Agreement for Site Scan™ Software as a Service
This Agreement for Site Scan Software as a Service (“Agreement”) is between you, the customer, (“you” or “customer”) and 3D Robotics, Inc. (“3DR”).
1. License; Restrictions; Obligations.
1.1 Application License. Subject to the terms and conditions of this Agreement, 3DR hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license for a single user (an “Authorized User”) to download and use one copy of the Application on a single mobile device or computer that Customer owns or controls and to run such copy of the Application solely for Customer’s own internal business purposes. 3DR shall provide the Authorized User with a unique password to enable Customer to activate the Site Scan mobile application for use on a single drone.
1.2 Software. Use of, or access to, any software and associated documentation, other than the Application (including any 3rd party software and document), that is made available via the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software or that is provided to Customer at the time Customer registers with 3rd party software provider(s). Customer agrees that 3DR and any 3rd party software providers retain the right to create reasonable limits on the use of Services, such as limits on file size, storage space, processing capability, and similar limits and as otherwise determined by 3DR in its sole discretion. Customer shall not use, download or install any Software that is accompanied by or includes a license agreement unless Customer agrees to the terms of such license agreement. At no time will 3DR provide Customer with any tangible copy of the Software. 3DR shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software. If no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement. Subject to Customer’s compliance with this Agreement, 3DR grants Customer a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software in the manner permitted by this Agreement. Some Software may be offered under an open source license that 3DR will make available to Customer. There may be provisions in the open source license that expressly override some of the terms in this Agreement.
1.3 Updates. Customer understands that the Application, the Software and the Services (the “3DR Properties”) are evolving. As a result, 3DR may require Customer to accept updates to the 3DR Properties that Customer has installed on its Drone or mobile device. Customer acknowledges and agrees that 3DR may update 3DR Properties with or without notifying Customer. Customer may need to update third-party software from time to time in order to use the 3DR Properties.
1.4 Certain Restrictions. Except as permitted in this Agreement, the rights granted to Customer in this Agreement are subject to the following restrictions:
(a) Customer shall not cause the 3DR Properties in any way to be disassembled, decompiled, reverse engineered, or otherwise attempt to derive the source code or algorithms in the 3DR Properties, except to the extent permitted by applicable law (and provided that Customer must first request such information from 3DR and 3DR may either provide such information or impose reasonable conditions, including a fee, on such use to ensure that 3DR’s intellectual property rights are protected), or workaround any technical information in the Services, nor shall any attempt to do any of the foregoing be undertaken or permitted;
(b) Customer shall not make the Application available for access or use by any person other than an Authorized User and shall not make the 3DR Properties available for access or use by any person or entity other than Customer’s employees;
(c) Customer shall not rent, lease, loan or sell access to the 3DR Properties to any third party or provide it as a service bureau, without express written permission of 3DR;
(d) Customer shall not interfere with or disrupt the Services;
(e) Customer shall not copy or otherwise reproduce, translate, port, modify or make derivative works of the 3DR Properties; and
(f) Customer shall not publish any performance or benchmark tests or analysis related to the 3DR Properties.
1.5 Third Party Materials. As a part of the Services, Customer may have access materials that are hosted by another party. Customer agrees that it is not possible for 3DR to monitor such materials and that Customer’s access to these materials is at Customer’s
2. Storage of Data.
3DR will capture Raw Data from the Customer’s Drone and will store the Raw Data transmitted to the 3DR cloud during the Subscription Term (as defined in Section 7.1). 3DR may also store Enhanced Data received from 3rd parties during the Subscription Term. Notwithstanding the foregoing, 3DR has no responsibility or liability for the deletion of any Data; the failure to store, transmit or receive transmission of Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the 3DR Properties. Customer agrees that 3DR retains the right to create reasonable limits on the use and storage of Data, such as limits on file size, storage space, processing capability, and similar limits described in the web pages accompanying the Services and as otherwise determined by 3DR in its sole discretion.
3.1 3DR Properties. Customer agrees that 3DR and its suppliers, (“Suppliers”) own all rights, title and interest in the 3DR Properties. Customer will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the 3DR Properties.
3.2 Trademarks. 3DR’s name and other related graphics, logos, service marks and trade names used on or in connection with the 3DR Properties are the trademarks of 3DR and may not be used without permission in connection with any third-party product or services. Other trademarks, service marks and trade names that may appear on or in the 3DR Properties are the property of their respective owners.
3.3 Other Content. Except as provided herein, Customer agrees that Customer has no right or title in or to any content that appears on or in the 3DR Properties.
3.4 Customer Ownership of Data. The 3DR Services include access to the Application, which can be used to plan each mission performed by the Solo Drone and to process Raw Data recorded by the Drone. Customer retains copyright and any other proprietary rights that Customer may hold in the Raw Data that Customer stores and processes using the 3DR Services.
3.5 License to Data. Customer hereby grants 3DR the nonexclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use, copy, reproduce, modify and display Raw Data for the purposes of evaluating and improving the performance, reliability and capabilities of the 3DR Properties and products. Customer hereby grants 3DR the nonexclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use, copy, reproduce, modify and display Enhanced Data in an aggregated manner for the purposes of evaluating and improving the performance, reliability and capabilities of the 3DR Properties and products.
4. Fees and Purchase Terms.
4.1 Subscription Fee. In consideration for the access rights granted to Customer and the Services provided pursuant to this Agreement, Customer agrees to pay 3DR all applicable fees (Fees). In the event that Customer wishes to download additional copies of the Application for one or more additional Authorized Users, Customer shall be required to pay additional fees. All fees for the Services are due and payable to 3DR in advance.
4.2 Taxes. The fees are exclusive of any applicable Sales Tax. If any Software or Services, or payments for any Software or Services, are subject to Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to 3DR, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify 3DR for any liability or expense it incurs in connection with such Sales Taxes. Upon 3DR’s request, Customer will provide 3DR with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes. For purposes of this Section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that 3DR is permitted to pass to its customers that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.1 Limited Warranty. 3DR warrants to Customer that the Application will operate free from Errors during the Subscription Term. Provided that Customer notifies 3DR in writing of any breach of the foregoing warranty during the term hereof, 3DR shall, as Customer’s sole and exclusive remedy, provide the support set forth in Exhibit C (Support) to this Agreement. For purposes of this Agreement, “Error” shall mean a reproducible failure of the Application to substantially conform to any user materials provided by 3DR to Customer describing the use and operation of the Application.
5.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 5.1 OR IN ANY SOFTWARE LICENSE AGREEMENT, 3DR AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING OR OTHERWISE. 3DR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON- INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 3DR DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND 3DR GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM.
6. Limitation of Liability.
6.1 Type of Damages. Neither Party shall be liable to the other Party for any indirect, special, consequential, reliance, or punitive damages, or for any loss of profits, data, revenue, or for damage to reputation or good will, however arising under this Agreement or in connection with the 3DR Properties, whether under contract, tort or otherwise, regardless of whether foreseeable or not and regardless of whether such Party has been advised of the possibility that such damages may arise, occur or result.
6.2 Amount of Damages. In no case shall 3DR’s aggregate cumulative liability to Customer for any claim exceed the amounts paid by Customer to 3DR pursuant to this Agreement in the previous 12 months. The existence of one or more claims under this Agreement will not increase 3DR’s liability.
6.3 Basis of Bargain. These limitations of liability will 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.
7. Term and Termination.
7.1 Term. The Term of this Agreement commences on the Effective Date and continues until the one-year anniversary date of the Effective Date (“Subscription Term”), unless terminated earlier in accordance with this Agreement.
7.2 Termination of Services for Cause. If either party materially breaches any provision of the Agreement, the non-breaching party has the right to terminate the Agreement if the breaching party has not cured the breach within thirty (30) days after notice thereof.
7.3 Effect of Termination. Termination of the Agreement includes removal of access to the Services and barring of further use of the Services, including the Application and any Software. Upon expiration or termination of the Agreement, 3DR will provide Customer with thirty (30) days to download any Customer Data stored within the Services. Following such thirty (3) day period, 3DR may, at its option, delete Customer Data or deny Customer access to Customer Data. All provisions of the Agreement which by their nature should survive, shall survive termination of the Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
8.1 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will 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 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.
8.2 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which 3DR’s principal place of business is located for any lawsuit filed there against Customer by 3DR arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from California law. Customer shall always comply with all international and domestic laws, ordinances, regulations and statutes that are applicable to its purchase and use of the 3DR Properties hereunder.
8.3 Notice. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party: if to Customer- by email to the email address provided at the time of registration. If to 3DR, by email to Notice@3dr.com or by mail. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
8.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8.5 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that Section 6 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 5.1 (Limited Warranty).
8.6 Export Control. Customer may not use, export, import, or transfer 3DR Properties except as authorized by U.S. law, the laws of the jurisdiction in which Customer obtained 3DR Properties, and any other applicable laws. In particular, but without limitation, 3DR Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) 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 3DR Properties, Customer represents and warrants that (i) 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 (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use 3DR Properties 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, services or technology provided by 3DR are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer 3DR products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
8.7 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the 3DR, or published by 3DR.
a. The Services will be made available to Customer within 14 days after the Effective Date via an email notification.
b. Authorized User means the purchased users for which Customer has paid the required Fees for each Drone and associated Site Scan subscription seat. Seats are specific to a single Drone and may not be used with additional Drones. 3DR may audit applicable records in order to verify Customer’s compliance with the Authorized User parameters.
c. To ensure reliable and consistent operation, Customer must maintain the Supported Environment as described in the documentation to use the Services,