Hardware Purchase Agreement

This Hardware Purchase Agreement (this “Agreement”) applies to your acquisition of the Hardware. This Agreement is a supplement to any other active, duly executed contract that you have with DroneDeploy.

UNDER THIS AGREEMENT, YOU AND DRONEDEPLOY WAIVE ANY RIGHT TO JURY TRIAL OR TO PARTICIPATE IN A CLASS-ACTION LAWSUIT.

You represent that you are authorized to act on behalf of the owner of the account you are registering or using (such owner, “Customer” or “you”) and to bind them to this Agreement. By executing an Order Form or otherwise indicating your agreement to this Agreement and/or purchasing the Hardware, Customer is entering into this binding Agreement with DroneDeploy, Inc. (“DroneDeploy” or “we”).

We may modify this Agreement to, for example, reflect changes to the law or changes to our Hardware. Such modifications will take effect on the stated update date unless you have a then-active Order Form for a specified term, in which case such changes will take effect for any extensions or renewal terms. We will post notice of modifications to this Agreement on this page. If you do not agree to the modified Agreement, you should not purchase the Hardware.

1. Certain Definitions.
   1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. “Delivery Point” means the address to which DroneDeploy will send the Hardware for delivery to Customer, which is specified in the Order Form.
   3. “Hardware” means the physical goods and hardware assets specified on the Order Form, excluding any software or services specified on the Order Form.
   4. “Order Form” means an ordering document or online order specifying the Hardware to be provided hereunder that is entered into between Customer and DroneDeploy or any of their Affiliates, including any addenda and supplements thereto.
2. Purchase of Hardware.
   1. Sale. DroneDeploy shall sell to Customer and Customer shall purchase from DroneDeploy the Hardware in the quantities and at the prices specified in the Order Form and upon the terms and conditions set forth in this Agreement.
   2. Payment Terms. Customer shall pay all invoiced amounts due to DroneDeploy within thirty (30) days of DroneDeploy’s invoice. Customer shall make all payments hereunder by a payment source reasonably acceptable to DroneDeploy (such as bank transfer or ACH) and in US dollars. If any invoiced amount is not received by DroneDeploy by the due date, then without limiting DroneDeploy’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) DroneDeploy may condition mailing or delivery of the Hardware on payment terms shorter than those specified in this section.
   3. No Setoff. Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to DroneDeploy or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by DroneDeploy or its affiliates, whether relating to DroneDeploy’s or its Affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its Affiliates, and DroneDeploy or any of its affiliates, or otherwise.
   4. Taxes. DroneDeploy’s fees do not include all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If DroneDeploy has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, DroneDeploy will invoice Customer and Customer will pay that amount unless Customer provides DroneDeploy with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, DroneDeploy is solely responsible for taxes assessable against it based on its income, property and employees.
3. Shipping and Delivery.
   1. Delivery.
      • DroneDeploy shall use commercially reasonable effort to deliver the Hardware in a prompt manner, although delivery is subject to availability and manufacturer or seller performance. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under this Agreement. DroneDeploy shall not be liable for any delays, loss or damage in transit.
      • DroneDeploy shall deliver the Hardware to the Delivery Point using DroneDeploy’s or the hardware manufacturer or seller’s standard methods for packaging and shipping such Hardware. Customer shall take delivery of the Hardware within two (2) days of DroneDeploy’s written notice that the Hardware have been delivered to the Delivery Point. Delivery is Intercoms® 2020 Rules – DAP – Delivered at Place.
      • If for any reason Customer fails to accept delivery of any of the Hardware on the date fixed pursuant to DroneDeploy's notice that the Hardware have been delivered at the Delivery Point, or if DroneDeploy is unable to deliver the Hardware at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Hardware shall pass to Customer; (ii) the Hardware shall be deemed to have been delivered; and (iii) DroneDeploy, at its option, may store the Hardware until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
   2. Non-Delivery. The quantity of any installment of Hardware as recorded by DroneDeploy on dispatch from DroneDeploy's place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. DroneDeploy shall not be liable for any non-delivery of Hardware (even if caused by DroneDeploy’s negligence) unless Customer gives written notice to DroneDeploy of the non-delivery within two (2) days of the date when the Hardware would in the ordinary course of events have been received. Any liability of DroneDeploy for non-delivery of the Hardware shall be limited to delivering the Hardware within a reasonable time or adjusting the invoice respecting such Hardware to reflect the actual quantity delivered.
   3. Title and Risk of Loss. Title and risk of loss pass to Customer upon delivery of the Hardware at the Delivery Point. As collateral security for the payment of the purchase price of the Hardware, Customer hereby grants to DroneDeploy a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
   4. Inspection and Rejection of Nonconforming Hardware.
      • Customer shall inspect the Hardware within one (1) day of receipt ("Inspection Period"). Customer will be deemed to have accepted the Hardware unless it notifies DroneDeploy in writing of any Nonconforming Hardware during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by DroneDeploy. “Nonconforming Hardware” means only the following: (i) product shipped is different than identified in this Agreement; or (ii) the product's label or packaging incorrectly identifies its contents.
      • If Customer timely notifies DroneDeploy of any Nonconforming Hardware, DroneDeploy shall, in its sole discretion, (i) replace such Nonconforming Hardware with conforming Hardware, or (ii) credit or refund the applicable portion of the price for such Nonconforming Hardware. Customer shall ship, at its expense and risk of loss, the Nonconforming Hardware to DroneDeploy’s facility or back to the manufacturer of the product, as specified in writing by DroneDeploy. If DroneDeploy exercises its option to replace the Nonconforming Hardware, DroneDeploy or the manufacturer shall, after receiving Customer's shipment of Nonconforming Hardware, ship to Customer, at Customer's expense and risk of loss, the replaced Hardware to the Delivery Point.
      • Customer acknowledges and agrees that the remedies set forth in this section are Customer's exclusive remedies for the delivery of Nonconforming Hardware against DroneDeploy. Except as provided under this section, all sales of Hardware to Customer are made on a one-way basis and Customer has no right to return Hardware purchased under this Agreement to DroneDeploy.
4. Warranties.
   • The parties acknowledge and agree that DroneDeploy is purchasing the Hardware of behalf of Customer as a matter of convenience, and that DroneDeploy does not make any representations or warranties regarding the Hardware to the Customer. Any and all claims that Customer may have regarding the Hardware are to be directed to the manufacturer or seller of that Hardware.
   • DRONEDEPLOY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
   • DRONEDEPLOY HAD NO OBLIGATION TO PROVIDE MAINTENANCE OR SUPPORT FOR THE HARDWARE. ALL MAINTENANCE AND SUPPORT OF THE HARDWARE IS THE SOLE RESPONSIBILITY OF CUSTOMER.
5. Manufacturer Terms and Conditions; Information Disclosure
   • As a condition of purchasing the Hardware, Customer is required to agree to, and be legally bound by, the terms and conditions presented by the Hardware manufacturer or supplier. Customer hereby agrees to the terms and conditions of Boston Dynamics, Inc., the manufacturer and supplier of the Spot® Robot, in connection with the purchase of the Hardware: https://www.bostondynamics.com/sites/default/files/inline-files/spot-terms-and-conditions-of-sale.pdf.
   • Customer hereby consents to the disclosure of Customer’s personal information, including without limitation the name, email and address of Customer and its representatives, to the Hardware manufacturers or suppliers for the purpose of enabling or assisting the Hardware manufacturers or suppliers to supply and deliver the Hardware purchased by Customer pursuant to this Agreement.
6. Compliance with Law and Documentation. Customer is in compliance with and shall comply with all applicable laws, regulations, and ordinances in connection with the purchase and use of the Hardware. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement and to safely operate the Hardware. Customer shall comply with all documentation, instructions and warnings of the Hardware manufacturer when using, repairing, storing or otherwise dealing with the Hardware.
7. Limitation of Liability.
   • IN NO EVENT SHALL DRONEDEPLOY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT DRONEDEPLOY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • N NO EVENT SHALL DRONEDEPLOY‘S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO DRONEDEPLOY FOR THE HARDWARE SOLD HEREUNDER.
8. Indemnification. Customer shall indemnify, defend and hold harmless DroneDeploy and its officers, directors, employees, agents, Affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by or awarded against any Indemnified Party relating to, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Hardware or Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without DroneDeploy's or Indemnified Party's prior written consent.
9. Insurance. During the term of this Agreement and for a period of three (3) years thereafter, Customer shall, at its own expense, maintain and carry in full force and effect a commercially reasonable amount of insurance to cover the operation of its business and the Hardware. Such insurance policies shall include DroneDeploy and its Affiliates, officers, directors, employees, agents, representatives, subsidiaries, successors, and assigns as additional insureds and shall provide broad form coverage. Customer will forward to DroneDeploy a certificate of insurance evidencing coverage upon request by DroneDeploy and upon any renewal of such insurance during the term or during the three (3) immediately subsequent years thereafter. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against DroneDeploy’s insurers and DroneDeploy.
10. Termination. In addition to any remedies that may be provided in this Agreement, DroneDeploy may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement or any other agreements that Customer has with DroneDeploy, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11. Confidentiality
    1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
    2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, DroneDeploy may disclose the terms of this Agreement and any applicable Order Form to a subcontractor, service provider or supplier to the extent necessary to perform DroneDeploy’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
12. Surviving Provisions. The sections titled “Payment Terms”, “No Setoff”, “Taxes”, “Warranties”, “Manufacturer Terms and Conditions; Information Disclosure”, “Compliance with Law and Documentation”, “Limitation of Liability”, “Indemnification”, “Insurance”, “Confidentiality”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
13. General Provisions.
    1. Export Compliance. The Hardware may be subject to export laws and regulations of the United States and other jurisdictions. DroneDeploy and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit anyone to access or use the Hardware in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
    2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
    3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between DroneDeploy and Customer regarding Customer’s purchase of the Hardware and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If Customer is purchasing additional services or using the DroneDeploy API, then additional contractual terms may apply. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any software terms between Customer and DroneDeploy, (3) this Agreement, and (4) the any additional terms. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
    4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
    5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
    6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
    7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
    8. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to DroneDeploy), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice to the other Party, within fifteen (15) days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this section, either party may thereafter terminate this Agreement upon thirty (30) days' written notice.
    9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, DroneDeploy will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    10. Governing Law and Dispute Resolution.
        • This Agreement, any dispute arising under or which is related to this Agreement (whether in contract, tort or otherwise), and the validity, performance and interpretation of this Agreement shall be governed by and construed in all respects under, the laws of the United States of America and the State of California without giving effect to its conflicts of law principles. The parties agree that the applicability of the United Nations Convention on Contracts for the International Sale of Goods in its entirety is specifically excluded from application to this Agreement.
        • Any such dispute will be subject to the exclusive jurisdiction of the California state courts in and for San Francisco County, California (or, if there is federal jurisdiction, the United States District Court for the Northern District of California), and all parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction of these courts and that venue therein is proper and convenient. Any judgment or order by any court having proper jurisdiction against either party may be enforced in any court having jurisdiction over such party, as the case may be. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
    11. Notice. All notices shall be given and directed to DroneDeploy, Inc., attention: General Counsel, 548 Market St. #34583, San Francisco, California 94104, U.S.A., with an email copy to legal@dronedeploy.com. All other notices to Customer will be addressed to the relevant administrator designated by Customer. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery with a copy sent by email on the same day, and (b) the second business day after mailing with a copy sent by my email on the day of mailing. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer.