Effective: December 2, 2020 to April 13, 2021.
(Last Updated: December 2, 2020)
These terms and conditions (“Agreement”), together with any Order Form (as defined herein) referencing this Agreement are entered into by and between Skydio and the party identified in the Order From (“Customer” or “You”) and contain the terms and conditions that govern the purchase, use and access by Customer to certain Skydio hardware and software, as described below. In consideration of the mutual promises and upon the terms and conditions herein, the parties agree as follows:
1. Definitions. Any capitalized terms used in this Agreement that are not otherwise defined in this Agreement shall have the meaning as set forth below:
“Authorized Devices” are (a) mobile devices that Customer owns or is authorized to use, and (b) controllers purchased by Customer hereunder, which in each case (a) and (b) are used by Customer to operate the Hardware purchased by Customer hereunder.
“Base Software” means capabilities, functions or other features of the Onboard Software that are both: (a) standard capabilities, functions or other features available and activated on Skydio Hardware, and (b) available for use without purchase of Optional Software Package. Base Software may be specified and identified as standard features in the Order Form. Any capability, function, or feature that is not a Base Software shall be deemed an Optional Software.
“Confidential Information” means all nonpublic 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, given the nature of the information or circumstance surrounding its disclosure, should reasonably be understood to be confidential. Skydio Confidential Information will include nonpublic information relating to Skydio’s or its partners’ product or services, technology, customers, business plans, promotional or marketing activities and financial information, third party information that Skydio is obligated to keep confidential, and the nature and content of any discussions or negotiations between the parties. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any confidentiality obligation, (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any confidentiality obligation, (c) is received from a third party without breach of any confidentiality obligation or (d) was independently developed by the receiving party without reference to disclosing party’s Confidential Information.
“Error” means a critical error in the Optional Software that causes the Optional Software to be inoperable.
“EULA” means the Skydio End User License Agreement located at https://www.skydio.com/pages/EULA.
“Hardware” means drones and other unmanned aircraft, controllers, accessories and related hardware that Customer purchases from by Skydio or its distributors or resellers.
“License Term” means with respect to an Optional Software Package, the term of that Optional Software Package, including (if applicable) the initial specified term and any renewal terms.
“Mobile Apps” are software applications (in executable form only), specified on the Order Form, that are specifically intended for use on a mobile device (and any Updates thereto).
“Onboard Software” means software, in executable format only, embedded into or otherwise pre-installed on Hardware as supplied by Skydio, and any Updates thereto, whether or not embedded on read only memory. Onboard Software includes Base Software and Optional Software.
“Optional Software” means optional capabilities, functions or other features of the Onboard Software that may be specified and identified as such in the Order Form. Skydio’s characterization of capabilities, functions or other features as Optional Software shall be dispositive. Notwithstanding any other provision herein, a software feature that is locked or otherwise disabled unless or until an Optional Software Package is purchased for such software feature shall be deemed an Optional Software. Optional Software does not include Mobile Apps.
“Optional Software Package” means an optional, additional-charge license right, specified in the Order Form, pursuant to which Skydio shall unlock Optional Software to permit Customer to use Optional Software (and in some cases the Hardware that it controls).
“Order Form” means the written ordering document physically or electronically signed by both Customer and Skydio which specifies the Hardware, Optional Software Package and other Software licenses purchased by Customer.
“Product” means Skydio Hardware and Software, as provided by Skydio pursuant to this Agreement and any applicable Order Form.
“Software” means Onboard Software and Mobile Apps.
“Support Term” means, for Base Software, the support term specified in the Order Form, and, for each Optional Software Package, the applicable License Term for such Optional Software Package purchased hereunder.
“Updates” means any upgrades, updates, maintenance releases, bug fixes or modified versions of Software that Skydio may release from time to time.
2. General Conditions. Customer may purchase Skydio Products by agreeing to and executing the Order Form and, upon such execution of the Order Form, the Agreement shall become legally binding between the parties. This Agreement, together we any other terms and conditions incorporated by reference herein, constitutes the entire agreement, and exclusively governs the relationship, between Skydio and Customer related to the purchase, use and access by Customer of Skydio Products. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order From, the terms of the Order form shall control. This Agreement supersedes all prior or contemporaneous agreements, understandings, statements, proposals or representations, whether written or oral, between the parties and any other terms or conditions associated with any purchase order, invoice or other ordering document submitted by Customer to Skydio, and such documents shall not be deemed to modify, alter, supersede or supplement this Agreement or have any force of effect, regardless of any statement to the contrary in such document. Customer assumes all responsibility and liability for its agents, third party service providers and any users of Products purchased either directly or indirectly from Skydio under this Agreement.
3. Shipping Terms and Risk of Loss.Shipping terms are EXW Skydio Warehouse (Fremont, California) or other Skydio designated shipment point (INCOTERMS 2010). Title (except title to licensed Software, which remains with the applicable licensor) and risk of loss or damage to Skydio products that are the subject of this Agreement shall pass from Skydio to the Customer upon the shipping of the products from the designated shipping point. Delivery and acceptance by Customer shall be deemed to have occurred at the designated shipping point. Customer shall be responsible for all freight, handling and insurance charges. Shipping dates may change due to unpredictable market trends or other causes beyond Skydio’s reasonable control. Skydio retains a first priority security interest and lien on any and all of your right, title and interest in the Hardware until paid in full, including any late payment fees and cost of collection. Customer shall cooperate with Skydio as requested by Skydio to perfect any Skydio security interest in the products.
4. Fees, Invoicing and Payment.The price for Hardware (“Purchase Price”) and fees for Optional Software Packages (“Fees”) shall be as specified in the Order Form or, if not so specified, then as otherwise quoted by Skydio or, in the absence of a quote, then at Skydio’ s standard prices and fees in effect at the time the order is placed. Customer shall pay Skydio the Purchase Price, Fees, and (as applicable) taxes and shipping costs, in accordance with this Agreement and the Order Form. Unless otherwise expressly set forth in the Order From, all invoices shall be paid within thirty (30) days of the date of invoice. For all undisputed amounts not paid when due, Skydio may charge interest at the lower of 1.5% interest rate per month or the highest rate permissible by law until the unpaid amounts are paid in full. Unless otherwise specified in the Order Form, all Fees are payable and charged (i) at the beginning of the initial term, when you place your order and, (ii) at the time of each renewal, when a current term renews automatically, until you cancel it in accordance with this Agreement. Customer elects to pay recurring Fees by credit card or debit card, as specified on the Order Form, it hereby authorizes Skydio to charge the card as recurring Fees are due. Each License Term is a continuous and non-divisible commitment to purchase the applicable Optional Software Package for the full duration of the then-current License Term, regardless of the payment schedule. All orders are non-cancellable and all amounts paid pursuant to this Agreement are non-refundable, except as expressly provided in this
5. Taxes. The Purchase Price or Fees do not include any foreign, federal, state or local taxes, or sales, use, consumption, excise, ad valorem, value-add, withholding or other applicable taxes or duties. When Skydio has the legal obligation to collect such taxes, the appropriate amount shall be added to the Order Form or Customer’s invoice, and paid by Customer unless Customer provides Skydio with a valid tax exemption certificate prior to issuance of a purchase order. Such certificate must be in a form authorized by the appropriate taxing authority.
6. EULA. The Skydio EULA governs Customer’s use of any Skydio Software that is pre-installed, downloaded, installed or otherwise provided in connection with any Skydio Hardware pursuant to this Agreement. The Skydio EULA is hereby incorporated by reference herein and Customer agrees to comply with all terms and conditions of the Skydio EULA.
7. Term and Termination. This Agreement is effective upon purchase of a Product and shall continue until terminated pursuant to this Section. If Customer breaches this Agreement (including by failing to pay amounts owed when due) Skydio may, in addition to its other rights and remedies hereunder or at law: (a) terminate this Agreement in its entirety along with all Optional Software Packages then in effect, or (b) terminate one or more Optional Software Packages and/or licenses granted hereunder, while leaving this Agreement and, if applicable, the remaining Optional Software Packages and licenses in effect. In no event will termination of this Agreement relieve Customer of its obligation to pay any Fees payable to Skydio for the period prior to the effective date of termination. The following sections shall survive the termination or expiration of this Agreement: Sections 1-14 and 16-24.
8. Restrictions and Responsibilities. Customer represents, covenants and warrants that: (i) Customer will use the Skydio Products subject to this Agreement only in compliance with, and subject to all limitations and instructions in, any provided documentation and only as expressly permitted under this Agreement; (ii) Customer will comply with all relevant laws, rules, regulation and statutes set forth by governments, law enforcement and regulatory agencies when using the Skydio Products and that Customer will not use the Products for any illegal purpose; (iii) Customer will not operate any Product outside of the United States, Japan or Canada; (iv) Customer will not use the Product in any hazardous activity likely to result in death or injury to persons or injury to property; and (v) Customer will comply with all relevant flight limitations and restrictions that may be imposed during the flight and to obtain all required approvals, licenses and clearances from any government agencies before the flight. Customer agrees that Customer is solely responsible for the safety of Customer’s flight operations using Skydio Products.
9. Safety and Compliance. Customer and Customer’s authorized users agree to use the Skydio Products only in a manner that complies with all laws. Customer shall ensure that it and its authorized users operate any Product in accordance with the information and warnings set forth at https://support.skydio.com/hc/en-us/articles/360000586653-Skydio-R1-safety (https://support.skydio.com/hc/en-us/articles/360000586653-Skydio-R1-safety)(the “Safety and Operating Guide”) and any other published product materials, technical specifications, user manuals, maintenance guidelines and support communications provided by Skydio from time to time. Customer acknowledges that improper operation of the unmanned aircraft systems may cause injury to persons or property. Customer shall at all times comply with all applicable local, state, national and international laws and regulations related to the operation of unmanned aircraft systems in any territory of operation, including any applicable laws and orders with regard to privacy, pilot licensure, operating within visual line of sight (unless the Customer has received proper approval from a civil aviation authority waiving such limitation), detecting and avoiding other aircraft, and airspace restrictions (such as temporary flight restrictions issued by Federal Aviation Administration or other appropriate government agencies). Customer shall obtain and maintain all necessary licenses, consent and authorizations of any kind necessary to operate unmanned aircraft systems.
a. Confidential Information. The Receiving Party agrees to: (i) protect the Disclosing Party's Confidential Information using the same degree of care, and in no event less that reasonable care, that it uses to protect its own Confidential Information, (ii) use the Disclosing Party's Confidential Information for only for purposes consistent with this Agreement, and (iii) limit access to Disclosing Party's Confidential Information to its employees, contractors or agents who are involved in performing this Agreement, have a "need to know" and have signed a non-disclosure agreement with terms no less restrictive than those herein.
b. Compelled Disclosure. If the Receiving Party is compelled to disclose by law, order issued by a court of competent jurisdiction, regulatory agency or other governmental body (each, an "Order") any Confidential Information, the Receiving Party will promptly give the Disclosing Party written notice of the Order and reasonable assistance to the Disclosing Party prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order and seek a protective order or other appropriate relief.
c. Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) regarding Skydio’s Products. Feedback is entirely voluntary. Skydio may use Feedback for any purpose without obligation of any kind. Customer hereby assigns to Skydio exclusively and perpetually, all rights, titles, and interests, including all intellectual property rights, Customer may have in the Feedback.
11. Intellectual Property. Customer agrees that all worldwide patent, copyright and other intellectual property rights in the Product, and all copies of the Software however made (including copies pre-installed on the Hardware purchased by Customer) are the exclusive property of Skydio and its suppliers. All Software is licensed to Customer, not sold. All rights not expressly granted to Customer in this Agreement are reserved by Skydio and its suppliers. There are no implied licenses under this Agreement.
12. Skydio Indemnification. Skydio shall defend at its expense any suit brought against Customer and shall pay all damages finally awarded in such suit solely to the extent that such suit is based on a claim that Hardware or Software, as provided to Customer, infringes a U.S. patent or copyright, provided that Skydio is notified within fourteen (14) days of such claim and is given full and complete authority (including settlement authority), information, cooperation and assistance by Customer for such defense. If a Product is held in any such suit to infringe such a right and its use is enjoined, or if in the opinion of Skydio the Product is likely to become the subject of such a claim, Skydio at its own election and expense may either (i) procure for Customer the right to continue using the Product, (ii) modify or replace the Product so that it becomes non-infringing or (iii) if neither of the foregoing alternatives is reasonably practicable, immediately terminate Skydio’s obligations and Customer’s rights under this Agreement with regard to such Product and, if Customer returns such Product to Skydio, refund to Customer the price originally paid by Customer to Skydio for such Product as depreciated or amortized by an equal annual amount over the lifetime of the Product, as established by Skydio at its sole discretion. The indemnification obligation will not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Product by a party other than Skydio, (ii) the combination of the Product with items not supplied by Skydio, (iii) misuse of the Product, (iv) Skydio’s compliance with Customer’s designs or specifications or (v) Customer’s failure to use the most recent version of the Software provided by Skydio to Customer, and Customer shall indemnify and hold Skydio harmless from and against any claim (including claims of contributory infringement or inducing infringement) arising out of (i) – (v) above. THIS SECTION STATES CUSTOMER’S EXCLUSIVE REMEDY AND SKYDIO’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
13. Customer Indemnification. Customer shall defend, indemnify and hold harmless the Skydio Parties (as defined below) from and against any claim or demand, losses, liabilities, damages, costs or expenses, causes of action, suits, proceedings, judgments, and awards, including reasonable attorneys’ fees and costs, brought by a third party and arising out or related to Customer’s (or its authorized users’): (i) breach of this Agreement, (ii) use of a Product (except suits with respect to which Skydio is obligated to defend Customer under the proceeding Section), (iii) violation of any applicable law or regulation or (iv) Customer’s violation of any third party right, including property, privacy, publicity, confidentiality or intellectual property right. The indemnity obligations of this Section shall survive any termination of the Agreement. Skydio may, at its own expense, assume the exclusive defense and control of any matter subject to indemnification by Customer, which shall not excuse Customer’s indemnity obligations under this section. Customer agrees not to settle any matter subject to the foregoing indemnification obligations without the written consent and approval of Skydio.
15. Support Services. In accordance with this Agreement, so long as Customer timely pays all amounts owed hereunder, Skydio shall render to Customer, during the Support Term, the support services (“Services”) consisting of: (a) providing Customer’s named Administrators (as defined below) with consultation in English, via telephone, chat and email, during Skydio’s normal business hours to assist with any Errors encountered by Customer and (b) making reasonable efforts to correct an Error, all in accordance with Skydio’s support policies published on its website, as updated from time to time. Errors do not include, and Skydio has no obligation to correct, malfunctions caused in whole or in part by modification of Software, the operation of third-party products or the integration of Software with or into third-party products, improper installation of the Optional Software or other Software, or the use of Software other than in accordance with the applicable specifications provided by Skydio. No other services are included under this Agreement. Customer shall designate up to three (3) of its employees to assist with administration of the Services on its behalf and serve as points of contact in communicating with Skydio, as agreed by the parties in writing (“Administrators”).
16. Limited Warranty. The only warranty that Skydio provides with respect to any Skydio Product or services is the written limited warranty statement provided with the products or services or as otherwise set forth at https://www.skydio.com/pages/warranty-terms (“Limited Warranty”). The Limited Warranty is subject to Skydio Product End of Life Policy.
17. DISCLAIMER. ANY USE OF THE PRODUCTS, INCLUDING ANY RELIANCE UPON OR USE OF ANY OF THE INFORMATION GENERATED THEREBY, SHALL BE AT CUSTOMER’S AND ITS AUTHORIZED USERS’ SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THE LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND (ALL OF WHICH ARE HEREBY DISCLAIMED), WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER AND ITS AUTHORIZED USERS HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERALRELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” CUSTOMER AND ITS AUTHORIZED USERS HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKYDIO ALSO LIMITS THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES OR CONDITIONS TO THE DURATION SPECIFIED IN THE LIMITED WARRANTY STATEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSES.
18. LIMITATION OF LIABILITY. IN NO EVENT SHALL SKYDIO OR ANY OF ITS LICENSORS OR INFORMATION PROVIDERS AND OTHER SUPPLIERS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES AND AGENTS (COLLECTIVELY, “SKYDIO PARTIES”) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR LOSS OF PROFITS, REVENUE, USE, OR DATA, ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF OR INABILITY TO USE PRODUCTS, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ARISING UNDER ANY OTHER LEGAL THEORY, EVEN IF SUCH SKYDIO PARTY IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, THE SKYDIO PARTIES’ AGGREGATE LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY CLAIMING THROUGH CUSTOMER IS LIMITED TO THE GREATER OF $100 OR THE AMOUNTS PAID BY CUSTOMER UNDER THE ORDER FORM IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. The foregoing limitations apply, even if the remedy fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
19. End of Life. Skydio may discontinue any Product or Services in its sole discretion pursuant to Skydio Product End of Life Policy, and the provision of any Product or Services is subject to Skydio Product End of Life policy, which can be found on Skydio website.
20. Export Sales and Export Controls. Customer acknowledges that the Skydio products, services and technology are subject to export controls under the laws and regulations of the Territory and the United States (U.S.). Customer shall comply with such laws and regulations governing use, export, re-export, and transfer of Skydio products, services and technology and shall obtain all required U.S. and local authorizations, permits, or licenses. Skydio and Customer each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations and licenses, and to take timely action to obtain all required supporting documentation.
21. Force Majeure. Skydio shall be excused from any obligation to the extent performance thereof is affected by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, pandemics, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other reason beyond the reasonable control of Skydio.
22. Governing Law; Consent to Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the local laws of the State of California, USA, without reference to its conflicts of laws principles. The parties irrevocably consent to the exclusive jurisdiction and venue of the courts located in San Francisco, CA for any legal action between them arising out of or related to this Agreement or any Order Form(s). Customer agrees to waive the right to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind. The United Nations Convention on Contracts for the International Sale of Goods shall have no application to this Agreement.
23. Notice. Except as expressly otherwise provided herein, all notices shall be in writing and deemed delivered the earlier of actual receipt or one business day after delivery to a nationally recognized overnight courier (receipt requested) to the receiving party’s address as specified herein or updated by written notice.
24. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party; provided, however, a party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement and Skydio may assign this Agreement to any affiliate. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
25. Modifications. Any modification to this Agreement must be in writing and signed by both parties. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.
(Prior Terms - August 28, 2020 to December 1, 2020)