Applied Particle Technology Terms of Service
Last Updated: January 1, 2019
Welcome to Applied Particle Technology. Please read these Terms of Service (the “Agreement”) carefully because they govern your use of our products and services.
1.1 “Account” means the accounts Customer 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, the Customer.
1.3 “Apps” means software applications for smartphones and tablets distributed by Applied Particle Technology through Google Play or through the Apple App Store.
1.4 “Customer” means the company or legal entity for which you are accepting this agreement, and Affiliates of that company or entity.
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 the Hardware.
1.7 “Hardware” means the Applied Particle Technology hardware devices such as 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 Particle Technology 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 terms of 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 of any 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, and Hosted Software, and any improvements, modifications, patches, updates, and upgrades thereto that Applied Particle Technology develops or provides in connection with this Agreement.
1.13 “Services” means the Hosted Software and Support Services that are included with Applied Particle Technology products.
1.14 “Support Services” means the customer support services described at www.Appliedparticletechnology.com, 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 accepting this Agreement, either by clicking a box indicating your acceptance or 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 legal entity to these Terms. References to “you” and “your” in these Terms refer to that company or other legal entity, our Customer. You may not use the Services if you are our direct competitor, as determined in our sole discretion, except with our prior written consent.
3. Changes to Terms or Services. We may modify the Terms at any time, in our sole discretion. If we do so, we will inform you either by posting the modified Terms within the Services or through other communications with you, our Customer. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Services, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not continue to use the Services.
4. License. Subject to the terms and conditions specified in this Agreement or an 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 expires or the earlier termination of this Agreement. The Support Services and the Hosted Software SLA at https://www.appliedparticle.io are included as part of the license grant and contingent upon a valid license. The Firmware license for each item of Hardware that the Customer purchases is contingent upon Customer purchasing and maintaining a 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, or reproduce 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 Applied Particle Technology’s providers or any other third party (including another user) to protect the Applied Particle Technology Software; (v) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the Firmware to any third party; (vi) unless permitted 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 to do 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 Technology Software; (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) violate any applicable law or regulation; or (xiii) encourage or enable any other individual to do any 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 may require 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 Technology Software and cause Firmware updates to be automatically installed onto Customer Applied Particle Technology Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models. Applied Particle Technology may change or discontinue all or any part of the Products, at any time and without notice, at Applied Particle Technology’s sole discretion. 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, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.
8. Payment, Shipping, and Delivery. The payment and billing terms are set forth 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 and de-activate such Account or change the Account’s login information.
10. Customer Data.
Ownership and Usage. Customer Data is accessible via the Applied Particle Technology 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 will not share Customer Data without Customer consent, except when the release of data 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 third party services providing or improving the Applied Particle Technology Software (provided that such data is not personally identifiable); 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 Terms and (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 or accompanying 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 hereby accepts such transfer. No ownership rights are being conveyed to Customer under this Agreement. Except for the express rights granted herein, Applied Particle Technology does not grant any other licenses or access rights, whether express or implied, to any other Applied Particle Technology software, services, technology or intellectual property rights.
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 not expressly 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 and Cellular Data Usage: 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 thereof. 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 use of any third-party websites or resources.
14. Publicity. Customer hereby grants Applied Particle Technology permission to use the Company name and logo on Applied Particle Technology’s website, customer lists, and marketing materials to list Customer as a customer. However, Applied Particle Technology will not use Customer’s name, trademarks, or logos in any other 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 ends or until otherwise terminated earlier as provided hereunder.
15.1 Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time upon notice to you. However, if we terminate your access to the Services at our convenience and not due to your breach of these Terms, then we will provide you with a refund for the value remaining on your pre-paid license in your purchase agreement.
15.2 Effect of Termination. Upon any termination, the following Sections of these Terms 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. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, APPLIED PARTICLE TECHNOLOGY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Applied Particle Technology makes no warranty that the Services will meet Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. 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, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE 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 ANY OTHER 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 HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
17.2 Cap. EXCEPT AS TO ANY EXPRESS INDEMNIFICATION OBLIGATION SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS CUSTOMER HAS PAID TO APPLIED PARTICLE TECHNOLOGY HEREUNDER, OR IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO APPLIED PARTICLE TECHNOLOGY (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).
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. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved by the Parties within a period of sixty (60) days after notice of a dispute has been given by one Party hereunder to the other, shall be finally settled by arbitration in Saint Louis, Missouri, United States, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes.
19. Governing Law. This Agreement and any action related thereto will be governed by the laws of the State of Missouri without regard to its conflict of laws provisions. Exclusive jurisdiction and venue for actions related to these Terms or Customer use of the Services will be the state and federal courts located in Saint Louis County, Missouri, United States, and both parties consent to the jurisdiction of such courts with respect to any such actions.
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 or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Applied Particle Technology’s prior written consent, except in the case of a merger, acquisition, or sale of all or substantially all assets of your company. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Applied Particle Technology may freely assign or transfer these Terms without restriction. 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 e-mail, 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 any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Financed Purchases. If you are accessing the Products through a financing entity (“Lender”), the terms in this Section shall apply. Any obligation you may have to the Lender is absolute and unconditional, not subject to any setoff or counterclaim. You acknowledge and agree that when you sign the financing documents with the Lender, the Lender is prepaying for the Products on your behalf and such prepayment is final and cannot be refunded. You accept the risk that any Products are not provided or are not satisfactory; provided this sentence does not affect your rights against Applied Particle Technology as limited by these Terms, or Applied Particle Technology’s obligations to you under these Terms. If you choose to discontinue use of the Products for any reason, you will continue to be liable for any outstanding payment obligations specified in your Financing Agreement you have signed to finance the acquisition of the Products. If you have any claim against or dispute with Applied Particle Technology, you may not take action by reason of such claims to Lender. If you are purchasing through a Lender, Applied Particle Technology may only terminate your access to the Products should you breach these Terms or the terms between you and the Lender. Any refunds issued under this Agreement by Applied Particle Technology shall be remitted to the Lender in reduction of the total number of remaining payments owed by you. Applied Particle Technology shall remit any refunds issued pursuant to the terms of this Agreement to the Lender in reduction of the total number of remaining payments owed by you.
22. Contact Information. If you have any questions about these Terms or the Services, please contact Applied Particle Technology at firstname.lastname@example.org or by mail at 4320 Forest Park Ave. Suite 304, St. Louis ,MO 63108