jurisdiction or as required to be disclosed under applicable law so long as, to the extent legally permissible, the receiving party provides the disclosing party with reasonable notice of such requirement and a reasonable opportunity to contest such requirement and
(y) the receiving party may use and disclose Confidential Information of the disclosing party to the extent authorized in writing by the disclosing party (and for purposes of this clause (y) the receiving party shall be entitled to rely on any written authorization of any employee or agent of the receiving party).
- Definition. “Confidential Information” of the disclosing party means any confidential or proprietary information or data disclosed by the disclosing party to the receiving party under or in connection with this Agreement; provided, however, that Confidential Information of the disclosing party shall not include any particular information which the receiving party can demonstrate (i) was, at the time of disclosure to it hereunder, in the public domain; (ii) after disclosure to it hereunder, is published or otherwise becomes part of the public domain through no fault of the receiving party; (iii) was rightfully in the possession of the receiving party at the time of disclosure to it hereunder without any obligation to restrict its further use or disclosure; (iv) was received from a Third Party who had a lawful right to disclose such information to the receiving party without any obligation to restrict its further use or disclosure; or (v) was independently developed by the receiving party without reference to Confidential Information of the disclosing party. For clarity, subject to the exclusions described in clauses (i) through (v) above, (x) the Products shall be considered to be the Confidential Information of 3DR and (y) the Customer Data shall be considered the Confidential Information of Customer.
7. Representations; Disclaimer.
- Representations. Each party hereby represents and warrants to the other party that:
- it (x) is duly formed and in good standing under the laws of the jurisdiction of its formation, (y) has the power, authority and legal right to enter into this Agreement and perform its obligations hereunder, and (z) has taken all necessary action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
- this Agreement has been duly executed and delivered on behalf of and constitutes a legal, valid and binding obligation of such party and is enforceable against such party in accordance with its terms, subject to the effects of bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity; and
- the execution, delivery and performance of this Agreement by such party does not and will not (x) conflict with any other agreement or understanding, oral or written, by which such party is or will be bound or (y) violate any applicable law.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, 3DR AND ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING OR OTHERWISE, INCLUDING ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR THAT ANY PRODUCTS, SERVICES OR INFORMATION PROVIDED IN CONNECTION THEREWITH WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE COMPLETE, ACCURATE, SAFE OR USEFUL UNDER ANY CONDITIONS OR FOR ANY PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 3DR SHALL NOT BE RESPONSIBLE TO CUSTOMER FOR THE PERFORMANCE OR NON-PERFORMANCE OF, OR ANY HARM CAUSED BY, ANY THIRD PARTY PRODUCTS OR SERVICES.
8. Indemnification; Insurance.
- Indemnification by 3DR. 3DR shall indemnify, defend and hold Customer, its Affiliates, and its and their officers, employees and agents (“Customer Indemnitees”) harmless from and against any and all liabilities, fines, losses, costs and expenses (including attorneys’ fees) (“Losses”) suffered by the Customer Indemnitees in connection with any Third Party claims arising from: (i) except as otherwise provided in this Agreement, any material breach of 3DR’s representations, warranties or obligations under this Agreement, (ii) any gross negligence or intentional misconduct of 3DR or its employees or agents, or (iii) any claim that the Products or Services (excluding any Third Party components of the Products or Services or any Third Party products or services used in connection with the Products or Services), or Customer’s use thereof for their intended purposes and in accordance with the terms of this Agreement, infringe or misappropriate any Third Party intellectual property rights; provided, however, that responsibility for any such Losses arising from any matter described in Section 8.b shall be allocated between the parties in proportion to the degree of fault attributable to each party.
- Indemnification by Customer. Customer shall indemnify, defend and hold 3DR, its Affiliates, and its and their officers, employees and agents (“3DR Indemnitees”) harmless from and against any and all Losses suffered by the 3DR Indemnitees in connection with any Third Party claims arising from: (i) any material breach of Customer’s representations, warranties or obligations under this Agreement, (ii) any gross negligence or intentional misconduct of Customer or its employees or agents, (iii) any use of the Products or Services, or any results or output thereof (including Customer Data), by or on behalf of Customer, or (iv) any claim that the Customer Data, or 3DR’s use thereof in accordance with the rights granted to 3DR under the Site Scan Agreement, infringe or misappropriate any Third Party intellectual property rights; provided, however, that responsibility for any such Losses arising from any matter described in Section 8.a shall be allocated between the parties in proportion to the degree of fault attributable to each party.
- Indemnification Procedure. Any indemnification claims under Section 8.a or 8.b in respect of a party or its affiliated persons or entities shall be asserted by such party
(“Indemnitee”) in accordance with this Section 8.c. Indemnitee shall provide the other party (“Indemnitor”) with prompt written notice of the Third Party claim giving rise to such indemnification claim and forward all related documents to Indemnitor. No failure to so notify Indemnitor shall relieve Indemnitor of its obligations hereunder except to the extent that Indemnitor can demonstrate damages or prejudice attributable to such failure. If Indemnitor acknowledges its indemnification obligation in writing, then Indemnitor shall defend the case at its own expense; provided, however, that Indemnitee reserves the right to be represented by counsel at its own expense at any proceeding or settlement discussions related thereto. Indemnitor may settle any claim subject to its indemnification obligations hereunder without Indemnitee’s written consent only if such settlement (i) includes a release of all covered claims pending against Indemnitee or its applicable affiliated person or entity; (ii) contains no admission of liability or wrongdoing by Indemnitee or its applicable affiliated person or entity; and (iii) does not impose any obligations upon Indemnitee or its applicable affiliated person or entity other than an obligation to stop using any infringing items.
- Actions in Response to Infringement. Without limiting any obligations of 3DR under Section 8.a, if 3DR determines that any Products or Services, or Customer’s use thereof for their intended purposes and in accordance with the terms of this Agreement, infringe or misappropriate any Third Party intellectual property rights, 3DR may, in its discretion and at no cost to Customer, (i) modify the applicable Products or Services so that they no longer infringe or misappropriate such Third Party intellectual property rights, (ii) obtain a license for Customer’s continued use of the applicable Products or Services, or (iii) terminate Customer’s lease, license, access or use rights with respect to the applicable Products or Services upon 30 days’ written notice to Customer and refund to Customer of a prorated portion of any fees paid by Customer with respect thereto.
- Insurance. During the term of this Agreement, each of 3DR and Customer shall maintain such type and amounts of liability insurance covering their respective activities under the Agreement as is normal and customary for a similarly situated business.
9. Limitations on Liability.
- Type of Damages. SUBJECT TO SECTION 9.c, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE DAMAGES, (II) LOSS OF PROFITS, REVENUE OR DATA, OR (III) DAMAGE TO REPUTATION OR GOOD WILL, IN EACH CASE HOWEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER OR NOT FORESEEABLE AND REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT.
- Amount of Damages. SUBJECT TO SECTION 9.c, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY CLAIMS UNDER OR IN CONNECTION WITH THIS AGREEMENT
SHALL EXCEED THE AMOUNTS PAID BY CUSTOMER FOR PRODUCTS OR SERVICES HEREUNDER IN THE 12 MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH CLAIMS.
- Exclusions. The limitations set forth in Sections 9.a and 9.b shall not apply to the following: (i) any gross negligence or intentional misconduct of a party or its employees or agents, (ii) a party’s knowing or reckless breach of any confidentiality obligations hereunder, (iii) Customer’s failure to pay any amounts owed pursuant to any Order Form, or (iv) a party’s indemnification obligations under Section 8, except that the limitation set forth in Section 9.b shall apply to 3DR’s indemnification obligations under clauses (i) and
(iii) of Section 8.a.
- Basis of Bargain. These limitations of liability shall apply notwithstanding any failure of essential purpose of any limited remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability, and that all such limitations form an essential basis of the bargain between the parties.
10. Term; Termination.
- Term. The term of this Agreement shall commence on the date of the Initial Order Form and, unless earlier terminated in accordance with Section 10.b, expire upon the expiration (without extension) of the Subscription Term (as defined in the Site Scan Agreement) (or, if there is no Site Scan Order Form, the first anniversary of the date of the Initial Order Form).
- Termination. Either party may terminate this Agreement if the other party is in material breach of this Agreement and the breaching party fails to cure such breach within 30 days after written notice of such breach from the non-breaching party; provided, however, that any breach by 3DR of the warranty set forth in Section 4 of the Site Scan Agreement, the warranty set forth in Section 3 of the Hardware Purchase Agreement or the warranty set forth in Section 6 of the Hardware Lease Agreement shall not provide a basis for Customer’s termination of this Agreement, unless 3DR materially breaches its obligation to provide the applicable remedy for such breach in accordance with the terms thereof.
- Survival. Sections 3.e, 4 (as to any amounts accrued prior to termination or expiration), 5 through 9, 10.c and 11 of this Master Agreement, and any provisions of any Ancillary Agreements that are expressly provided to survive, shall survive any termination or expiration of this Agreement. Any termination or expiration of this Agreement shall not affect any rights or obligations that may have accrued prior to such termination or expiration or any other rights or remedies that may be available to a party for any breach of this Agreement by the other party.
11. General Provisions.
- Force Majeure. Any delay in the performance of any duties or obligations of either party hereunder (except the payment of money owed) shall not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire,
earthquake, flood, or any other similar event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- No publicity; marketing. Neither party shall, without the prior written consent of the other party, use any logo(s), brands, trademarks, service marks, or names of the other party, its Affiliates, its suppliers or any of their respective shareholders on any website, in any public communications, marketing collateral or other materials (other than any materials that are used solely internally as necessary to exercise rights or perform obligations under this Agreement).
- Export Control. Without limiting Section 5.a, Customer shall not use, export, import, or transfer any Products or Services except as authorized by U.S. law, the laws of the jurisdiction in which Customer obtained such Products or Services, and any other applicable laws. In particular, but without limitation, Customer shall not export or re-export any Products or Services (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using any Products or Services, Customer represents and warrants that (x) Customer is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and (y) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also shall not use any Products or Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Customer acknowledges and agrees that Products and Services are subject to the export control laws and regulations of the United States, and Customer shall comply with these laws and regulations and shall not export, re-export, or transfer any 3DR products, services or technology, either directly or indirectly, to any country except in compliance with such laws and regulations.
- Compliance with Anti-Corruption Practices. Customer represents and warrants to 3DR that it and its Affiliates shall not, directly or indirectly, pay, promise to pay, or authorize the payment or giving of anything of value to any official or employee of any government except in exchange for legitimate services provided.
- Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter contemplated herein and supersedes all prior negotiations and oral agreements with respect thereto. In the event of any conflict between the provisions of this Master Agreement and the provisions of any Ancillary Agreement, (i) if such Ancillary Agreement expressly provides that the applicable provisions of such Ancillary Agreement shall control, then the applicable provisions of such Ancillary Agreement shall control, and (ii) if such Ancillary Agreement does not expressly provide that the applicable provisions of such Ancillary Agreement shall control, then the applicable provisions of this Master Agreement shall control.
- Amendments and Waivers. Subject to Section 3 regarding the application of Ancillary Agreements, this Agreement may not be amended except by a writing executed by the
parties; provided, however, that to the extent provided in any Order Form, this Agreement shall be amended and restated in its entirety, as of the date of such Order Form, to reflect the then-current version of 3DR’s standard master agreement as posted on 3DR’s website. No rights under this Agreement may be waived except in a writing signed by the waiving party. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Dispute Resolution. The parties shall attempt to resolve any dispute, claim or controversy arising out of or in connection with this Agreement (each, a “Dispute”) by good faith negotiation prior to commencing any arbitration procedures. If such good faith negotiation does not lead to a mutually agreed resolution, the Dispute shall be finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. The arbitration shall be held in San Francisco, California. Any submissions and hearings shall be conducted in English and any arbitration panel members shall be fluent in English. All proceedings and decisions of the tribunal shall be deemed Confidential Information of each party. The tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including injunctive relief, and any such measures ordered by the tribunal may, to the extent permitted by applicable law, be deemed a final award on the subject matter of the measures and enforceable as such. Either party may bring an action in court to compel arbitration under this provision or to enforce an arbitration award, but otherwise neither party shall bring any action in court with respect to any Dispute; provided, however, that either party may at any time seek provisional measures (such as a temporary restraining order or preliminary injunction) from any court of competent jurisdiction to prevent a breach of any applicable obligations.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted to be effective and valid under applicable law; but if any provision is found to be invalid, illegal, or unenforceable, then such provision or portion thereof shall be modified to the minimum extent necessary to render it legal, valid, and enforceable with an intent and economic effect as close as possible to the invalid, illegal, or unenforceable provision. If it is not possible to modify the provision to render it legal, valid, and enforceable, then the provision shall be severed from the rest of the Agreement and ignored. The invalidity, illegality, or unenforceability of any provision shall not affect the validity, legality, or enforceability of any other provision of this Agreement. Without limiting the generality of the foregoing, Customer agrees that Section 9 shall remain in effect notwithstanding the unenforceability of any warranty limitation hereunder.
- Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the express written consent of the other party; provided, however, that, without such consent, 3DR may (i) use its subcontractors to provide the Products and
Services (including Amazon Web Services (or another similarly reputable provider) for hosting services) and (ii) assign this Agreement and all of its rights and obligations hereunder to any Affiliate of 3DR or to any purchaser of 3DR or the business of 3DR to which this Agreement relates (whether by merger, asset purchase or otherwise). Any attempted assignment in violation of the preceding sentence shall be void. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of their successors and permitted assigns.
- Independent Contractors. The parties to this Agreement are independent contractors and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- Notices. Any notice required or permitted to be given under this Agreement by one party to the other must be in writing and shall be given and deemed to have been given: (i) immediately if delivered in person, (ii) on the third (3rd) business day following mailing if placed in the United States Mail, postage prepaid, by registered or certified mail with return receipt requested, (iii) the following business day if placed with a nationally recognized overnight delivery service, or (iv) upon confirmation of transmittal if sent by facsimile or e-mail, in each case addressed to the party at the party’s address set forth in the most recent Order Form. Each party may change its address for notice by giving written notice of the change to the other party in accordance with this paragraph.
- Remedies. Except as otherwise expressly set forth in the Agreement, the remedies set forth in this Agreement are cumulative. In the event of any breach or threatened breach by a party of any obligations with respect to confidentiality or any provisions of this Agreement related to intellectual property ownership or use restrictions, the other party shall be entitled to equitable relief in addition to any other remedies that it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
- Counterparts. An Order Form may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An Order Form may be executed by electronic signatures and such signatures shall be deemed to bind each party hereto as if they were original signatures.
- English Language. This Agreement shall be written and made in, and all other communications under or in connection herewith and therewith shall be in, the English language. Any translation into any other language shall not be an official version thereof, and in the event of any conflict in interpretation between the English version and such translation, the English version shall control.
- Interpretation. Except where the context otherwise requires, wherever used herein, the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word “or” is used in the inclusive sense (and/or). The captions of the Agreement are for convenience of reference only and in no way define, describe, extend or limit the scope or intent of the Agreement or the intent of any
provision contained in the Agreement. The
term “including” as used means including, without limiting the generality of
any description preceding or following such term. The language of the Agreement
shall be deemed to be the language mutually chosen by the parties and no rule
of strict construction shall be applied against either party.
Hardware Purchase Agreement
- Title; Delivery. Title and risk of loss to any Hardware purchased by Customer hereunder shall pass to Customer upon 3DR’s delivery of such Hardware to Customer. Unless otherwise provided in the applicable Order Form, such delivery shall be Ex Works (Incoterms 2010) 3DR’s facility, with all shipping costs (including shipping insurance) paid by Customer.
- Subject to the terms of any applicable Ancillary Agreement, with respect to any Hardware purchased by Customer hereunder, 3DR hereby grants to Customer a nonexclusive, non-transferable (except as contemplated by clause (ii) below), non-sublicenseable, perpetual, irrevocable, worldwide license to use any Software embedded in such Hardware, together with any Documentation for such Software, but excluding the Site Scan Properties (as defined in the Site Scan Agreement) (“Firmware”), to the extent required for Customer to use such Hardware for its intended purposes; provided, however that (i) Customer shall have no rights hereunder to copy, distribute, perform, display and prepare derivative works based upon the Firmware except as required for Customer to use such Hardware for its intended purposes, and (ii) Customer shall have no rights hereunder to sell or grant any license with respect to the Firmware to any Third Party (other than in connection with a sale of such Hardware, and in such case the license under this Section 2 shall be transferred to the purchaser, subject to the restrictions set forth herein).
- Solely if Customer purchases a license or access to 3DR’s Site Scan™ software or application, and solely during the Subscription Term (as defined in the Site Scan Agreement), 3DR shall provide Customer with any Updates to the Firmware that are generally made available to 3DR’s other Hardware customers, in the same form and at the same time as such Updates are generally made available to such other customers.
- Purchased Hardware Warranty. The terms and conditions of Annex 1 to this Hardware Purchase Agreement shall apply; provided, however, that 3DR shall not have any obligations under clause (i) of Section 8.a of the Master Agreement in connection with any Third Party claims arising from any breach of the warranty set forth such Annex.
Annex 1 to Hardware Purchase Agreement Purchased Hardware Warranty
Subject to the terms and conditions of this Annex 1 to the Hardware Purchase Agreement, (a) 3DR warrants to the original purchaser of any 3DR manufactured drone (the “Warranted Product”) that, at the time of purchase, the Warranted Product is free from material defects in materials and workmanship and
(b) if the Warranted Product fails during normal use and conditions due to a material defect in materials or workmanship within one year from the date of purchase, or such longer period as is required by applicable law, 3DR will repair or replace (at 3DR’s option) such defect(s), without any charge for parts or labor directly related to such defect(s).
This warranty extends only to customers who purchase the Warranted Product directly from 3DR or an Authorized Reseller and is not transferable or assignable. This warranty does not apply to Warranted Product subjected to abnormal use or conditions, accident (including without limitation, collision, crash or fire), alteration, or improper repair (other than by 3DR). For clarity, this warranty does not require 3DR to repair or replace any damage to any Warranted Product to the extent that such damage arises from any issue other than a material defect in materials or workmanship, including any damage arising from any of the following after the time of purchase: (1) exposure to moisture or extreme environmental conditions; (2) use of the Warranted Product with any accessory, software or other product not expressly authorized by 3DR; (3) external causes such as dirt, sand, battery leakage, blown fuse, or improper usage of any electrical source; or (4) use of the Warranted Product in violation of any applicable law, rule or regulation or the terms of this Agreement.
THE EXTENT OF 3DR’S LIABILITY UNDER THIS WARRANTY IS LIMITED TO THE REPAIR OR
REPLACEMENT PROVIDED ABOVE. 3DR shall comply with its
obligations under this warranty notwithstanding the provisions of Section 9 of
the Master Agreement.