1. Background. These software and support terms and conditions (the "Agreement") govern the license of Software by Drone.io to Customer.
2.1. "Confidential Information" has the definition set forth in Section 9.1.
2.2. "Documentation" means any user instructions, manuals or other materials, and online help files regarding the use of the Software that are generally provided by Drone.io in connection with the Software.
2.3. "Effective Date" means the effective date specified in the Order.
2.4. "Feedback" means suggestions, enhancements, feature requests or other feedback provided by Customer or Users to Drone.io with respect to the Software.
2.5. "Maintenance and Support" means the services described in Section 6.1.
2.6. "Order" means the order completed by Customer [on Drone.io's web site] setting forth the Software to be provided to Customer by Drone.io.
2.7. "Software" means the computer software programs specified in the Order, along with all Updates thereof released by Drone.io during the term of this Agreement.
2.8. "Update" means a release or version of the Software containing functional enhancements, extensions, error corrections or fixes that is generally made available free of charge to Drone.io's customers.
2.9. "Users" means all end users of the Software licensed to Customer under this Agreement.
3. Grant of License
3.1. Grant. Drone.io hereby grants to Customer, subject to the limitations set forth in this Section 3 and in Section 4, a nonexclusive and nontransferable license to (a) use the Software for its own internal information processing services and computing needs, and to make sufficient copies as necessary for such use, and (b) use the Documentation in connection with use of the Software. Drone.io hereby reserves all right, title and interest in and to the Software, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.
3.2. Delivery. Drone.io shall deliver to Customer one machine-readable copy of the Software along with one copy of the Documentation. Drone.io shall provide Customer with additional copies of the Documentation at Drone.io's then-current charges. If any additional proprietary features are to be included with the Software, Drone.io will provide an access key to enable access to such features. Except as set forth in Section 4.4, Customer acknowledges that no copy of the source code of the Software will be provided to Customer.
3.3. Copies. Customer may make a reasonable number of electronic copies of the Software and Documentation for backup or disaster recovery purposes. All copies of the Software or Documentation will be subject to the terms and conditions of this Agreement. Whenever Customer is permitted to copy or reproduce all or any part of the Software or Documentation, Customer shall use reasonable efforts to reproduce and not efface any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings thereon.
4. License Restrictions
4.1. Types of Licenses. Customer shall abide by the following applicable restrictions based on the product indicated on the Order.
4.1.1. Evaluation License. If an "Evaluation License" is indicated on the Order, Customer's copy of the Software may contain a blocking code restricting use of the Software after the time indicated on the Order. Customer may use the Software solely for internal use, solely during the evaluation duration period indicated on the Order. All Feedback will be given by Customer entirely voluntarily. Customer grants and agrees to grant to Drone.io a royalty-free, transferable, irrevocable, worldwide, fully paid-up license under Customer's intellectual property rights to use, disclose, reproduce, license (with rights to sublicense through multiple tiers of sublicensees), sell, offer for sale, distribute, import and otherwise exploit Feedback without restriction or obligation of any kind or nature. Notwithstanding anything to the contrary in this Agreement, all Software subject to such evaluation license is delivered "AS-IS," without any express or implied warranties, and no warranties or maintenance obligations will apply to Drone.io. DRONE.IO HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO SUCH SOFTWARE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH SOFTWARE.
4.1.2. Enterprise License. If an "Enterprise License" is indicated on the Order, Customer may use the Software solely for its own computing needs, and not on behalf of any other entity or affiliate.
4.1.3. Per-User License. If a number of Users is indicated on the Order, Drone.io will provide Customer access to the Software solely for Users authorized by Customer. Customer shall not allow access to the Software by more than the number of Users indicated on the Order. Customer shall not allow access to the Software by any User other than Customer's authorized Users.
4.1.4. Repository and Remote Agent License. If the Order indicates numbers of repositories or remote agents, Customer shall not allow Users to access or use more than number of repositories or remote agents indicated on the Order.
4.1.5. Responsibility for Users. Customer will be responsible for its Users' compliance with this Agreement. User accounts and passwords are specific to individual Users, and may not be shared among or by other Users. Customer administrators may reassign a User account during the subscription term, if a former User no longer requires access to or use of the Software. All Users must be (a) employees of Customer, or (b) agree in writing to abide by the terms of this Agreement.
4.2. Additional Restrictions. Customer shall not itself, or via any third party: 4.2.1. sell, lease, license or sublicense the Software or the Documentation or provide access to the Software or Documentation to any third party or for "service bureau" use;
4.2.2. decompile, disassemble, or reverse engineer the Software, in whole or in part; or
4.2.3. attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Software.
4.3. Community Edition. Some or all of the Software is also available from Drone.io under the Apache 2 license on Drone.io's website at: https://github.com/drone/drone/blob/master/LICENSE. Nothing in this Agreement will restrict any rights Customer may have under such license.
4.4. Business Discontinuation License. In the event that Drone.io winds up, liquidates or discontinues its business, it will, at its option, (a) release any proprietary Software features under an open source license, or (b) if the Software was licensed pursuant to a subscription term that is still in effect, grant Customer a perpetual license to the Software and provide Customer with a copy of the Software source code. In the event of (b), Drone.io hereby grants to Customer a perpetual, non-exclusive license to use, reproduce, and prepare derivative works of the Software and Documentation (including the Software source code and source code materials) for its own internal informational processing services and computing needs.
5. License Fee
5.1. Payment of Fees. Customer shall pay Drone.io the license fee specified in the Order. Unless otherwise indicated therein, the license fee is due and payable in full upon the Effective Date or renewal date for any subsequent license term. Maintenance and Support fees are included in the license fee specified in the Order.
5.2. Additional Licenses. Customer will have the option to expand the license granted pursuant to Section 3.1 to increase the licensed number of Users, or otherwise change the scope of the license, upon Drone.io's receipt of additional license fees for such expanded scope at the prices set forth on the Order.
5.3. Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Drone.io for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the income of Drone.io). Drone.io shall pay to the applicable taxing authorities any such amounts invoiced to Customer.
6. Maintenance and Support
6.1. Maintenance and Support Provided. During the term of this Agreement, Drone.io will provide the "Maintenance and Support" services and comply with the "Service Levels" set forth in the Maintenance and Support Policy located at https://drone.io/enterprise/support .
6.2. Eligibility of Software. Maintenance and Support will not include services requested as a result of, or with respect to, the following:
6.2.1. accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of rotation media not furnished by Drone.io; operation of the Software with other media not meeting or not maintained in accordance with the manufacturer's specifications; or causes other than ordinary use;
6.2.2. improper installation by Customer or use of the Software that deviates from any operating procedures established by Drone.io in the applicable Documentation;
6.2.3. modification, alteration or addition or attempted modification, alteration or addition of the Software undertaken by persons other than Drone.io or Drone.io's authorized representatives; or
6.2.4. Customer's use of software or technology of any party other than Drone.io that is not approved by Drone.io in connection with the Software.
6.3. Customer's Obligations.
6.3.1. Customer shall provide Drone.io with access to Customer's personnel during normal business hours to assist with Maintenance and Support.
6.3.2. Customer shall use reasonable efforts to provide supervision, control and management of the use of the Software.
6.3.3. Customer shall document and promptly report all errors or malfunctions of the Software to Drone.io. Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Drone.io.
6.3.4. Customer shall use reasonable efforts to maintain a current backup copy of all programs and data. Drone.io will not be responsible for loss of data.
6.3.5. Customer shall properly train its personnel in the use and application of the Software.
6.3.6. Customer shall use reasonable efforts to implement procedures for the protection of information and the implementation of backup facilities in the event of errors or malfunction of the Software.
6.4. Other Support Requests. Customer may request that new features, enhancements or other changes be implemented into the Software. Drone.io will review and address such requests pursuant to the Service Levels, but is under no obligation to implement any such feature, enhancement or other change requested by Customer.
7. Warranty Disclaimer and Limitation of Liability
7.1. Disclaimer. Customer's sole remedy for any error or defect in the Software is Drone.io's Maintenance and Support obligations under Section 6. Drone.io makes no warranties, whether express, implied, or statutory regarding or relating to the Software or the Documentation, any materials or services furnished or provided to Customer under this Agreement, including Maintenance and Support, or any third party software (such as add-ons or plugins). DRONE.IO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
7.2. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, THIRD PARTY SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING OUT OF SECTION 8, EACH PARTY'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEE PAID BY CUSTOMER TO DRONE.IO UNDER THIS AGREEMENT. The provisions of this Section 7 allocate risks under this Agreement between Customer and Drone.io. Drone.io's pricing of the Software reflects this allocation of risks and limitation of liability.
8.1. Indemnification by Drone.io. Drone.io shall, at its expense, defend, indemnify and hold harmless Customer and its affiliates, directors, agents, and users against any claim, action or allegation brought against Customer that the Software infringes any intellectual property right of any third party and shall pay any damages or judgments awarded or settlements entered into. Customer shall give prompt written notice to Drone.io of any such claim, action or allegation of infringement and give Drone.io the authority to proceed as contemplated herein. Drone.io will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of Drone.io. Customer shall give such assistance and information as Drone.io may reasonably require to settle or oppose such claims. Customer may participate in such defense with counsel of its own choice, at its own expense.
8.2. Indemnification by Customer. Subject to Drone.io's obligations under Section 8.1, Customer shall, at its expense, defend, indemnify and hold harmless Drone.io and its affiliates, directors, agents, and users, against any third party claim, action or demand brought against Drone.io or Drone.io's affiliates, directors, agents, and users arising from: (a) Customer's breach or violation of its responsibilities under Sections 4 or 5, or (b) claims that Customer's or its affiliates', directors', agents', or Users' use of the Software or services in violation of this Agreement infringes or violates the rights of such third party. Customer shall pay all damages, if any, finally awarded against Drone.io indemnified parties or agreed upon in settlement by Customer, including reasonable attorneys' fees and out-of-pocket costs incurred by Drone.io.
8.3. Options. In the event any third party claim contemplated by Section 8.1 is brought against Customer, Drone.io may immediately, at its sole option and expense:
8.3.1. procure for Customer the right to continue use of the Software or infringing part thereof;
8.3.2. modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or
8.3.3. if neither of the foregoing is commercially practicable, terminate this Agreement and the Order and repay to Customer all amounts paid by Customer hereunder.
8.4. Exclusions. Drone.io's obligations under this Section 8 will not apply to the extent any claim or allegation of infringement arises as a result of modifications to the Software made by any party other than Drone.io or Drone.io's authorized representative.
8.5. Limitation. This Section 8 states the entire liability of Drone.io with respect to infringement of any patent, copyright, trade secret or other proprietary right.
9. Confidential Information
9.1. Definition. "Confidential Information" means all Software listings, Documentation, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the Software, and any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects that is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party, (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party, (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure, (d) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality, (e) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession, or (f) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
9.2. Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees of the receiving party with a need to know.
9.3. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
9.4. Return of Materials. Upon the termination of this Agreement, each party shall deliver to the other party all of such other party's Confidential Information that such party may have in its possession or control.
10. Term and Termination
10.1. Term. This Agreement will take effect on the Effective Date and will remain in force until terminated in accordance with this Agreement. Unless otherwise indicated on the Order, the duration of a subscription term will automatically renew for subscription terms of equal duration until this Agreement is terminated pursuant to this Section 10.
10.2. Termination by Customer. This Agreement may be terminated by Customer upon the expiration of any subscription term, provided that Customer provides written notice to Drone.io 30 days prior to the expiration of such term. If the Software is not provided under a subscription, Customer may terminate this Agreement by providing 30 days prior written notice to Drone.io.
10.3. Termination Events. Drone.io may, by written notice to Customer, terminate this Agreement if any of the following events ("Termination Events") occur:
10.3.1. Customer fails to pay any amount due Drone.io within 30 days after Drone.io gives Customer written notice of such nonpayment;
10.3.2. Customer is in material breach of any non-monetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within 30 days after Drone.io gives Customer written notice of such breach;
10.3.3. Customer (a) terminates or suspends its business, (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (c) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes;
10.3.4. Drone.io elects to refund Customer's fees in accordance with Section 8.3.3; or
10.3.5. Drone.io elects not to renew any subscription term by providing written notice to Customer no less than six months prior to the end of the then-current subscription term.
10.4. Survival. If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Customer's or Drone.io's treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming Drone.io's liability, which provisions will survive termination of this Agreement.
10.5. Effect of Termination. No later than 30 days after the date of termination of this Agreement, Customer shall return the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form. Customer shall furnish Drone.io with a certificate signed by an executive officer of Customer verifying that the same has been done. In no event will any termination relieve Customer of the obligation to pay any fees payable to Drone.io for any period prior to the effective date of termination, unless otherwise stated in this Agreement.
11.1. Publicity Rights. Customer hereby grants to Drone.io a non-exclusive, revocable license to use Customer's trademarks in connection with Drone.io's promotional materials for identification purposes only. Customer may terminate this license by submitting an email to firstname.lastname@example.org at any time, which termination request will be processed within 30 days after receipt by Drone.io.
11.2. Nonassignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Drone.io, which consent will not be unreasonably withheld. Drone.io may assign this Agreement upon written notice to Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
11.3. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be delivered in person or sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
11.4. Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
11.5. Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.6. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.7. Integration. This Agreement and the Order contain the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement and the Order may not be amended, except by a writing signed by both parties.
11.8. Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties thereunder, or otherwise modify, this Agreement, regardless of any failure of Drone.io to object to such terms, provisions or conditions.
11.9. Export. Customer may not export or reexport the Software without the prior written consent of Drone.io and without the appropriate United States and foreign government licenses.
11.10. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
11.11. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in City and County of San Francisco, California for resolution of any disputes arising out of this Agreement.