MVNO v2 program

PLEASE READ THIS TERMS OF USE AGREEMENT (“TERMS OF USE”) CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON OR ACCESSING OR USING THE PARTICLE INDUSTRIES, INC. (“PARTICLE” OR “WE”) HOSTED SERVICES (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, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT, AND TO BIND THAT ENTITY TO THIS TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU COMPLETED THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS TERMS OF USE, YOU MUST NOT ACCESS OR USE THE HOSTED SERVICES. Particle and you may be referred to individually as a “Party” and collectively as the “Parties”.

OVERVIEW

1.1 Our Service. Particle offers an online service that integrates with individual items of customer hardware that have been provisioned to access Particle’s cloud (each, a “Device”) to perform various Internet of Things related tasks and functions (the “Hosted Service”). The Device uses proprietary Particle hardware (the “Hardware”) that includes a Subscriber Identity Module (SIM) to allow data communications through machine to machine services made available by a Communications Provider (“M2M Services”), which are used to access the Hosted Service. The Hosted Service, related Software (as defined below) and Hardware offered under these Terms of Use (collectively, the “Particle Properties”) presently are in “limited production” and have not yet undergone final testing or been made generally available. They should be used for evaluation purposes only and should not be used for productive use. Particle may limit the number of Events (as defined below) that may be performed by the Hosted Service under this Agreement. As used herein, an “Event” means any HTTP/HTTPS request made by the Hosted Service to a third party service(s), including without limitation, via webhooks or integrations or any discrete message sent via integrations, websockets or server sent event (SSE) streams by the Hosted Service to any third party service(s). The term of use of the Particle Properties shall be limited to a three month trial period (the “Trial Term”). The Particle Properties will be provided by Particle at no charge during the Trial Period. Billing for the Hosted Service and the M2M Service will automatically be added following the Trial.

1.2 Accounts. In order to use the Hosted Service and receive the Hardware, you must register for an account with Particle (an “Account”). You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. Particle may suspend or terminate your Account if you breach any of the terms of this Agreement. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Particle of any unauthorized use, or suspected unauthorized use, of your 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.

LICENSED USES AND RESTRICTIONS

2.1 Access Grant. Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the Hosted Service solely as necessary to develop, maintain and support your Devices in accordance with the documentation or specifications included in the Hosted Service.

2.2 Particle Software. Use of any software and associated documentation that is made available via the Hosted Service (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Particle provide you with any tangible copy of our Software. Particle shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). You are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement. Subject to your compliance with this Agreement, Particle grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Hosted Services in the manner permitted by this Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.

2.3 Restrictions. You agree that you will not, and will not assist, permit, authorize, or enable others to do any of the following restrictions (each, a “Restriction”) without our express written consent: (i) reverse engineer or decompile the Particle Properties or M2M Service or any component thereof, or attempt to create a substitute or similar service through use of or access to the Particle Properties, unless this is expressly permitted or required by applicable law; (ii) copy, rent, lease, sell, transfer, assign, sublicense, or alter any part of the Particle Properties; (iii) use the Particle Properties for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement; (iv) remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the Particle Properties; (v) use the Particle Properties in a manner that, as determined by Particle, in our sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of applicable documentation; or (vi) use the Particle Properties for productive or commercial use.

2.4 Usage Limitations. Particle may limit: (i) the number of network calls that your Devices may make to the Hosted Service; (ii) the maximum file size; and (iii) anything else about the Event as we deem appropriate, in our sole discretion. We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the Hosted Service by a Device after any usage limitations are exceeded or suspend your access to the Hosted Service with or without notice to you in the event you exceed any such limitations.

DEVICES

3.1 Device Policy. You are solely responsible and liable for your Devices, and for supporting the Devices. You will not offer for sale, sell, transfer or distribute any Devices containing the Hardware or that access the Hosted Services.

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

3.3 Monitoring. You agree to provide us with access to your Device and other materials related to your use of the Hosted Service as reasonably requested by us to verify your compliance with this Agreement.

3.4 Unauthorized Applications. You understand that the Particle Properties are not designed, intended, authorized or warranted to be suitable for use in 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; and Enhanced 911 or E911 emergency calling system. You warrant that you will not use the Particle Properties for Unauthorized Applications.

OWNERSHIP

4.1 Ownership. As between you and Particle, Particle owns all right, title and interest in and to the Hosted Service and Software and all intellectual property rights in the Hardware, and the Communications Provider that provides the M2M Services owns all right, title and interest in and to the M2M Services. Except for the license granted in Section 2.1 (License Grant), this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by us, including the Particle Properties. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no ownership or control over your Device or the content sent, posted or displayed through your Device, except for any Particle Properties therein.

RELATIONSHIP

5.1 Independent Development. 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 Device and its 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.

5.2 Feedback. To assist us in identifying problems with and making improvements to the Hosted Service, Hardware and Software, you agree to respond to our questionnaires and surveys regarding the Particle Properties. Particle will have unrestricted rights to use such responses and any other feedback you provide to us to improve or modify the Particle Properties.

TERM AND TERMINATION

6.1 Term. You agree that this Agreement will be deemed to be in effect upon the date on which you accept this Agreement, in accordance with the preamble and, unless earlier terminated, will continue for the Trial Period.

6.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the Particle Properties, or any aspect of your access to the Particle Properties, 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 Properties without notice to you and without incurring any liability to you. Furthermore, Particle may limit, suspend, or terminate your use of the Particle Properties (and your rights under this Agreement) at any time. In addition, this Agreement will terminate automatically and without notice immediately upon your breach of any of the terms of this Agreement.

6.3 Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; and (ii) 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.

6.4 Survival. Sections 4.1 (Ownership), 5.1 (Independent Development), 6.4 (Survival), and 7 (Confidentiality) through 11 (General) will survive any termination of this Agreement.

CONFIDENTIALITY

7.1 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.

7.2 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, each Party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement.

DISCLAIMER AND LIABILITY

8.1 Disclaimer. THE PARTICLE PROPERTIES ARE PROVIDED ON A LIMITED PRODUCTION BASIS PRIOR TO MAKING SUCH PARTICLE PROPERTIES GENERALLY AVAILABLE, AND, TOGETHER WITH THE M2M SERVICES, ARE 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 PROPERTIES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE PARTICLE PROPERTIES OR M2M SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PARTICLE PROPERTIES OR M2M SERVICES, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE PARTICLE PROPERTIES AND M2M SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH USE 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 OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.

8.2 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, THE PARTICLE PROPERTIES OR THE M2M SERVICES. 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 OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE PARTICLE PROPERTIES OR YOUR USE THEREOF, INCLUDING YOUR ACCESS THROUGH THE M2M SERVICES, EXCEED $100. 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.

INDEMNIFICATION

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 Device, your use of the Particle Properties or M2M Services, 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.

GENERAL.

10.1 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between you and Particle and governs your use of the Particle Properties. If, through accessing or using the Particle Properties, 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.

10.2 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.

10.3 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. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in San Mateo County, California.

10.4 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.

10.5 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other Party’s written consent, except that a Party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. 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.

10.6 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.

10.7 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth on the Cover Page. 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, “Notices”) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on the Service. The delivery of any Notice is effective when posted to the Service 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 Notices electronically by canceling your Account. You must give notice to us in writing via email to hello@particle.io or another address otherwise expressly provided.

10.8 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 or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.

10.9 Government End Users. The Particle Properties are “commercial computer software” and any associated documentation is “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 Properties or such documentation by the United States Government will be governed solely by the terms of this Agreement.

10.10 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.