Terms of Service (EULA)

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.

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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 “API” means Applied Particle Technology’s application programming interface.

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1.4 “Apps” means software applications for smartphones and tablets distributed by Applied Particle Technology.

1.5 “Authorized Users” means Customer’s employees, contractors, and agents authorized to access the Products.

1.6 “Confidential Information” means all non-public information disclosed by one party to the other, including but not limited to technical data, business information, product roadmaps, and Customer Data.

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1.7 “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.

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1.8 “Firmware” means software embedded in or otherwise running on theHardware.

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1.9 “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.

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1.10 “Hosted Software” means Applied Particle Technology’s web-based software platform, including the interface accessed online at appliedparticle.io or appliedparticletechnology.com.

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1.11 “Order Form” means the quote describing the purchase of Applied Particle Technology Products and licenses issued by Applied Particle Technology.

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1.12 “Products” means the Hardware, Firmware, Services, and Apps.

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1.13 “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.

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1.14 “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.

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1.15 “Services” means the Hosted Software and Support Services that are included with Applied Particle Technology products.

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1.16 “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.

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1.17 “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 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.
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3. Changes to Terms or Services. Applied Particle Technology may modify these Terms from time to time by providing notice through the Services, via email, or by posting updated Terms at https://www.appliedparticletechnology.com/terms-of-services. Changes become effective 30 days after notice. Continued use of the Services after the effective date constitutes acceptance. If changes materially reduce Customer's rights, Customer may terminate within 30 days for a pro-rated refund. Applied Particle Technology may also modify, suspend, or discontinue any aspect of the Services with 90 days' notice, except for emergency security updates which may be implemented immediately.
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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.

4A. Service Levels. Applied Particle Technology will use commercially reasonable efforts to make the Hosted Software available with at least 99.0% uptime per month, excluding: (i) planned maintenance (with at least 24 hours' notice for maintenance expected to exceed 4 hours); (ii) force majeure events; (iii) failures of Customer's internet or network; (iv) issues caused by Customer's misuse; or (v) beta/preview features. Customer's sole remedy for failure to meet this uptime commitment is a service credit equal to 5% of the monthly Services fee for each 1% below 99.0%, up to a maximum of 50% credit, which must be requested within 30 days with supporting documentation. Service credits are Customer's exclusive remedy for unavailability.
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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; (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; (xiv) use any data mining, robots, scraping, or similar data gathering methods; (xv) use the Services to train, develop, or improve any artificial intelligence, machine learning, or similar technology; (xvi) overburden or interfere with the Services or networks connected to the Services; (xvii) introduce any viruses, malware, or malicious code; (xviii) access or use the Services for purposes of building a competitive product or service or copying features or functionality; (xix) remove, obscure, or alter any proprietary rights notices; (xx) use the Services in any manner that could damage Applied Particle Technology’s reputation; (xxi) exceed any rate limits or usage quotas specified in an Order Form.

5A. Acceptable Use Policy. Customer agrees not to use the Services to: (i) violate any laws or regulations; (ii) infringe third-party rights; (iii) distribute spam, malware, or harmful content; (iv) interfere with others' use of the Services; (v) engage in fraudulent activity; (vi) collect personal information without consent; or (vii) assist others in doing any of the above. Applied Particle Technology may suspend access immediately if Customer violates this policy and such violation poses security or legal risks.

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 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, or new 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, and may not opt-out of them. Applied Particle Technology will provide at least 30 days' advance notice for: (i) discontinuation of material features or functionality; (ii) changes that require Customer action; or (iii) updates that may cause downtime exceeding four (4) hours.

7A. Beta and Preview Features. Applied Particle Technology may offer features designated as “beta,” “preview,” “experimental,” or similar designations. These features are provided AS-IS without warranties or service level commitments, may contain bugs or errors, may be discontinued at any time without notice, and should not be used in production environments or for critical operations. Customer's use of beta features is at its own risk.

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. Unless otherwise specified in an Order Form, subscriptions automatically renew for successive periods equal to the initial term at Applied Particle Technology’s then-current rates. Applied Particle Technology will provide at least 60 days' notice of price increases. Customer may opt-out of renewal by providing notice at least 30 days before the renewal date. Late payments accrue interest at 1.5% per month (or the maximum rate permitted by law, whichever is lower). Applied Particle Technology may suspend Services if payment is more than 30 days overdue, without waiving its right to payment or other remedies.

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. Applied Particle Technology may suspend Customer's access to the Services if: (i) Customer's account is more than 30 days overdue; (ii) Customer breaches Sections 5, 5A, or 10.3; (iii) Customer's use poses security risks or legal liability to Applied Particle Technology; or (iv) Applied Particle Technology reasonably believes suspension is necessary to prevent harm. Applied Particle Technology will provide notice before suspension where reasonably practicable, except in cases of security threats or legal requirements. Applied Particle Technology will lift suspension promptly upon cure of the issue.

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, sublicensable, 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 discloses the locations of the 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. Upon termination or expiration of this Agreement, Applied Particle Technology will make Customer Data available for export for 30 days. After such period, Applied Particle Technology will delete Customer Data within 90 days, except as required by law or Applied Particle Technology's backup retention policies (maximum 365 days). Customer is solely responsible for exporting data prior to termination.

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. Customer agrees to indemnify, defend and hold harmless Applied Particle Technology, its affiliates, and their respective officers, directors, employees, and agents against any liabilities, damages, demands, losses, claims, costs, and expenses (including reasonable legal fees) in connection with any third-party claim arising from: (i) Customer's breach of Section 10.2; (ii) Customer's violation of applicable laws or regulations; (iii) Customer's violation of third-party rights; or (iv) use of the Services by Authorized Users. This indemnification is contingent upon Applied Particle Technology providing: (a) prompt written notice of the claim; (b) sole control of the defense and settlement (provided Customer may not settle without Applied Particle Technology’s consent if it imposes obligations on Applied Particle Technology); and (c) reasonable cooperation.

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10.3 Confidentiality. Each party agrees to: (i) protect the other party's Confidential Information using at least the same degree of care it uses for its own confidential information, but no less than reasonable care; (ii) not disclose Confidential Information except to employees, contractors, or advisors with a need to know who are bound by confidentiality obligations; and (iii) not use Confidential Information except as necessary to perform under this Agreement. These obligations do not apply to information that: (a) is or becomes publicly available through no breach; (b) was rightfully known prior to disclosure; (c) is independently developed without use of or reference to Confidential Information; or (d) is rightfully received from a third party without any obligation of confidentiality. Either party may disclose Confidential Information if compelled by law, provided it gives reasonable advance notice to allow the other party to seek protective measures. These confidentiality obligations survive for three (3) years after termination of this Agreement, except trade secrets, which are protected indefinitely.

10.4 Data Security. Applied Particle Technology will maintain reasonable administrative, physical, and technical safeguards designed to protect Customer Data, consistent with industry standards for similar services. Customer is responsible for: (i) properly configuring security settings; (ii) maintaining secure Account credentials, (iii) encrypting sensitive data before uploading if additional protection is needed, and (iv) implementing appropriate access controls for Authorized Users. Applied Particle Technology will notify Customer without unreasonable delay upon becoming aware of unauthorized access to Customer Data, and will cooperate with Customer's reasonable investigation requests.

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 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 or intellectual 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 IN CONNECTION WITH ANY THIRD-PARTY LEGAL PROCEEDING TO THE EXTENT ARISINGFROM APPLIED PARTICLE TECHNOLOGY’S BREACH OF THIS PROVISION. The foregoing indemnification 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 unreasonably withheld); and (iii) reasonable cooperation from Customer in connection with such claim. Applied Particle Technology’s indemnification obligations under this Section 11.1 do not apply to claims arising from: (i) modifications to the Applied Particle Technology Software not made by Applied Particle Technology; (ii) use of the Applied Particle Technology Software in combination with third-party products, services, or data not provided by Applied Particle Technology; (iii) use of a superseded or older version of the Applied Particle Technology Software if infringement would have been avoided by using a current version; (iv) Customer Data or content provided by Customer; or (v) Customer's breach of the license restrictions in Section 5. Applied Particle Technology’s remedies for IP infringement claims include, at Applied Particle Technology’s option: (a) procuring rights for continued use; (b) replacing or modifying the infringing component; or (c) terminating the relevant license and refunding prepaid fees on a pro-rata basis. This Section 11.1 states Applied Particle Technology’s entire liability and Customer's exclusive remedy for intellectual property infringement claims.

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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.
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12. Wifi, Network, and Cellular Data Usage: Customer is responsible for providing necessary Network and/or Data Infrastructure for the Applied Particle Technology Monitors to connect to the Applied Particle Technology 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 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.

12A. Export Compliance. The Products may be subject to U.S. export control laws and regulations. Customer agrees to comply with all applicable export and import laws and will not export, re-export, or transfer the Products except in compliance with such laws. Customer represents that it is not: (i) located in, or a national of, any country subject to U.S. embargo or trade sanctions; (ii) identified on any U.S. government prohibited parties list; or (iii) engaged in activities related to weapons proliferation. Customer shall indemnify Applied Particle Technology for violations of this section.
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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.
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14. Publicity. Applied Particle Technology will not use Customer’s name, trademarks, or logos in any way without Customer’s prior consent.
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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 here under.

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15.1 Termination. (a) Either party may terminate this Agreement or any Order Form upon 30 days' written notice if the other party materially breaches this Agreement and fails to cure within such 30-day period. (b) Applied Particle Technology may terminate immediately without notice if: (i) Customer breaches Sections 5 (License Restrictions), 8 (Payment), or 10.3 (Confidentiality); (ii) Customer's actions create security or legal risks; or (iii) Customer becomes insolvent or subject to bankruptcy proceedings. (c) Either party may terminate for convenience upon 90 days' written notice, effective at the end of the then-current term. (d) Refunds are only available if Applied Particle Technology materially breaches and fails to cure, calculated on a pro-rata basis for prepaid, unused Services. No refunds are provided for Customer breach or convenience terminations. (e) Upon termination for Customer breach, all amounts owed become immediately due.

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15.2 Effect of Termination. Upon any termination, the following Sections will survive: 5 (Restrictions), 8 (Payment), 10 (Customer Data - ownership and indemnification provisions only), 10.3 (Confidentiality), 11 (Proprietary Rights), 15 (Term), 16 (Warranty Disclaimers), 17 (Limitation of Liability), 18 (Dispute Resolution), 19 (Governing Law), and 20 (General Terms). Upon termination: (i) all licenses immediately terminate; (ii) Customer must cease all use of the Products and delete or return all Applied Particle Technology Confidential Information; (iii) if Hardware was provided as a trial or lease, Customer must return it within 30 days at Customer's expense, failing which Applied Particle Technology may charge Customer the full retail value; (iv) each party must return or destroy the other's Confidential Information upon request; and (v) Customer must pay all outstanding amounts within 15 days.
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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 not violate 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 WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. In addition, 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, and Applied Particle Technology makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any analytics or Customer Data. The warranty in this Section 16 does not apply to: (i) issues caused by accident, misuse, abuse, or negligence; (ii) unauthorized modifications or repairs; (iii) failure to install updates; (iv) use contrary to documentation or Order Form specifications; or (v) third-party hardware, software, or services.

Hardware Warranty: Applied Particle Technology warrants that Hardware will be free from material defects in materials and workmanship for 12 months from delivery. Applied Particle Technology’s sole obligation for breach of hardware warranty is to repair or replace the defective Hardware, or refund the purchase price, at Applied Particle Technology’s option.

Third-Party Services: To the extent the Services integrate with or rely on third-party services, Applied Particle Technology makes no warranties regarding such third-party services and disclaims all liability for their performance or availability.

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17. Limitation of Liability.

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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 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 HERE IN 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 NOTAPPLY.

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17.2 Cap. 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 IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. The limitations set out in this Section 17.2 shall not apply to: (i) Customer's indemnification obligations under Section 10.2; (ii) Customer's breach of Section 5 (License Restrictions); (iii) Customer's breach of Section 10.3 (Confidentiality) with respect to Applied Particle Technology’s trade secrets; (iv) either party's fraud or willful misconduct; or (v) liability that cannot be limited under applicable law.

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.

17A. Force Majeure. Neither party shall be liable for failure or delay in performance due to causes beyond its reasonable control, including acts of God, natural disasters, terrorism, war, civil unrest, pandemic, labor disputes, supply chain disruptions, utility or telecommunications failures, government actions, or third-party service provider failures. The affected party must provide prompt notice and use reasonable efforts to resume performance. If a force majeure event continues for more than 90 days, either party may terminate the affected Order Form without penalty.

18. Dispute Resolution.

18.1 Informal Resolution. Before filing any claim, the parties agree to attempt to resolve disputes informally by providing written notice describing the dispute and proposed resolution. The parties will negotiate in good faith for 30 days.

18.2 Binding Arbitration. If informal resolution fails, any dispute shall be resolved by binding arbitration administered by JAMS under its Streamlined Arbitration Rules. The arbitration shall be conducted by a single arbitrator, in Boise, Idaho. Each party bears its own costs and attorneys' fees, and shares arbitrator fees equally unless the arbitrator determines otherwise. The arbitrator will award attorney’s fees and costs to the prevailing party. The arbitrator's decision is final and binding, and judgment may be entered in any court of competent jurisdiction.

18.3 Exceptions. Either party may seek injunctive relief in court for: (i) intellectual property infringement; (ii) breach of confidentiality obligations; or (iii) violation of license restrictions.

18.4 Class Action Waiver. Each party waives any right to bring claims on a class, collective, or representative basis. Disputes must be brought individually.

18.5 Jury Waiver. To the extent arbitration does not apply, each party waives its right to jury trial.

19. Governing Law. This Agreement and any action related thereto will be governed by the laws of the State of Idaho 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 Customer regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Applied Particle Technology and Customer 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. Neither party may assign this Agreement without the other party's prior written consent (not to be unreasonably withheld), except that either party may assign to: (i) an Affiliate that is at least as financially capable of performing the obligations, with notice; or (ii) a successor in connection with a merger, acquisition, or sale of all or substantially all assets. Any attempted assignment in violation of this section is void. 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 any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

20A. Government Rights. If Customer is a U.S. government entity or using the Products on behalf of the U.S. government, the Products are “commercial items” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation.” Use, reproduction, and disclosure are subject to the terms of this Agreement per 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable.

21. Contact Information. If you have any questions about these Terms or the Products, please contact Applied Particle Technology at sales@appliedparticletechnology.com.

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