Developer and App Market Agreement

This Developer and App Market Agreement (this “Agreement”), is made effective as of today’s date of submission (the “Effective Date”) by and between DroneDeploy, Inc. (“Company”), and the submitter of the applicable App (defined below) on the App Marketplace (defined below) (“Partner”).

WHEREAS, Company offers a cloud-based, software-as-a-service platform for the acquisition, processing, storing, sharing, and analysis of data; and

WHEREAS, Partner offers complementary products or services that are suitable for integration with the Company App; and

WHEREAS, Company and Partner desire to partner to integrate Partner’s software, data, products or services with the Company App and market and sell them to Customers of both Partner and Company;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties agree as follows:

1. Definitions

   As used herein, the following terms shall have the meanings set forth below:

   1. “Agreement” means this Company Developer and App Market Agreement , together with cover pages, all schedules, attachments, and exhibits hereto.
   2. “Partner” means the entity identified as Partner.
   3. “Partner Offering” means Partner’s software, data, products or services that Partner connects to the Company App under this Agreement.
   4. “App” means any software or interface that implements all or part of a connection on or between the Company App and the Partner Offering.
   5. “App Market” means the integrated Company digital distribution and sales platform designed to make available Partner-published, third-party Apps to Company Customers.
   6. “Company App” means the cloud-based, software-as-a-service platform for the acquisition, processing, storing, sharing, and analysis of data, as well as the associated mobile platform, and includes, without limitation, all DroneDeployⓇ and StructionSiteⓇ branded software products.
   7. “Customer” means a client or customer of Partner who contracts with Partner or Partner’s agents, resellers or distributors for the Partner Offering, provided that the client or customer has also entered into a contract with Company, or with Company’s resellers or distributors, for the Company App.
   8. “Intellectual Property Rights” means any intellectual property or proprietary rights recognized in any country or jurisdiction in the world including without limitation copyrights, moral rights, trademarks (including logos, slogans, trade names, and service marks), patent rights (including without limitation patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights.

2. Permitted Uses

   1. Use of the Company App. For the duration of, and subject to the terms and conditions of this Agreement, Company grants to Partner a non-exclusive, non-transferable, non-sublicensable, royalty free license and right to use the Company App and the components of the Company App, solely to the extent necessary to create one or more App(s) on or between the Partner Offering and the Company App. Partner has no authority to sublicense or make available the Company App to Customers.
   2. Restrictions. Partner will not, and will not allow any third party to (a) modify, copy, or otherwise reproduce the Company App in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the software used in the Company App; (c) provide, lease or lend the Company App, or documentation to any third party; (d) remove any trademarks, logos, copyright notices, proprietary notices or labels displayed on the Company App or documentation; (e) modify or create a derivative work of any part of the Company App or documentation; or (f) use the Company App or documentation for any unlawful purpose. This license does not include use of the Company App for Partner’s internal productive purposes.

3. Obligations of Both Parties

   1. Company’s Support of Partner.
      Company will provide development support to Partner to aid in its development of the App(s). Company will provision a development and test environment for Partner, will deliver API documentation and developer toolkits to Partner and will enable Partner access to Company’s partner support team. To facilitate Partner’s App development effort, Company will provide, at no additional cost, two (2) non-exclusive, non-transferable, non-sublicensable, royalty free Company App licenses for marketing and demo purposes.
   2. App Development. Partner agrees to develop or cause to be developed a commercially available, supported App on or between the Company App and Partner Offering within three months of the Effective Date of this Agreement.
   3. App Market.
      1. App Approval. Before Partner’s App is listed on the App Market, Company will review the App and either approve, deny, or make recommendations. Apps must comply with the App Market design guidelines described here, be free of malware and provide a properly formatted description of the App, as stated in the App Market template. Approving the App means that the App will be listed on the App Market as soon as reasonably possible. Denial of the App may be, including but not limited to, the result of (1) competitive offering (2) incorrect data or positioning (3) low quality integration (4) security concerns (5) failure to adhere to the design guidelines and for other reasons not identified in this section. Each party hereby waives any claim against the other for damage of any kind (including damages for unjust enrichment, loss of prospective profits, and loss of opportunities or investments made) based on the denial of the App, for whatever reason. Apps will be re-submitted for approval to Company whenever updated by Partners. In the event Company does not approve Partner’s App and Partner does not attempt to modify the App for approval, this Agreement will be terminated and it is agreed that both parties do not have any further liability towards each other.
      2. Pricing and Revenue Sharing. Partners may monetize approved Apps by making them “paid”. For Partner-developed, paid Apps, Partner and Company agree to share revenue as follows; Partner receives seventy percent (70%) of the revenue and Company retains thirty percent (30%) of the revenue. Revenue share payments to the Partner will be aggregated and remitted by Company at the end of the month following the calendar month in which the transaction was consummated. Partner payments are subject to a $100.00 minimum payment threshold. Once Partner’s share of App revenue reaches or exceeds the $100.00 minimum payment threshold, the revenue may be withdrawn. If Partner’s share of App revenue does not reach $100.00 within 6 months, either following the initial App publishing date or from the date of the last Partner payout, Partner’s revenue balance is reset to $0.00.
      3. Data Privacy, Data Use and Ownership. Partner hereby agrees to abide by the terms of the Company Data Processing Agreement, which is made by reference a part of this Agreement.
      4. Design and Usability Guidelines. Partner’s App must comply with Company App Market design guidelines. Company reserves the right to deny approval for any App that does not satisfy these requirements
      5. Free trial. For paid Apps, Company recommends Partners design their App(s) with the capability to provide the Customer a reasonable trial or demo, at no charge to the Customer.
      6. Terms of service. Partner to provide a link to their then-current terms of service on their listing.
      7. License to Distribute. Partner grants Company a non-exclusive, worldwide license to demonstrate, market and use for demonstration and support purposes, provide access to, and sell Partner App to Customers for the duration and subject to the terms and conditions of this Agreement.
      8. General terms. Company reserves the right to make changes to the App Market at-will including, but not limited to, the removal of Partner Apps that do not perform as stated. Should Company elect to remove Partner’s App from the App Market, Company will notify Partner that they will remove the app within 30 days if Partner does not alter the app as specified by Company.
   4. Customer Support Obligations. Partner will provide Customers with a reasonable level of support for the Partner Offering and the App(s). Reasonable support should align with your standard support practice for your direct customers. Company will provide Customers with support services for the Company App.
   5. Marketing. Both Company and Partner may elect to issue a press release pertaining to Partner participation in the Company Partner Program, the Partner Offering, the App(s) and the Company App, subject to approval of the Company marketing organization. Any issued press release regarding the participation in the App Market by Partner should be approved by both parties. Company will make available a Partner Program badge for use by Company App Market Partners. Partner agrees to comply with Company’s standard brand usage guidelines.
4. Proprietary Rights
   1. In General, This Agreement confers only the right to use the Company App per the terms and conditions of this Agreement while this Agreement and the specified license(s) are in effect, and, does not convey any rights of ownership or Intellectual Property Rights in or to the Company App or the Partner’s offerings. All rights of each party not expressly granted to the other hereunder are reserved by each party
   2. Ownership of Products and Services. As between Company and Partner, Company owns all rights to the Company App, any Intellectual Property Rights therein, any materials relating thereto, and any modifications, enhancements, updates, revisions, or derivative works thereof. As between Partner and Company, Partner owns all rights to the Partner Offering, App and any modifications, enhancements, updates, revisions, or derivative works thereof.
5. Confidentiality and Security
   1. “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), that is marked “confidential” or “proprietary” or that should reasonably be understood by the Receiving Party to be confidential or proprietary, including without limitation the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.
   2. Confidentiality. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party’s Confidential Information to any person or entity other than its officers, principals, employees, and subcontractors who need access to such Confidential Information in order to affect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.
   3. Exceptions. The restrictions set forth in this Section will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; (e) has been approved for release by the Disclosing Party’s prior written authorization; or (f) is disclosed pursuant to court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof to the Disclosing Party to enable the Disclosing Party to the seek a protective order or otherwise prevent such disclosure.
   4. Injunctive Relief. The parties agree that a breach of this Section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual breach of this Section by the Receiving Party.
6. Term and Termination
   1. Term. The initial term of this Agreement is be one (1) year from the Effective Date, and this Agreement will automatically renew for successive periods of one (1) year until one party notifies the other party that it does not wish to renew this Agreement at least thirty (30) days prior to the end of the then-current term, in which case this Agreement will terminate at the end of the then-current term.
   2. Termination. Either party may terminate this Agreement for convenience with thirty (30) days written notice to the other party. Company may terminate this Agreement, effective immediately, upon written notice to Partner, if (a) Partner breaches any provision in Section 2 or Section 5, or (b) Partner breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Company. Partner may terminate this Agreement, effective immediately upon written notice to Company, if Company breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Partner
   3. Return of Materials. All Confidential Information, designs, drawings, formulas or other data, including customer data, financial information, business plans, literature, and sales aids of any kind of a Disclosing Party will remain the property of the Disclosing Party and all documentation will remain the property of Company. No later than 30 days after the termination of this Agreement, each party shall return to the other party or destroy all such items that are in its possession or control, and shall not retain any copies thereof. The Receiving Party will not make or retain any copies of any Confidential Information of the Disclosing Party.
   4. Effect of Termination. Sections 1, 4, 6, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement. Section 5 shall survive for 3 years after termination of this Agreement
   5. Access to the Company App, Wind-down Period. Upon any termination of this Agreement, Partner will immediately cease marketing the App to new Customers. Twelve months after termination of this Agreement, Partner shall cease all use of the Company App, and will discontinue access from Partner’s products or services and Apps to the Company App.
   6. Right to Market. Upon termination of this Agreement, the marketing rights and obligations set out in Section 3 and Section 10 shall immediately cease. Company will cease marketing of the partnership, the Partner Offering and the App(s). Partner will cease marketing of the partnership, the Partner Offering, the Company App and the App(s).
7. Authority; No Warranties
   1. Authority. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under this Agreement; that the execution, delivery and performance of this Agreement has been duly authorized and is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under this Agreement.
   2. Disclaimer of All Other Warranties. Except as expressly provided herein, Company disclaims all warranties with respect to the services, and documentation, whether express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Each party will be solely and individually responsible to comply with all laws and regulations relating to its respective business operations.
8. Indemnification
   1. By Company. Company hereby agrees to defend or settle any third party claim against Partner to the extent due to or arising out an allegation that the Company App infringes any copyright, trade secret, trademark or, U.S. patent, of such third party, provided that Partner notifies Company in writing, and cooperates with Company in, and grants it sole control of, the defense or settlement. Company will pay all costs of such defense and any settlement amounts or final court-awarded costs and damages. Company has no obligation under this Section regarding any claim based on the combination, operation, or use of the Company App with other products or services not provided by Company to the extent such infringement would not have occurred without such combination, operation or use.
   2. By Partner. Partner hereby agrees to defend or settle any third party claim against Company to the extent due to or arising out an allegation that the Partner App(s) infringe any copyright, trade secret, trademark or U.S. patent, of such third party, provided that Company notifies Partner in writing, and cooperates with Partner in, and grants it sole control of, the defense or settlement. Partner will pay all costs of such defense and any settlement amounts or final court-awarded costs and damages. Partner has no obligation under this Section regarding any claim based on the combination, operation, or use of the Partner App(s) with other products or services not provided by Partner to the extent such infringement would not have occurred without such combination, operation or use.
9. Limitation of Liability

   Except for liability arising under Section 8, in no event will either party be liable to the other for any special, consequential, or incidental damages, however caused and on any theory of liability arising in any way out of this Agreement, even if notified of the possibility of such damage. Except for the indemnification obligations under Section 7, the aggregate liability of either party to the other for damages under this Agreement, regardless of the form of the action (and whether in contract or in tort) will be limited to $10,000.

10. General Provisions
    1. Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by email to developer@dronedeploy.com. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.
    2. Independent Contractors. The relationship of Company and Partner is that of independent contractor. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-employee, or agents of each other.
    3. Governing Law Arbitration; Venue. The validity, construction and interpretation of the Agreement will be governed by the laws of the State of California, excluding its conflict of laws provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim, or action arising out of or relating to the Agreement will be settled by binding arbitration in San Francisco County, California, under the rules of the American Arbitration Association by three arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Francisco County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered
    4. Assignment. The Agreement may not be assigned by either one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition, or sale of all or substantially all of the assigning party’s assets.
    5. Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement by such party are delayed or prevented by revolution or other civil disorders; wars; strikes; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other
    6. Compliance With Laws. Each party represents and warrants that it will comply with all applicable laws and government regulations in its performance of this Agreement.
    7. Order of Precedence. This Agreement constitutes the entire agreement between Company and Partner with respect to the subject matter hereof.