Professional Services Agreement

This Professional Services Agreement (this “Agreement”) is entered into between DroneDeploy, Inc. (“Company” or “we”) and the undersigned customer (“Customer” or “you”), effective as of the date of the last signature (“Effective Date”) and applies to your use of the Professional Services. This Agreement is a supplement to any other active, duly executed contract that you have with Company.

1. Certain Definitions.
   1. Available Services.
      • “Data Collection Services” means Company performing flights or otherwise operating a Robot or providing ground-based video-recording services for Customer, as specified in the Order Form.
      • “Online Services” means any online, web-based services and associated offline components made available by Company to Customer, including, without limitation, all DroneDeployⓇ and StructionSiteⓇ branded software products.
      • “Professional Services” means the professional services that Customer purchases under an Order Form or online purchasing portal. The Professional Services include Data Collection Services but exclude any Online Services.
   2. Other Definitions.
      • “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.
      • “Deliverable” means the deliverables explicitly identified as “Deliverables” in the Order Form with respect to the Professional Services, if any.
      • ""Order Form.” means an order form signed by both parties that includes Professional Services
      • “Robot” means an unmanned aerial vehicle (UAV), drone or other robot that Company uses in connection with the Professional Services.
      • “Subsidiary” means any entity that is Controlled by Company.
2. Professional Services.
   1. Scope of Professional Service. Company will provide to Customer the Professional Services specified in an Order Form, subject to Customer’s payment of all applicable fees as set forth in the “Fees” section of this Agreement.
   2. Relationship to Online Services. This Agreement is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by Customer are governed by a separate agreement. Customer agrees that its purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than any Deliverables, subject to the terms of the applicable Order Form, or on any oral or written public comments by Company regarding future Online Service functionality or features.
   3. Robot Operations. If the Professional Services include Data Collection Services using a flying Robot, then Company shall ensure that its performance of the Professional Services is made in compliance with all applicable legal requirements for the operations of such Robot, including maintaining the required Federal Aviation Administration (FAA) licenses and obtaining proper airspace authorizations. Company shall use commercially reasonable efforts to comply with Customer’s policies and procedures, if any, that apply to the Data Collection Services. Unless otherwise agreed to by both parties, in performing the Professional Services, Company’s personnel will observe the working hours, working rules, and holiday schedules of Customer while working on Customer’s premises provided that Company’s personnel are provided reasonable prior notice of all such hours, rules and schedules.
3. Customer Cooperation.
   1. Cooperation. Customer will cooperate reasonably and in good faith with Company in its performance of Professional Services by, without limitation: (a) allowing reasonable access to its premises in order to perform the Professional Services; (b) unless otherwise specified in the Order Form, providing at least 72 hours advance notice of when the Professional Services will be required; (c) providing written copies of all of Customer’s policies and procedures, if any, that apply to the performance of the Professional Services at or before executing an Order Form providing for the Professional Services; (d) obtaining all approvals and authorizations required for the performance of the Professional Services on the applicable Customer premises; (e) timely responding to Company’s inquiries related to the Professional Services; (f) assigning an internal project manager for the Order Form to serve as a primary point of contact for Company; (g) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Company to perform its obligations under each Order Form, including continuous administrative access to Customer’s Online Service account; and (h) actively participating in scheduled project meetings.
   2. Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by Customer may result in additional applicable charges for resource time.
4. Delivery and Acceptance.
   1. Delivery of Professional Services. Company will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable Order Forms.
   2. Acceptance of Deliverables. For the avoidance of doubt, this section only applies if an Order Form includes identified Deliverables. Upon completion of each Deliverable, Company will provide such Deliverables to Customer. If Customer, in its reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria, Customer must so notify Company in writing within 10 business days after Company’s submission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable Order Form Customer may, as its sole and exclusive remedy, terminate the relevant portion of the Order Form immediately upon written notice and recover all Professional Services fees paid for such deficient Deliverable.
5. Fees and Payment.
   1. Fees. Customer will pay all fees specified in Order Forms or if no rate is specified in the Order Form, Company’s standard rates in effect at the time the Order Form is executed. Except as otherwise specified herein or in an Order Form, fees are based on Professional Services purchased and not actual usage. Customer will reimburse Company for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable Order Form, Company will not exceed such estimate without the written consent of Customer.
   2. Invoicing and Payment. Charges will be invoiced in advance unless otherwise expressly stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
   3. Overdue Charges. If any amounts not paid by the due date then, without limiting Company’s rights or remedies, (a) those charges may accrue late interest at the lower of 1.5% per month or the maximum rate permitted by law, (b) Company may cease to perform all or a portion of the Professional Services until the invoice is paid, and/or (c) Company may condition future purchases of Professional Services on different payment terms.
   4. Payment Disputes. Company will not exercise its rights under the “Overdue Charges” section if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
   5. Taxes. Company’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 Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
6. Proprietary Rights and Licenses.
   1. Intellectual Property. Ownership of any data or intellectual property generated using the Online Services is governed by your agreement for Online Services. Customer does not grant to Company any rights in or to Customer’s intellectual property except such licenses as may be required for Company to perform its obligations hereunder. Except as stated herein, as between the parties, Company and Customer each retains all right, title and interest in its respective intellectual property and Confidential Information.
   2. Deliverables. If any Deliverables are specifically included in the Order Form, subject to Customer retaining its intellectual property rights, Company will own the Deliverables. Upon Customer’s payment of fees due under an applicable Order Form, Company grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for its internal business purposes associated with its use of the Deliverables.
7. Confidentiality.
   1. Confidential Information. “Confidential Information” means any information relating to or disclosed in the course of this Agreement, which is or should be reasonably understood to be confidential. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by a party without the written consent of the other) and any non-public information or data regarding the performance of the Professional Services is Company Confidential Information. Confidential Information does not include information that (a) is or becomes part of the public domain through no fault of the receiving party, (b) was already in possession of the receiving party, or (c) was independently developed by the receiving party without violation of this section.
   2. Mutual Obligations. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations and exercising its rights under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. The receiving party may disclose Confidential Information if required to do so by law, if the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure.
8. Warranties and Disclaimer.
   1. Warranty. Company warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Customer’s exclusive remedy and Company’s entire liability will be the re-performance of the applicable Professional Services. If Company is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to Company for the deficient Professional Services. Customer must make any claim under the foregoing warranty to Company in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.
   2. Disclaimer. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Indemnification
   1. Indemnification by Company. Company will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party arising out of death, personal injury or damage to tangible property to the extent caused by Company personnel in their performance of the Professional Services, and will indemnify Customer for any damages, attorneys fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved in writing by Company of, any such Claim, all of the foregoing to the extent caused by Company personnel, provided that Customer: (a) promptly gives Company written notice of the Claim; (b) gives Company sole control of the defense and settlement of the Claim (except that Company may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) gives Company all reasonable assistance, at Company’s cost. The above defense and indemnification obligations do not apply to the extent a Claim arises from Customer’s breach of this Agreement or applicable Order Forms.
   2. Mutual Indemnity. Each party (the “Provider”) will defend the other party and its Affiliates (the “Recipient”) against any Claim made or brought against the Recipient by a third party alleging that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder (“Material”) infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Recipient from any damages, attorneys fees and costs finally awarded against the Recipient as a result of, or for amounts paid by Recipient under a settlement approved in writing by Provider of, any such Claim, provided that the Recipient: (a) promptly gives the Provider written notice of the Claim; (b) gives the Provider sole control of the defense and settlement of the Claim (except that the Provider may not settle any Claim unless it unconditionally releases the Recipient of all liability); and (c) gives the Provider all reasonable assistance, at the Provider’s cost. The Provider will have no liability for any such Claim to the extent that (i) it arises from specifications or other Material provided by the other party, or (ii) such claim is based on the Recipient’s use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the Recipient. In the event that some or all of the Material is held or is reasonably believed by the Provider to infringe or misappropriate, the Provider may in its discretion and at no cost to the Recipient (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for the Recipient’s continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from the Recipient. If the Provider exercises option (C), either party may terminate the relevant Order Form upon 10 days’ written notice given within 30 days after the Provider’s exercise of such option, subject to the “Payment Upon Termination” section below.
   3. Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
10. Limitation of Liability.
    1. Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE PROFESSIONAL SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
    2. Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. Term and Termination, Suspension.
    1. Term. This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.
    2. Termination for Convenience. Either party may terminate this Agreement at any time for convenience upon 30 days’ written notice to the other. To the extent there are Order Forms in effect when a party terminates this Agreement, such Order Forms shall continue to be governed by this Agreement as if it had not been terminated.
    3. Termination for Cause. A party may terminate this Agreement and/or any Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    4. Payment Upon Termination. Upon any termination of an Order Form, Customer will pay, in accordance with the “Invoicing and Payment” section of this Agreement, any unpaid fees and expenses incurred on or before the termination date. In the event that Customer terminates an Order Form and Customer has pre-paid any fees for Professional Services not yet received, Company will refund such pre-paid fees. In the event that Company terminates an Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an Order Form.
    5. Suspension. Company may suspend or terminate the Professional Services that Company’s judgment may create liability for Company. Company will use commercially reasonable efforts under the circumstances to inform Customer of the suspension or termination as quickly as possible and will work with Customer in good faith if Customer attempts to resolve the issue. For the avoidance of doubt, fees will not be tolled during any suspension or termination and no refunds will be given.
    6. Surviving Provisions. The sections titled “Fees and Payments,” “Proprietary Rights and Licenses,” “Confidentiality,” “Warranties and Disclaimer,” “Indemnification,” “Limitation of Liability,” “Term and Termination” and “General” will survive any termination or expiration of this Agreement.
12. Insurance. Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.
13. General Provisions.
    1. Export Compliance, Anti-Corruption. The Professional Services, including the Deliverables that Company makes available, and any derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer will not permit any User to access, use or export any of the foregoing 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. Each party represents that it is not named on any U.S. government denied-party list. In addition, each party represents that it has not 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.
    2. Marketing. Unless provided otherwise in the Order Form, Company may publicly refer to Customer orally and in writing, including on Company’s website and sales presentations, as a customer of Company and may use Customer’s logo for such purposes.
    3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between the parties relating to this subject matter and supersedes all other agreements, proposals or representations, written or oral, concerning such subject matter, including any agreement with StructionSite, Inc. or any other Company Subsidiary in relation to Professional Services. The agreement governing the Online Services continues to apply, and if Customer purchases additional services or uses the Company API, additional terms may apply. Any conflicting or additional term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms executed by Company) is void. In the event of conflict or inconsistency, the order of precedence shall be: (1) the applicable Order Form, (2) the agreement governing the Online Services, and (3) this Agreement. 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. Assignment. This Agreement is not transferable or assignable without prior written consent of the non-assigning party, except that either party may assign this Agreement in its entirety (including all Order Forms) without consent to an 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 notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    5. Notice. All notices shall be given and directed to Company, Inc., attention: General Counsel, 548 Market St. #34583, San Francisco, California 94104, U.S.A., with an email copy to legal@dronedeploy.com. All notices to Customer will be addressed to the relevant Services system 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) email with confirmation of receipt, and (b) the second business day after mailing. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer.
    6. Miscellaneous.
       • The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Company may use third party service providers to provide Professional Services on its behalf, provided that Company will remain responsible for fulfilling its obligations under this Agreement. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. There are no third-party beneficiaries under this Agreement.
       • No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.
       • The parties acknowledge and agree that they have been represented in the negotiation and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel.
       • This Agreement cannot be amended except by a writing signed by both parties; provided that Company may update this Agreement as specified in the introductory paragraphs from time to time and Customer agrees to the modified terms by continuing to use the Services after the Agreement has been updated.
       • This Agreement is governed by the laws of the United States of America and the State of California, excluding conflicts of laws principles. The UN Convention on Contracts for the International Sale of Goods is expressly excluded.
       • The parties will address any dispute arising under or related to this Agreement in the federal or state courts in San Francisco County, California. Each party waives any right to a jury trial and right to participate in any class action lawsuit. All claims arising under or related to this Agreement must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in a class action or similar proceeding.
       • Any delay in the performance of any duties or obligations of either party (except payment obligations) will not be considered a breach of this Agreement if such delay is caused by emergency maintenance and any unavailability caused by circumstances beyond Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, strike or other labor problem (other than one involving Company’s employees), Internet service provider failure or delay, or other Customer hardware or systems, or denial of service attack. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.