Terms of Service (EULA)
Welcome to Applied Particle Technology. Please read these Terms of Service carefully because they govern your use of our products and services. The Customer, together with Applied Particle Technology, are referred to as the “Parties”.
Definitions
1.1 “Account” means the accounts Customer and its employees and contractors can create, via the Hosted Services, to access Customer Data.
1.2 “Affiliates” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, theCustomer.
1.3 “Apps” means software applications for smartphones and tablets distributed by Applied Particle Technology.
1.5 “Customer Data” means data captured by Customer’s use of the Hardware, data entered by Customer into Apps and Hosted Software, and the analysis, reports, and alerts generated by the Products containing such data. For the avoidance of doubt, Customer Data does not include any Applied Particle Technology Software.
1.6 “Firmware” means software embedded in or otherwise running on theHardware.
1.7 “Hardware” means the Applied Particle Technology hardware devices suchas gateways, cameras, sensors, and accessories, that Customer have purchased, received for a free trial, or have otherwise acquired via an Order Form.
1.8 “Hosted Software” means Applied Particle Technology’s web-based software platform, including the interface accessed online at appliedparticle.io or appliedparticletechnology.com.
1.9 “Order Form” means the quote describing the purchase of Applied ParticleTechnology Products and licenses issued by Applied Particle Technology.
1.10 “Products” means the Hardware, Firmware, Services, and Apps.
1.11 “Refund” means an amount refunded to the Customer pursuant to the termsof this Agreement determined based on the original purchase price specified in an Order Form, and prorated to the time between (1) receipt by Applied Particle Technology ofany notice of termination issued pursuant to this Agreement and (2) the license termination date specified in an Order Form. For the avoidance of doubt, a Refund may only be issued as expressly provided hereunder.
1.12 “Applied Particle Technology Software” means the Apps, Firmware, andHosted Software, and any improvements, modifications, patches, updates, andupgrades thereto that Applied Particle Technology develops or provides in connection with this Agreement.
1.13 “Services” means the Hosted Software and Support Services that areincluded with Applied Particle Technology products.
1.14 “Support Services” means the customer support services described at (www.appliedparticletechnology.com/support), and any additional product training, technical services, product documentation available through the Applied Particle Technology website, or other professional services included in Customer’s purchase.
1.15 “Terms” means the terms contained in this Agreement.
2. Agreement to Terms. By executing an Order Form that references this Agreement, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Products. If you are accessing and using the Products on behalf of a company (such as your employer) or other legal entity which is our Customer, you represent and warrant that you have the authority to bind that company or other legalentity to these Terms. References to “you” and “your” in these Terms refer to thatcompany or other legal entity, our Customer. You may not use the Services if you areour direct competitor, as determined in our sole discretion, except with our prior written consent.
3. Changes to Terms or Services. Intentionally Omitted
4. License. Subject to the terms and conditions specified in this Agreement oran applicable Order Form, Applied Particle Technology grants Customer a non sublicensable, non-exclusive, non-transferable license to use and access the Applied Particle Technology Software, until the license term on an applicable Order Form expiresor the earlier termination of this Agreement. The Support Services and the HostedSoftware SLA at https://www.appliedparticle.io are included as part of the license grantand contingent upon a valid license. The Firmware license for each item of Hardwarethat the Customer purchases is contingent upon Customer purchasing and maintaininga valid license to the Applied Particle Technology Software.
5. License Restrictions. Customer agrees not to do any of the following without Applied Particle Technology’s express prior written consent: (i) resell, white label, orreproduce the Applied Particle Technology Software or any individual element within the Applied Particle Technology Software, Applied Particle Technology’s name, any Applied Particle Technology trademark, logo or other proprietary information, or the layout and design of any part of the Applied Particle Technology Software; (ii) access, tamper with, or use non-public areas of the Applied Particle Technology Software, Applied Particle Technology’s computer systems, or the technical delivery systems of Applied Particle Technology’s providers; (iii) attempt to probe, scan or test the vulnerability of any Applied Particle Technology system or network or breach any security or authentication;(iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Applied Particle Technology or any of AppliedParticle Technology’s providers or any other third party (including another user) toprotect the Applied Particle Technology Software; (v) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the Firmware to any third party; (vi) unlesspermitted under applicable law, disassemble, decompile or reverse engineer the Applied Particle Technology Software, in whole or in part, or permit or authorize a third party todo so; (vii) hack into, disable, disrupt, or access without authorization any part of the Services, or attempt any of the foregoing; (viii) attempt to decipher, decompile, disassemble or reverse engineer any aspect of the Applied Particle TechnologySoftware; (ix) impersonate or misrepresent an affiliation with any person or entity; (x)use or access the Applied Particle Technology Software for any competitive purpose; (xi)perform benchmark testing on the Applied Particle Technology Software; (xii) violateany applicable law or regulation; or (xiii) encourage or enable any other individual to doany of the foregoing. Applied Particle Technology has the right to investigate violations of these Terms or conduct that affects the Applied Particle Technology Software.Applied Particle Technology may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
6. Hardware Installation. Customer is responsible for installation of the Hardware. Depending on the Customer’s intended use of the Products, Customer mayrequire professional installation of the Hardware. If Customer is unable to install the Hardware, or if Customer is uncertain that Customer has the requisite skills and understanding, Customer agrees to consult with a qualified installer. Improper installation of the Hardware can lead to damage of the equipment into which Customer are installing or dangerous or life-threatening conditions, which can cause property damage, bodily injury, or death.
7. Product Updates. Applied Particle Technology continuously improves the Products, and may from time to time (i) update the Applied Particle TechnologySoftware and cause Firmware updates to be automatically installed onto CustomerApplied Particle Technology Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models. Applied Particle Technology may change any part of the Products, at any time and without notice with or without Customer’s approval, provided that the change does not materially and negatively impact the performance of the Products. If we discontinue the Products or Services you have ordered from us without replacing them with an updated version or newer model, you may request a Refund. Updates or upgrades may include security or bug fixes, performance enhancements, ornew functionality, and may be issued with or without prior notification to Customer provided that such updates or upgrades do not materially and negatively impact the performance of the Products. Customer hereby consents to such automatic updates.
8. Payment, Shipping, and Delivery. The payment and billing terms are setforth in the Order Form. Customer is responsible for all payments of applicable taxes, however designated or incurred under this Agreement, and Customer shall reimburse Applied Particle Technology for any taxes paid or payable on behalf of Customer. All shipments are FOB origin, freight pre-paid and added to the Customer’s invoice.
9. Accounts. Customer shall be solely responsible for administering and protecting Accounts. Customer agrees to provide access to the Applied Particle Technology Software only to Authorized Users, and to require such Authorized Users to keep Account login information, including user names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer is solely responsible for monitoring and controlling access to the Applied Particle Technology Software and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify Applied Particle Technology andde-activate such Account or change the Account’s login information.
10. Customer Data. Ownership and Usage. Customer Data is accessible via the Applied ParticleTechnology Software. Customer owns all Customer Data, and Applied Particle Technology will keep Customer Data confidential. Customer hereby grants to Applied Particle Technology a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating and providing the Services. Applied Particle Technology will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Applied Particle Technology willnot share Customer Data without Customer consent, except when the release ofdata is compelled by law. Applied Particle Technology may collect analytics, statistics or other data related to the Customer Data and Customer’s use of the Applied Particle Technology Software (i) in order to provide the Applied Particle Technology Software to Customer; (ii) for statistical use or to provide to thirdparty services providing or improving the Applied Particle Technology Software (provided that such data is not personally identifiable or discloses the locations ofthe Customer); or (iii) to monitor, analyze, develop upon, maintain, and improve the Applied Particle Technology Software. Customer may export Customer Data at any time through the export features in the Applied Particle Technology dashboard or via the Applied Particle Technology API. Customer acknowledges that some information may not be exportable via the Applied Particle Technology dashboard or the API. If this Agreement terminates or expires and Customer does not renew, Customer Data may be immediately deleted.
10.2 Customer Data Representation and Warranty. Customer represents and warrant that: (i) Customer will obtain all rights and provide any disclosures to or obtain any consents from any employee or third party that are necessary for Applied Particle Technology to collect, use, and share Customer Data in accordance with these Termsand (ii) no Customer Data infringes upon or violates any other party’s intellectual property rights, privacy, publicity or other proprietary rights. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS APPLIED PARTICLE TECHNOLOGY AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL PROCEEDING TO THE EXTENT ARISING FROM CUSTOMER’S BREACH OF THIS PROVISION.
10.3 Confidentiality. Applied Particle Technology agrees not to share Customer Data. Additionally, Applied Particle Technology agrees not to share data or information that Customer provides to Applied Particle Technology for the purpose of evaluating, procuring, or configuring the Services. Examples of such information include exposure data, tasks, activities, user names, or similar information. However, Applied Particle Technology may disclose this information if compelled by law to do so.
11. Proprietary Rights.
11.1 Applied Particle Technology Software. Applied Particle Technology and its licensors exclusively own all right, title and interest in and to the Applied Particle Technology Software that Customer accesses or licenses, including all associated intellectual property rights. Customer acknowledge that the Applied Particle Technology Software is protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in oraccompanying the Services. Customer shall and hereby does irrevocably transfer and assign to Applied Particle Technology all right, title, and interest it may have in the Applied Particle Technology Software to Applied Particle Technology and Applied Particle Technology here by accepts such transfer. No ownership rights are being conveyed to Customer under this Agreement. Except for the express rights granted here in, Applied Particle Technology does not grant any other licenses or access rights, whether expressor implied, to any other Applied Particle Technology software, services, technology orintellectual property rights. APPLIED PARTICLE TECHNOLOGY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS CUSTOMER AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES INCONNECTION WITH ANY THIRD-PARTY LEGAL PROCEEDING TO THE EXTENT ARISINGFROM APPLIED PARTICLE TECHNOLOGY’S BREACH OF THIS PROVISION. The foregoing in demnification obligations are contingent upon Applied Particle Technology receiving(i) prompt written notice of any such claim; (ii) the right to control the defense and settlement of any such claim (provided that Applied Particle Technology may not settle any such claim without Customer’s prior written consent, not to be un reasonably with held); and (iii) reasonable cooperation from Customer in connection with such claim.
11.2 Firmware. The Firmware is licensed, not sold. Applied Particle Technology retains ownership of the copy of the Firmware itself, including all intellectual property rights therein. The Firmware is protected by United States copyright law and international treaties. Applied Particle Technology reserves all rights in the Firmware notexpressly granted to Customer in these Terms. Customer acknowledges and agrees that portions of the Firmware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Applied Particle Technology and its licensors.
12. Wifi, Network, and Cellular Data Usage: Customer is responsible for providing necessary Network and/or Data Infrastructure for the APT Monitors to connect to the APT Cloud Platform. Data usage above the monthly threshold may result in the reduction of connection speeds, the restriction of connectivity, the interruption of connectivity, or some combination there of. Restriction or interruption of connectivity will not impact the function of the monitor. Customer may track data usage from within the Settings section of the Applied Particle Technology dashboard.
13. Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. Applied Particle Technology provides these links only as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. Customer acknowledges sole responsibility for and assumes all risk arising from its useof any third-party websites or resources.
14. Publicity. Applied Particle Technology will not use Customer’s name, trademarks, or logos in any way without Customer’s prior consent.
15. Term. The term of this Agreement begins upon the Effective Date and shall continue until the expiration of the last active Order Form where the license period endsor until otherwise terminated earlier as provided here under.
15.1 Termination. Each party may terminate this Agreement and any Order Form,at any time upon thirty (30) days’ notice in the event the other party breaches this Agreement and such breach remains uncured during such thirty (30) day notice period.If you terminate this Agreement or any Order Form due to our breach of these Terms, then we will provide you with a refund for the pro-rated value remaining on your prepaid license in your purchase agreement.
15.2 Effect of Termination. Upon any termination, the following Sections of theseTerms will survive: 5 (Restrictions), 8 (Payment), 10 (Customer Data), 11 (Proprietary Rights), 15 (Term) , 16 (Warranty Disclaimers), 17 (Limitation of Liability), 18 (Dispute Resolution), 19 (Governing Law), and 20 (General Terms). At the Customer’s request,and subject to Applied Particle Technology’s data retention and backup policies, Applied Particle Technology shall delete and remove any Customer Data on the Hosted Services.
16. Warranty; Disclaimers.
Applied Particle Technology represents and warrants to Customer that the Services will perform substantially in conformance with the Service description in the order for or Proposal for a period of thirty (30) calendar days from the date Customer is first permitted to access and use the Services. Customer's sole and exclusive remedy, and Applied Particle Technologies sole and exclusive liability, for any breach of this warranty, will be, at Customer’s discretion, to either remedy the defect or be refunded the applicable fees paid by Customer for the Services, provided that Customer promptly notifies Applied Particle Technology in writing of any alleged breach of this warranty within such thirty (30) calendar day period. Applied Particle Technology represents and warrants that Customer’s use of the software in accordance with the Agreement will notviolate any third party intellectual property rights or third party contracts by which Applied Particle Technology is bound. EXCEPT AS SET FORTH HEREIN, THE SERVICESARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, APPLIED PARTICLE TECHNOLOGY EXPLICITLY DISCLAIMS ANY WARRANTIESOF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANDANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Inaddition, Applied Particle Technology makes no warranty that the Services will meet Customer’s requirements or be available on an uninterrupted, secure, or error-freebasis, and Applied Particle Technology makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any analytics or Customer Data.
17. Limitation of Liability.
17.1 No Consequential Damages. NEITHER APPLIED PARTICLE TECHNOLOGY NOR CUSTOMER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, ORDELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATAOR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE ORTHE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANYOTHER LEGAL THEORY, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HERE IN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOMEJURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOTAPPLY.
17.2 Cap. EXCEPT AS TO ANY EXPRESS INDEMNIFICATION OBLIGATION SET FORTHHEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR INCONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS CUSTOMER HAS PAID TO APPLIED PARTICLE TECHNOLOGY HERE UNDER The limitations set out in this clause 17.2 shall not apply to Applied Particle Technologies liability for damages arising from (i) breach of confidentiality, privacy and security obligations; (ii) claims regarding intellectual property infringement, personal injury or property damages, iii) Applied Particle Technology’s gross negligence and willful misconduct; and (iv) Applied Particle Technology’s indemnification obligations.
17.3 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APPLIED PARTICLE TECHNOLOGY AND CUSTOMER.
18. Dispute Resolution. INTENTIONALLY OMITTED
19. Governing Law. This Agreement and any action related there to will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
20. General Terms. These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between Applied Particle Technology and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Applied Particle Technology and you regarding the Services, however if an Order Form differs from these Terms then the terms of the Order Form control over these Terms. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid orunen forceable, that provision will be enforced to the maximum extent permissible andthe other provisions of these Terms will remain in full force and effect. Either Party maynot assign or transfer these Terms, by operation of law or otherwise, without the other Party’s prior written consent, except in the case of assignment to Affiliates or a merger, acquisition, or sale of all or substantially all assets of the assigning Party’s company Subject to the foregoing, these Terms will bind and inure to the benefit of the parties,their successors and permitted assigns. Any notices or other communications provided by Applied Particle Technology under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; (ii) by posting to Applied Particle Technology’s website; or (iii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.Either Party’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of both parties. Except as expressly set forth in these Terms, the exercise by either Party of anyof its remedies under these Terms will be without prejudice to its other remedies underthese Terms or otherwise.
21. Contact Information. If you have any questions about these Terms or the Products, please contact Applied Particle Technology at sales@appliedparticletechnology.com