END-USER LICENSE AGREEMENT
This Agreement covers the software and services you license from SZ DJI Technology Co., Ltd. ("DJI") to perform 4G private server deployment. If you purchase or use the DJI software and services as an employee of or for the benefit of your company, you represent that you have the power and authority to accept this agreement on behalf of your company. Your company ("Customer") will be the licensee under this agreement. Please read the following terms carefully. By purchasing or using DJI software, you acknowledge that you have read, understood, and agree to be bound by the agreement.
Capitalized terms used herein shall have the meaning set forth in this Section 1 unless the context requires otherwise.
"Agreement" means this agreement, any appendix attached hereto and any document included by reference, as each may be amended from time to time in accordance with the terms of this Agreement.
"Confidential Information" means any information you receives under this Agreement which is not publicly available.
"Software" means a DJI software product you access, download, use or otherwise made available to you.
"Service" means the DJI 4G enhanced image transmission service deployed on Customer private servers.
"Documentation" means all supporting documents including instructions and manuals provided by DJI for you to use Licensed Software and deploy your
2. LICENSE GRANT AND CONDITIONS
2.1. License Grant. When you purchase a license upon its delivery you will have a nonexclusive, nontransferable, limited license to install and use Software and Documentation for your internal business purpose to deploy 4G transmission on private servers for the time period specified on each of your license. Software is provided in docker image form unless otherwise specified.
2.2. License Compliance. DJI reserves the right to embed a reporting mechanism in Software to determine unauthorized use of the licenses. The mechanism does not transmit technical or business data that customer processes with Software.
3. Customer Responsibilities
3.1. Customer will not cause or permit the transfer, publication or use of Software to or for the benefit of any third party without DJI's prior written consent.
3.2. Customer will not reverse engineer, decompile or otherwise attempt to discover the source code of Software or its license key. Customer will use Software provided in docker image form only for its authorized use and intended purposes. Customer will not otherwise modify, adapt, or merge Software. Customer will not use Software for the purpose of developing or enhancing any other software or product.
3.3. Customer is responsible for the security of Customer's system and data, including Products on Customer's systems. Customer will take commercially reasonable step to exclude malware, viruses, spyware and trojans.
4. FEES AND PAYMENT
4.1. The Fees for the Software and Service you may purchase under this agreement will be identified to you in each order. You agree to pay the Fees specified to you under each plan you have chosen.
4.2. All payments you make to DJI are non-refundable. You may not offset any amounts you believe DJI owes you against any payments you make to DJI under Agreement.
5.1. Maintenance Services. DJI will provide you with access to Documentation and will use commercially reasonable efforts to respond to your requests regarding the deployment and use of Software during DJI's normal business hours.
5.2. Software Updates. DJI will use commercially reasonable efforts to provide error corrections to the Software, as well as minor improvements to the Software, as such corrections and improvements become generally available. Any other upgrades or enhancements to the Software not made available by DJI as part of Maintenance Service may be subject to additional charges.
5.3. Conditions. In order to receive Maintenance Services for Software, all of the following conditions must be met:
(a)You must provide DJI with access to the information and system facilities reasonable necessary to provide the Maintenance Services;
(b)You must follow Documentation, other operating instructions and direction provided by DJI to deploy Software and resolve technical problems; and
(c)Your must notify DJI of any error or other problem in Software and Service.
5.4. Exclusions. DJI will have no obligation to provide Maintenance Service for any Software that is damaged, modified (by anyone other than DJI), incorporated into other software, or for any version of a software other than the latest and immediately preceding version; or for any problems caused by your negligence, abuse, misuse or any action in violation of Agreement.
6.1. Each party agrees to abide by the following confidentiality obligations with respect to the other party's Confidential Information:
(a)do not disclose it to any third party
(b)do not use it for any reason other than to exercise its rights and perform its obligation under Agreement; and
(c)protect it from unauthorized dissemination in the same manner as that party protects its own Confidential Information, and in any event with reasonable precautions.
6.2. In addition to your general obligations of confidentiality regarding Software and Documentation, you must take reasonable efforts to prevent any unauthorized access to or use of Confidential Information.
This is the only warranty DJI provides for the Software, Documentation and Service. Except for this warranty, all Software, Documentation and Service are provided "AS IS". DJI disclaims all other warranties (express, implied, or statutory), including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement and any warranties arising from a course of dealing or usage of trade.
8. INDEMNIFICATION AND LIABILITY
8.1. You will indemnify, hold harmless, and defend DJI and its managers, officers, directors, employees, agents, affiliates, successors against any and all losses, damages, liabilities, claims, actions, judgments or expenses of whatever kind, including professional fees and attorney's fees (collectively, the "Liability"), arising out of or attributable to any breach of this Agreement by Customer.
8.2. Any failure of the Customer to perform the obligations under this Agreement is deemed as a breach of this Agreement. In the event of a breach by Customer, DJI is entitled to:
(a)liquidated damages calculated as an amount equaling ten times of fees payed under this Agreement or ten times of the loss incurred to DJI whichever is higher; and
(b)suspend the license grant to Customer.
9.1.1. Licenses for a limited term terminate upon expiration of the term. DJI may immediately terminate this Agreement or any Software license granted or Services provided under this Agreement for reasonable cause, including, without limitation, your unauthorized installation, deployment or use of Software.
9.1.2. Upon termination of this Agreement, the licenses granted and Services provided hereunder automatically terminate. Upon termination of any license, you will immediately remove and destroy all copies of Software, Documentation and other DJI Confidential Information, and certify such removal and destruction in writing to DJI upon request. No refund or credit will be given as a result of termination under Section 8.
10. GOVERNING LAW AND DISPUTE RESOLUTION
You agree that any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC") under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law, excluding its conflict of law provisions. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three (3) in accordance with such rules. The arbitration proceedings shall be conducted in English. Any awards thereof shall be final and binding upon the applicable parties.
Either Party must not assign any of its rights or delegate any of its obligations without the prior written consent of the other Party.
No failure or delay by either Party in exercising any right, power or privilege can operate as a waiver thereof, nor can any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement is not a waiver of such Party's right to demand strict compliance in the future, nor can the same be construed as a novation of this Agreement.
If any term or provision of this Agreement is invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability does not affect the remaining term or provision of this Agreement. In such case, this Agreement shall be deemed amended by modifying such term or provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting it with another term or provision that is valid, legal and enforceable so as to materially effectuate the Parties' intent.
This Agreement may only be modified by a written amendment signed by an authorized executive of DJI.
11.5. ENTIRE AGREEMENT
This Agreement, together with any other documents incorporated herein by reference and all related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained in this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.