Terms of Sale
Section 1: Applicability
1. The following general Terms and Conditions for the Sale of Products (“Terms and Conditions”) of Dedrone Holdings, Inc. (hereinafter “Dedrone”) shall apply exclusively to all agreements regarding the sale of products manufactured or resold by Dedrone (“Products”) to end customers (collectively “Customer” or “Customers”). The use of Software (as defined in Section 9.1) and subscription services provided by Dedrone for use with the Products is governed by Dedrone’s Terms of Service available at www.dedrone.com/termsofservice (the “Terms of Service”).
2. No changes, amendments or additional terms to the Terms and Conditions shall apply unless they have been expressly agreed in writing by Dedrone. In the event that an Order (as defined in Section 2.2) is placed with reference to the Customer’s terms and conditions, Customer hereby agrees that none of such Customer terms shall apply, even if Dedrone is otherwise aware of the Customer’s conflicting or deviating terms and conditions but nevertheless delivers Products without reservation.
3. The Terms and Conditions shall also apply to all future business dealings with the Customer, including, without limitation, purchase agreements and Orders. If Dedrone has previously explicitly agreed to the Customer’s deviating terms and conditions, such agreement shall not apply to Dedrone’s future business dealings with the Customer unless Dedrone expressly agrees otherwise in writing with respect to such future business dealings on a case-by-case basis.
4. THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR DEDRONE PRODUCTS, CUSTOMER ACCEPTS AND AGREES TO THESE TERMS AND CONDITIONS. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS. CUSTOMER REPRESENTS THAT CUSTOMER IS OF SUFFICIENT LEGAL AGE IN CUSTOMER’S JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND TO ENTER INTO THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS, CUSTOMER SHOULD NOT PURCHASE OR USE DEDRONE PRODUCTS.
5. Dedrone reserves the right to change these Terms and Conditions at any timeEvery time Customer purchases Products from Dedrone, the Terms and Conditions in force at that time will apply between Customer and Dedrone.
6. The disclaimers, exclusions, and limitations of liability under these Terms and Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights.
Section 2: Quotations, Orders and Order Acceptance
1. Save as expressly stated otherwise all quotations by Dedrone are non-binding and subject to change. Statements relating to the Products (e.g. technical data, tolerances, measurements, etc.) and their illustrations shall be for descriptive and identification purposes only and shall not be binding save as expressly stated by Dedrone in writing. Dedrone may from time to time make technical changes or changes to the design of Products which are not reflected in Product documentation. Dedrone reserves all worldwide intellectual property rights in and to cost estimates, drawings and all other documents pertaining to quotations (collectively “Quotation Documents”). Quotation Documents may only be furnished by the Customer to third parties with the prior written consent of Dedrone.
2. Any order by the Customer (“Order”) shall be considered as a binding offer to enter into a purchase agreement. The Customer’s Order and any documents pertaining thereto may be disclosed and conveyed by Dedrone at its discretion to such third parties to whom Dedrone subcontracts or assigns in part or in full the processing of such Order.
3. Dedrone shall not be bound by any Order unless and until Dedrone has confirmed the Order. Oral agreements shall only be binding on Dedrone to the extent that Dedrone confirms such agreements in writing. In conformity with Section 1.2, no terms in an accepted Order except Product quantity (subject to Section 1.4) shall be binding upon Dedrone unless expressly agreed by Dedrone in writing, and Dedrone’s acceptance of an Order shall not be constituted to be an agreement to such additional or conflicting terms unless such terms are expressly restated and agreed to, item by item, in Dedrone’s written acceptance.
Section 3: Pricing and Availability
1. Except as expressly agreed otherwise in writing by both parties, the prices applicable to the ordered Products and Services (hereinafter “Prices”) shall be the prices shown on the applicable Order as accepted by the Dedrone. Prices for the Products are subject to change at any time, but changes will not affect any order for Products Customer has already placed or for orders previously fulfilled.
2. Except as expressly agreed otherwise in writing by both parties, all Prices shall be Ex Works (Incoterms 2016) Dedrone’s shipping point in accordance with the most recently published Incoterms at the time the Order is placed, and shall be exclusive of shipping charges, packaging charges and transport insurance, which will be invoiced separately.
3. Prices are on a net basis and exclusive of any applicable duties, sales tax, value added tax or any equivalent tax ("VAT") and any applicable withholding taxes, custom duties and other charges and fees, which shall be borne by the Customer.
Section 4: Payments
1. Except as expressly agreed otherwise in writing between the parties, all payments are due and payable without any deductions, setoff or counterclaims by the Customer immediately upon receipt of the invoice, but at the latest within 30 days of such receipt to Dedrone’s place of payment as specified by Dedrone to Customer from time to time by wire transfer or such other means as Dedrone may specify, at the Customer’s expense.
2. Dedrone reserves the right to charge Customer interest on any overdue payments at 1.5% per month (18% per year), or the maximum amount allowed by applicable law, whichever is less.
3. In the event of any payment default Dedrone shall be entitled to withdraw any allowances, discounts or other concessions granted to Customer and all outstanding demands shall become due immediately. Additionally, without limitation to Dedrone’s other rights and remedies, Dedrone may suspend Customer’s Software license and subscription services in accordance with the Terms of Service upon any payment default.
Section 5: Retention of title
1. To the extent permissible under applicable law, title to all Products shall pass to Customer upon Customer's payment in full for such Products and any other outstanding debts to Dedrone. If Dedrone may not retain title as provided in the previous sentence under applicable law, the Customer hereby grants Dedrone a security interest in all unpaid Products, in accordance with the Uniform Commercial Code or similar applicable laws of the applicable jurisdiction, for the full amount of all fees, charges and other payments still due Dedrone with respect to such Products, and interest thereon, and Customer agrees to execute and deliver all such documents as may be required to perfect such security interest.
2. The Customer is not entitled to mortgage or otherwise encumber the Products or to assign them as collateral. If a third party nevertheless acquires the foregoing or similar rights in the Products, the Customer hereby assigns all rights to the Products accruing to the Customer in such process to Dedrone. In the event that a garnishment, a seizure or any other court order has been issued with regard to the Products, the Customer shall immediately notify Dedrone thereof.
3. In the event of any breach of these Terms and Conditions by Customer including, without limitation, default in payment, Dedrone is entitled to immediately take possession of the Products.
Section 6: Delivery
1. All delivery dates are estimated only, however Dedrone shall make commercially reasonable efforts to meet all agreed delivery dates. All delivery dates are subject to Dedrone’s timely receipt of all necessary documents and materials by the Customer, as well as any required approvals, releases, payment and other obligations of the Customer.
2. Dedrone shall deliver the Products to the point of delivery in accordance with the delivery provisions in this Terms and Conditions or the applicable Order (hereinafter “Delivery”). Delivery shall be Ex Works (Incoterms 2016) Dedrone’s shipping point.
3. At the Customer’s written request, Dedrone will arrange for the packaging, shipment and/or insurance of the shipment against damage due to breakage, transport and fire of the Products. Save as explicitly agreed otherwise in writing, all costs for packing, shipment and/or insurance are Customer’s sole responsibility. With the exception of retour containers, specifically marked as such, Dedrone does not take back transport packaging or any other packaging.
4. In the event that Dedrone has reason to believe that Customer will be unable to make payments when due under these Terms and Conditions or an applicable Order, without prejudice to its other rights under this Agreement or applicable law, Dedrone may delay Delivery , until Customer has paid all such past due amounts or provided adequate collateral security for such payment obligations.
Section 7: Passing of Risks
Risk of loss or damage to the Products shall pass, and Dedrone's liability for Delivery shall cease, upon Delivery.
Section 8: Inspection and Acceptance of the Products; Warranty
1. Any returns under this paragraph must be made using the procedures in Section 8.3. Dedrone warrants to Customer that for one (1) year from the date of delivery of the applicable Product(s) to Customer, such Product(s) shall be substantially free of defects of materials and workmanship (“Limited Warranty”). Notwithstanding the foregoing, this limited warranty shall not apply to: (a) any Product that has been customized, altered or repaired by any person or entity other than personnel of Dedrone and/or any distributor of the Product licensed by Dedrone; (b) any Product that has been subjected to abuse, misuse, damage, neglect, or accident beyond Dedrone’s published limitations for the Product (including, without limitation, environmental conditions and power requirements); (c) any use or operation of the Product other than in accordance with Dedrone’s then-current published specifications and instructions for the Product; (d) breakdowns, fluctuation or interruptions in electric power or the telecommunications network, (e) any non-Dedrone products, even if packaged or sold with Dedrone Products, or (f) any non-conformities or defects notified by Customer to Dedrone after the expiration of the applicable warranty period for such Product.
2. With the sole exception of certain refunds for DOA Products addressed at the end of this paragraph, Customer’s sole and exclusive remedy and Dedrone’s (and its suppliers’ and licensors') sole and exclusive liability for a breach of the Limited Warranty shall be, at Dedrone’s sole discretion, commercially reasonable efforts to repair or replace the non-conforming. Repair or replacement may be made with a new or refurbished product or components, at Dedrone’s sole discretion. If the Product or a component within it is no longer available, Dedrone may, at its sole discretion, replace the Product with a similar product of similar function. Any Product that has been repaired or replaced under the Limited Warranty will be covered by the terms of the Limited Warranty for the longer of (a) ninety (90) days from the date of the delivery or the repaired Product or its replacement, or (b) the remainder of the original one-year Limited Warranty period. Additionally, if Customer initiates a return in accordance with Section 8.3 within 15 days of receipt of any Product(s) for material defects or failure of such Products to meet Dedrone’s specifications at the time of delivery (“DOA Products”), Dedrone may at its discretion issue a refund for such Products and any accompanying Software, provided, however, that this right of rejection shall not apply if such material defects or failures of Products arise from damages caused during shipping or by any third party.
3. If Customer wants to return the Product which Customer purchased from Dedrone under the Limited Warranty, Customer must notify Dedrone within the Limited Warranty period. To initiate a return, Customer must inform Dedrone of its decision within such period by contacting Dedrone at firstname.lastname@example.org and clearly stating details on where and when Customer purchased the Product, Customer’s reason for returning the Product and Customer’s name, mailing address, email address and daytime phone number. Dedrone customer service will provide Customer with a Return Materials Authorization ("RMA") that must be included with Customer’s return shipment to Dedrone such that Dedrone can identify Customer’s shipment. If Customer purchased the Product from somewhere other than Dedrone, Customer should contact Customer’s reseller.
To return a Product for replacement or repair under the Limited Warranty, Customer must return the applicable Product(s) with all included accessories (and any promotional merchandise supplied with the Product) with an RMA within the 14 days following the day on which Customer’s RMA was issued. Unless Dedrone determines the Product is covered by the Limited Warranty, Customer will be responsible for all costs associated with returning the Product to Dedrone (including uninstallation cost of shipping the Product back to Dedrone). Dedrone will, at its sole discretion, either repair or replace the Product or, solely with respect to DOA Products meeting the requirements set forth in Section 8.2, refund the price Customer paid for the Product and accompanying Software plus original delivery cost, less the value of any promotional merchandise or discounts Customer received. Dedrone will not issues any refunds for amounts paid for Products or Software except with respect to DOA Products.
4. Dedrone will have no warranty obligations with respect to a returned Product if it determines, in its reasonable discretion after examination of the returned Product, that the Product falls under an exclusion as defined above. Dedrone will bear all costs of return shipping to Customer and will reimburse any shipping costs incurred by Customer, except with respect to any Product falling into the exclusions defined above.
Section 9: Products – General information and range of use
1. The Customer acknowledges and agrees that Products cannot be properly operated without the Dedrone operating software (hereinafter “Software”). The Software and the updates and other services with regard to the Software are separate from the Products from the Dedrone tracker series, and require Customer to separately purchase a limited Software license, and all use of the Software is subject to the Terms of Service. Therefore, the Customer is aware and acknowledges that the Product’s lack of operational capability due to the lack of the required Software does not and shall not constitute a defect or other deficiency of the Products and that Dedrone is under no obligation or liability to provide the Software to Customer free of charge.
2. The Customer acknowledges and agrees that the Products are sold only for Customer’s use, and are not authorized for further distribution or resale. Without limiting the foregoing, Customer acknowledges and agrees that any future export of the Products shall be subject to applicable export control laws, and Dedrone has no liability in connection therewith. If the Products are to be used privately or commercially in countries other than the country originally designated by Customer to Dedrone, the Customer agrees that it shall comply with all applicable laws, rules and regulations and it shall obtain any necessary export and import permits in its sole responsibility and on its own account. Dedrone is under no obligation to support the Customer in obtaining such permits. To the extent Customer fails to comply with this Section 9.2, Customer shall indemnify, defend and hold harmless Dedrone from and against any liability arising therefrom, including reasonable attorneys’ fees, to the maximum extent permitted by applicable law.
3. The use of the Products is subject to all applicable laws, rules and regulations. It is the Customer’s sole responsibility to comply with all such applicable laws, rules and regulations and at all times to possess and strictly comply with all required licenses and other governmental or official approvals, permits or authorizations required under any applicable law. The Products are explicitly intended for non-military purposes only unless expressly agreed between Dedrone and the relevant authorities or authorised proxies of the military of the relevant country, and Customer agrees that it shall not make or authorize any military use of the Product.
4. The Products are designed, authorized or warranted to be suitable for use only according to the scope of Dedrone’s product description. Customer shall not modify, disassemble or reverse engineer the Products. The Customer agrees to adhere to any specifications and instructions issued by Dedrone from time to time with regard to the Products, and to at all times operate the Products in conformance with all safety guidelines communicated from Dedrone to Customer.
Section 10: Disclaimer; Limitations of Liability
1. EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN AN APPLICABLE LIMITED WARRANTY INCLUDED WITH A PRODUCT, As far as permitted by applicable law, the PRODUCTS ARE provided on an "as-is" basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose. CUSTOMER may not recover twice in respect of the same loss. CUSTOMER uses DEDRONE Products at its own discretion and risk.
2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) DEDRONE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF DEDRONE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) DEDRONE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO DEDRONE FOR THE APPLICABLE PRODUCTS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS THAT GIVE RISE TO THE APPLICABLE CLAIM. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. DEDRONE DISCLAIMS ALL LIABILITY OF ANY KIND OF DEDRONE’S LICENSORS AND SUPPLIERS.
Section 11: Intellectual property rights
1. The Products, including circuit diagrams, drawings, designs, descriptions and similar documents (hereinafter “Documents”), are subject to intellectual property rights, and as between Dedrone and Customer, Dedrone retains all right, title and interest in and to such intellectual property rights and no right, title or interest in such intellectual property rights is transferred hereby. The Customer is not permitted to change, cover or remove references to such rights on the products. Without Dedrone’s prior written consent the Documents may not be made available to third parties, and Customer may not reproduce or distribute the Documents in any fashion.
2. The Customer understands and agrees that the Products and Documents may be subject to the rights and licenses of third parties, such as the rights and licenses for components of other manufacturers which are contained in the Products.
3. Dedrone shall defend the Customer at Dedrone’s expense against all claims asserted against the Customer for an alleged infringement of third party’s intellectual property rights regarding the Products or Services provided by Dedrone to the extent Dedrone is found liable by a court of competent jurisdiction (hereinafter “Dedrone’s Infringement”) and reimburse the Customer for all reasonable costs and amounts of damages finally adjudicated, provided that (i) the Customer must notify promptly Dedrone of any such claims in writing, (ii) the Customer must furnish all information and support reasonably necessary for Dedrone to defend such claim, (iii) Dedrone shall retain its sole right to decide whether or not to defend or settle such claim, (iv) and the Customer shall refrain from confirming or acknowledging Dedrone’s Infringement to any third party.
4. In the event of Dedrone’s Infringement, Dedrone may, subject to the provisions in Section 10 and Section 11 of these Terms and Conditions, at its own discretion and its own expense, either procure the necessary rights for the Products in question, or modify or replace the respective Products in a way so that such Products or Services are no longer infringing. Dedrone obligations under Section 11.3 and 11.4 shall not apply if such infringement is based on a modification of the Products that were, either wholly or in part, not executed or authorized by Dedrone, or where such infringement arose because of the combination of the Products with any other products or materials not reasonably contemplated by the applicable Product documentation where, absent such combination, there would have been no infringement, or for any infringement resulting from a use of the Products for a purpose other than that intended under the terms of these Terms and Conditions.
Section 12: Data Protection
Section 13: Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Customer agrees to submit to the personal jurisdiction of the state and federal courts in or for the County of San Francisco, California for the purpose of litigating all such claims or disputes.
Section 14: Miscellaneous
1. Customer may not transfer or assign any rights or obligations under these Terms and Conditions or any Order, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Dedrone. Without limiting the foregoing, Customer shall provide Dedrone written notice in advance of any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to these Terms and Conditions or similar transaction, and Dedrone shall have the right to terminate these Terms and Conditions immediately upon receipt of such notice. These Terms and Conditions inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
2. A waiver of any provision of these Terms and Conditions will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of these Terms and Conditions, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
3. Dedrone may provide notifications to Customer as required by law or for marketing or other purposes via (at its option) email to the primary email associated with Customer’s Dedrone account, hard copy, or posting of such notice on the Dedrone website. Dedrone is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications.
4. If any part of these Terms and Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between Dedrone and Customer. The legality, validity or enforceability of the remainder of these Terms and Conditions will remain in full force and effect.
5. These Terms and Conditions constitute the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and terminates all other prior agreements, commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. These Terms and Conditions may not be modified or amended except by an instrument in writing executed by each of the parties. None of the provisions of these Terms and Conditions shall be deemed to have been waived by any act or acquiescence on the part of either party, their agents or employees, but may be waived only by an instrument in writing signed by each of the parties. No waiver of any provision of these Terms and Conditions on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion. Sections 4 and 5 (with respect to payment obligations arising prior to the effective date of expiration or termination), Section 10, Section 11, Section 13 and Section 14 will survive any termination of this Agreement.
6. Unless explicitly stated otherwise, in the event of any conflict between the provisions of any Dedrone-accepted Order and any document comprising this Agreement, the Parties agree the following order of priority: Dedrone-accepted Order (highest), the Terms and Conditions (lowest).