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Terms of Use Agreement

Last updated: March 17, 2021

PLEASE READ THIS TERMS OF USE AGREEMENT ("TERMS OF USE") CAREFULLY. BY CLICKING THE "ACCEPT" BUTTON OR ACCESSING OR USING THE PARTICLE PLATFORM (AS DEFINED BELOW) AND/OR CLICKING "I ACCEPT", YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PARTICLE INDUSTRIES, INC. ("PARTICLE OR WE"), AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT AND, IF ON BEHALF OF AN ENTITY, TO BIND THAT ENTITY TO THESE TERMS OF USE. THE TERM YOU REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN THE REGISTRATION PROCESS IS COMPLETED. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS TERMS OF USE, YOU MUST NOT ACCESS OR USE THE PARTICLE PLATFORM. Particle and You may be referred to individually as a Party and collectively as the "Parties".

PLEASE NOTE THAT THESE TERMS OF USE ARE SUBJECT TO CHANGE BY PARTICLE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Particle will make a new copy of these Terms of Use available at: www.particle.io/legal/terms-of-service (the "Website"). We will also update the "Last Updated Date" at the top of these Terms of Use. If we make any material changes, and you have registered with us to create a Self-Service Account (as defined in Section 1.2.1, below), we will also send an email to you at the last email address you rpovdedprovided to us pursuant to these Terms of Use. Any changes to these Terms of Use will be effective immediately for new users of the Particle Platform and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. Particle may require You to provide consent to the updated Terms of Use in a specified manner for further use of the Particle Platform to be permitted. If You do not agree to any change(s) after they are posted or otherwise notified to You, you should stop using the Particle Platform. Otherwise, Your continued use of the Particle Platform constitutes Your acceptance of such change(s).

Your use of certain services (each a "Supplemental Service" ) may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in these Terms of Use or will be presented to You for your acceptance when you sign up to use the Supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the Supplemental Service. These Terms of Use and any applicable Supplemental Terms are referred to herein as the "Agreement".

1. OVERVIEW

1.1 Our Service. Particle provides an integrated Internet-of-Things ("IoT") solution, enabling businesses to quickly build, connect and manage their internet-enabled products and services. Particle's offering (the "Particle IoT Solution" ) consists of one or more of the following:

  • A proprietary cloud-based infrastructure and device integration system, including fleet management, data routing, and over-the-air software updates (the "Particle Platform")
  • Hardware products that are sold by Particle and have been provisioned to access the Particle Platform (each, a "Device") using Particle's proprietary system firmware (the "Particle Firmware" )
  • Access to third party cellular service, where applicable ("Cellular Service")

Your access to the Particle Platform is governed by the Agreement and is limited with respect to the following metrics:

  • "Metered Devices", which are Devices (a) that, with respect to Sandbox Accounts, are claimed by You, or (b) that, with respect to Growth Accounts, are claimed by You and have connected to the Particle Platform at least once and, for cellular and asset tracker Devices, have activated SIMs.
  • "Data Operations", which are actions executed on Your data payload. Such actions, as well as actions that are not considered to be Data Operations are described at the "Particle Pricing Page" (as defined below).
  • "Cellular Service Allowance" is the monthly allowance of cellular data transmissions through the Cellular Service available to the Self-Service Account.

The "Particle Pricing Page" set forth at www.particle.io/pricing sets forth the current metrics and pricing with respect to Self-Service Accounts, and may be updated from time to time to reflect the addition of new features and functionality and changes in Particle's business and pricing model.

1.2 Accounts.

1.2.1 Sandbox and Growth Accounts. In order to use the Particle Platform under these Terms of Use, You must register for a Self-Service Account with Particle (a "Self-Service Account"). We offer two types of Self-Service Accounts: a free version ("Sandbox Account") and a paid version ("Growth Account"). Users with Sandbox Accounts and Growth Accounts are able to use the Particle Platform on a limited basis, as the amount of Metered Devices that may access the Particle Platform, the number of Data Operations that may be performed and the Cellular Service Allowance are limited as set forth on the Particle Pricing Page.

1.2.2 Registration Information. You represent and warrant that: (i) all required registration information You submit is truthful and accurate; (ii) You will maintain the accuracy of such information; and (iii) You will not register for more than a single Self-Service Account, except that You are permitted to retain a single Sandbox Account if You create a Growth Account or an Enterprise Account. Particle may suspend or terminate Your Self-Service Account if You breach any of the terms of this Agreement. You are responsible for maintaining the confidentiality of Your Self-Service Account login information and are fully responsible for all activities that occur under Your Self-Service Account. You agree to immediately notify Particle of any unauthorized use, or suspected unauthorized use, of Your Self-Service Account, or any other breach of security. Particle will not be liable for any loss or damage arising from Your failure to comply with the above requirements.

2. LICENSED USES AND RESTRICTIONS

2.1 Subscription Term. Particle hereby grants You a non-exclusive, non-transferable right to access the Particle Platform in connection with Your use of Devices as part of the Particle IoT solution during the Subscription Term (as defined below), in each case subject to payment of any applicable Subscription Fee (as defined below) and Your compliance with any usage metrics and limitations and any restrictions set forth in this Agreement, including as provided in Section 2.7.

2.2 Provision of Service. Particle will provide You with access to the Particle Platform, including certain tools, availability of licenses to its application programming interfaces ( "APIs" )and software development kits, access codes, connectivity standards, protocols and relevant procedures (collectively, the "Particle Platform Guides" ) to allow You to access and use the Particle Platform as described in this Agreement. The Particle Platform Guides also include certain terms relating to the Cellular Services made available by the applicable broadband and telecommunications providers ( "Cellular Terms" ). You will integrate with and use the Particle Platform in accordance with the Particle Platform Guides, as updated by Particle and its third-party service providers from time to time. Particle may take reasonable actions to limit the impact of any failure by You to comply with the Particle Platform Guides. Particle will not be responsible for any delay, limitations or Particle Platform performance issues resulting from Your failure to comply with the Particle Platform Guides.

2.3 Data. As between the parties, You own the data and any other content transmitted and processed through Your Self-Service Account ("Your Data"). Particle will process Your Data only as described in this Agreement and as necessary to provide the Particle Platform, and will maintain appropriate administrative, technical and physical security measures to protect Your Data against unauthorized access, disclosure and loss. You are solely responsible for creating backup copies of any of Your Data at Your sole expense. Notwithstanding any provision in this Agreement to the contrary, You agree that Particle may use Service Data in connection with the development, maintenance, improvement and provision of any of Particle's service offerings."Service Data" means any non-personal operational data derived by or on behalf of Particle based on the use of the Devices and Particle Platform under Your Self-Service Account.

2.4 Usage Limitations. You may not perform more than the number of Data Operations per month, exceed the monthly Cellular Service Allowance or use the Particle Platform in connection with more Metered Devices than permitted for Your type of Self-Service Account, as set forth on the Particle Pricing Page. Particle may utilize technical measures to prevent over-usage and stop access to the Particle Platform after any usage limitations are exceeded or may suspend Your access to the Particle Platform, in each case with or without notice to You.

2.5 Legal Compliance. You will comply with all laws, rules and regulations ( "Applicable Laws" ) in any territory in which You offer, sell distribute or otherwise provide use of any product or service that incorporates any Devices or accesses the Particle Platform (each a "Product" ) in connection with Your activities hereunder and the provision and use of Your Products. If applicable, You will collect, process and store data in accordance with the terms of Your privacy policy and ensure that Your privacy policy is readily accessible to users and provides accurate disclosures concerning Your data practices. In addition, You will prominently display and comply with a privacy policy on Your Products that includes a full, accurate and clear disclosure regarding Particle's collection, use and distribution of personal information collected via the Particle Platform in accordance with our Privacy Policy, available at www.particle.io/legal/privacy. You will not permit any other party to use the Particle Platform to harvest, collect, gather or assemble information or data regarding other Particle subscribers without their consent. You are solely responsible for obtaining any consents or registrations required in connection with the activities described in this Agreement, and for verifying that Your use of the Devices and Particle Platform is in compliance with Applicable Laws in any territory in which You offer, sell distribute or otherwise provide use of any Product. You are solely responsible for the performance of Your obligations under any end-user, reseller or other third-party agreements relating to the offering, sale, distribution and use of Products.

2.6 Access to Service. You will make the Particle Platform available only to those affiliates, employees, contractors and agents who have a legitimate reason to access and use the Particle Platform solely in connection with Your activities under this Agreement. You will not interfere with the integrity or performance of the Particle Platform, including circumvention of any access or use restrictions or use of the Particle Platform through connection by any device or hardware other than those Devices made available to You by Particle. You will respond immediately to any reasonable request by Particle in the event of any actual or anticipated interference with the Particle Platform by You, Your Products or Your users. You will be solely responsible for all use of the Particle Platform under Your Self-Service Account, including all acts and omissions of Your users and the users of Products that you deploy. You will notify Particle immediately if You become aware of any unauthorized use or other compromise of Your Self-Service Account.

2.7 Additional Use Restrictions. You will not resell or otherwise distribute any standalone Devices. You will not distribute, resell, lease, license or otherwise provide access to the Particle Platform to third parties. You will not reverse engineer, disassemble or decompile any component of the Devices or Particle Platform. You will not use or permit others to use the Particle Platform in connection with any of the following unauthorized applications: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; enhanced 911 or E911 emergency calling system; commission of intentional physical harm to persons or animals (whether or not fatal); non-consensual surveillance; facilitation of incarceration or criminal investigation; transport of weapons of any type; facilitation of sales or distribution of DEA Schedule 1 substances or substances known to cause harm without known benefits; or uses that are criminal or otherwise unlawful.

3. PRODUCTS

3.1 Product Policy. You are solely responsible and liable for Your Products, and for supporting Your Products. You represent and warrant that Your Products will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vii) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to Particle or its licensors, licensees, affiliates and partners.

3.2 Refusal of Products. Particle will have the right, in its sole discretion, to refuse to permit your use of the Particle Platform with a particular Product. Unless Particle states otherwise, such rejection will not terminate this Agreement with respect to any other Product. Particle will have no liability to You for such refusal.

3.3 Monitoring. You agree to provide us with access to Your Products and other materials related to Your use of the Particle Platform as reasonably requested by us to verify Your compliance with this Agreement.

4. OWNERSHIP

4.1 Ownership. As between You and Particle, Particle owns all right, title and interest in and to the Particle Platform. Except for the rights granted in Section 2.1, this Agreement grants You no right, title, or interest in any intellectual property owned or licensed by us, including the Particle Platform and the intellectual property in and related to Devices. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright and intellectual property notices and restrictions contained in this Agreement.

5. RELATIONSHIP

5.1 Marketing. We may publicly refer to you, orally or in writing, as a Particle Platform licensee of Particle (including in a directory of our developers) and we may publish your name and logo on the Particle website or promotional materials without prior written consent. You grant us all necessary rights and licenses to do so.

5.2 Support. We may provide you with support, upgrades, or modifications for the Particle Platform in accordance with our service level agreement and in the manner set forth on the Particle Pricing Page. In the event we provide any support, it will be considered part of the Particle Platform for purposes of Section 9 (Disclaimer and Limitation of Liability) and Section 10 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to you. You understand and agree that you are solely responsible for providing user support and any other technical assistance for Your Products. We may redirect users and potential users of Your Products to your email address on file for purposes of answering general Product inquiries and support questions.

5.3 Independent Development; Feedback. You acknowledge and agree that Particle may be independently creating applications, content and other products and services that may be similar to or competitive with Your Products and content, and nothing in this Agreement will be construed as restricting or preventing Particle from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to our Particle Platform or Devices, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account.

6. FEES AND PAYMENT TERMS

6.1 Payment. You agree to pay all fees or charges to your Self-Service Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable, as set forth on the Particle Pricing Page. You must provide Particle with valid credit card (Visa, MasterCard, or any other issuer accepted by us) ("Payment Provider"). Your Payment Provider agreement governs use of the designated credit card account, and You must refer to that agreement and not the terms of this Agreement to determine Your rights and responsibilities with respect to such payment. By providing Particle with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to Particle hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Particle Pricing Page or by e-mail delivery to you.

6.2 Subscription Fees and Automatic Renewal. All subscriptions to access the Particle Platform are made on a monthly basis (each a "Subscription Term" ). If you select a Growth Account, you will be charged a monthly subscription fee to access the Particle Platform, as set forth on the Particle Pricing Page ( "Subscription Fee" ). The initial monthly Subscription Fee will be charged at the time you create your Self-Service Account. Your subscription will automatically renew for additional one (1) month periods until terminated as provided under Section 7. The Subscription Fee will be charged monthly, in advance, at Particle's then-current price for such subscription. All Subscription Fees are non-refundable. In the event that You wish to increase the number of Data Operations or Metered Devices beyond the maximum number of Data Operations, Metered Devices or Cellular Service Allowance available for your Self-Service Account or for which the Subscription Fee has been paid, you shall be required to pay additional fees associated with the increased number of Data Operations, Metered Devices or Cellular Service Allowance, as provided in the Particle Pricing Page.

6.3 Taxes. Particle's fees are net of any applicable sales or use tax ("Sales Tax"). If any payment made under this Agreement is subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Particle, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.

7. TERM AND TERMINATION

7.1 Term. This Agreement will be effective upon the date on which You accept this Agreement and will continue until terminated as provided in this Section 7.

7.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the Particle Platform, or any aspect of Your use of and access to the Particle Platform, at any time without notice to You and without incurring any liability to You. We may also impose limits on certain features and services or restrict your access to part or all of the Particle Platform without notice to You and without incurring any liability to You. Furthermore, Particle may limit, suspend, or terminate Your access to the Particle Platform (and your rights under this Agreement) at any time. This Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by You.

7.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing Your use of the Particle Platform, and, with respect to Growth Accounts, providing at least thirty (30) days prior written notice to Particle.

7.4. Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will be due; and (iii) each Party will promptly return to the other Party all Confidential Information of such Party in its possession, custody, or control. Neither Party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), Particle's sole obligation as it relates to copies of, or references or links to, your Product will be to, upon written request from you, make reasonable efforts, as determined in its sole discretion, to remove all such references and links.

7.5 Deletion of Data. Particle will use reasonable efforts to delete your salted and hashed password, name, credit card information and all related information associated with or inside your Self-Service Account (or any part thereof), excluding data related to past transactions, upon termination of this Agreement or upon Your request.

7.6 Survival. Sections 2.3, 2.7, 3.1, 4.1, 5.3, 7.4, 7.5, 7.6, and 8 through 11 will survive any termination of this Agreement.

8. CONFIDENTIALITY

8.1 Ownership. Confidential Information means all written and oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information. All Confidential Information is proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a Party's obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the disclosing Party as soon as possible.

8.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving Party; (ii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving Party's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving Party without use or reference to the Confidential Information of the disclosing Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing party to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party receiving Party will, to the extent lawfully permitted, first have given reasonable written notice to the disclosing Party, so that the disclosing Party may seek a protective order or other appropriate relief; or (2) to establish a Party's rights under this Agreement.

9. DISCLAIMER AND LIMITATION OF LIABILITY

9.1. Disclaimer. THE PARTICLE PLATFORM IS PROVIDED "AS IS", WHERE IS, WITH ALL FAULTS AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. PARTICLE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/ NON-INFRINGEMENT. SOME ASPECTS OF THE PARTICLE PLATFORM ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED. PARTICLES DOES NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE PARTICLE PLATFORM IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, OR COMPLETE. PARTICLE IS NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PARTICLE PLATFORM, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE PARTICLE PLATFORM IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE PARTICLE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE PARTICLE PLATFORM WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.

9.2 Limitation of Liability. PARTICLE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE Particle Platform. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL PARTICLE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE PARTICLE PLATFORM EXCEED THE LESSER OF (A) AMOUNTS PAID BY YOU TO PARTICLE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER, AND (B) $2,000. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.

10. INDEMNIFICATION

10.1 By You. You will defend, indemnify and hold harmless Particle and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Product, your use of the Particle Platform, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.

10.2 By Particle. Particle will, at its expense, defend or, at its option, settle any claim, action or allegation brought against any user with a Growth Account by a third party alleging that the Particle Platform infringes any copyright, United States patent or misappropriates a trade secret of that third party and will pay any final judgments assessed thereon or any settlements to which Particle agrees. You will give prompt written notice to us of such a claim and You will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our discretion. You will give such assistance and information as Particle may reasonably require to settle or to oppose such claims. This Section 10.2 provides your exclusive remedy for any infringement claims or remedies. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the Particle Platform in a manner other than as specified in this Agreement, (ii) any use of the Particle Platform in combination with other products, equipment, devices, systems, or data not supplied by Particle (including the use of Your Data) to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the Particle Platform made by any party other than Particle or its authorized representative, if such infringement would not have occurred without such alteration, modification or customization. In the event any infringement claim, action or allegation regarding the Particle Platform is brought or threatened, Particle may, at its sole option and expense: (i) procure for You the right to continue use of the Particle Platform or infringing part thereof; (ii) modify or amend the Particle Platform or infringing part thereof, or replace the Particle Platform or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable, terminate the Agreement and the rights granted herein.

11 GENERAL

11.1 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between you and Particle and governs your use of the Particle Platform.If, through accessing or using the Particle Platform, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party's terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party.

11.2 Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.

11.3 Governing Law. This Agreement will be governed in accordance with the laws of the State of California without reference to its conflicts of law principles.

11.4 Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, CA before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration, including a temporary restraining order or preliminary injunction, from a court of appropriate jurisdiction.

11.5 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.6 Assignment. You may not assign this Agreement or any of Your rights or obligations hereunder, to a third party without Particle's written consent, including in connection with a change in control. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.

11.7 Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.

11.8 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email (if sent by Particle to you), or by nationally recognized overnight courier (e.g., FedEx). If a notice is given to You by Particle it will be sent to the address provided in connection with Your registration for a Self-Service Account or to such address as you subsequently provide to Particle as a notice given in accordance with Section 11.9. If you give a notice to Particle it will be sent to Particle Industries, Inc., Attn: Legal, 126 Post Street, Floor 4, San Francisco, CA 94108, with a copy sent to legal@particle.io. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that Particle may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Service (collectively, "Service Notices") in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Service Notice on the Platform. The delivery of any Service Notice is effective when posted to the Platform or sent by Particle (whichever first occurs), regardless of whether You read the Notice when You receive it or whether You actually receive the delivery. You can withdraw your consent to receive Service Notices electronically by canceling your Account. You must give notice to us in writing via email to legal@particle.io or another address provided by Particle.

11.9 Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility, unavailability of public utilities, disruption or unavailability of the internet or cellular service, transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.

11.10 Government End Users. The Particle Platform constitutes "commercial computer software" and any associated documentation constitutes "commercial computer software documentation", pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Particle Platform or such documentation by the United States Government will be governed solely by the terms of this Agreement.

11.11 Export Compliance. You agree not to export, reexport, or transfer, directly or indirectly, any technical data acquired from Particle, or any products utilizing such data, in violation of the United States export control laws, including the Export Administration Regulations and the International Traffic in Arms Regulations, or in violation of any foreign law, regulation or rule. You shall be responsible for any breach of this Section by Your affiliates, employees, agents, distributors, resellers or other service providers.

11.12 Remedies. All rights and remedies of the Parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A Party's breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.