SOFTWARE AS A SERVICE TERMS AND CONDITIONS

THESE SOFTWARE AS A SERVICE TERMS AND CONDITIONS (this “Agreement”) is between Particles Plus, Inc., a Massachusetts corporation (“PPI”) and PPI’s customer who has purchased PPI’s products and access to the Services (the “Customer”).  The Services (as defined below) are being provided by PPI in accordance with this Agreement in connection with the purchase of one of PPI’s products through a reseller.  By using or accessing the Services, or by registering any Designated User to use the Services, Customer agrees to be bound by this Agreement.  If Customer does not agree to be bound by this Agreement, neither Customer nor its Designated Users are permitted to use the Services.  This Agreement is effective as of the date Customer and/or any of its Designated Users first access the Services (the “Effective Date”).   Customer and PPI are individually hereinafter referred to as a “Party” and collectively as the “Parties”. The individual accessing the Services on behalf of the Customer hereby represents and warrants that he or she has the requisite power and authority to contractually bind the Customer to this Agreement.

1. SCOPE OF AGREEMENT

1.1       Scope of Services. The ims-rt platform (the “Software”) will be hosted and distributed online by or on behalf of PPI and made available to Customer as a software as a service, which consists of an online tool that will enable Customer’s Designated Users to monitor air quality, including particulates, in relation to Customer’s use of PPI’s products (together with the Software, the “Services”).  As between the Parties, PPI will be responsible for configuring and hosting the Software, communications systems, network and other infrastructure necessary to provide the Services. Customer or Customer’s Designated Users will be responsible for providing the computer hardware or mobile devices necessary to interface with the Software or interact with the Services.

1.2       Rights to Use.  Subject to the terms and conditions of this Agreement, PPI hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to Customer and Customer’s Designated Users to access and use the hosted Software.

1.3       Ownership.  Nothing in this Agreement shall constitute a transfer of any proprietary right by PPI to Customer.  The Services may be protected by patent, copyright and other intellectual property laws.  PPI, its licensors and suppliers, own and retain all right, title and interest in and to the intellectual property rights in the Services and any enhancements, modifications or derivative works thereof.  As between the Parties, (i) PPI retains ownership to its Confidential Information (as hereinafter defined) and (ii) PPI exclusively owns all right, title and interest in and to the Services and any derivative works and work product conceived, originated, or prepared in connection with the Services.

1.4       Third-Party Sites.  The Services may link, interface and integrate with third-party software applications and websites that are not operated or controlled by PPI (“Third-Party Sites”).  All such Third-Party Sites shall remain the property of their third-party providers. Customer hereby acknowledges and agrees that PPI is not responsible for the content or practices of the Third-Party Sites.  Any links to or content from Third-Party Sites in the Services are provided for Customer’s convenience only.  PPI reserves the right to update or remove any content available through the Services at any time for any reason.

1.5       Reservation of Rights.  All rights not specifically granted to Customer in this Agreement are retained by PPI.  Customer acknowledges the proprietary rights of PPI and its licensors in the Services and that PPI retains all right, title and interest in and to the Services.  Customer further acknowledges and agrees that if Customer suggests any new features, functionality or performance for the Services that are subsequently incorporated into the Services, they shall be the sole and exclusive property of PPI and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon PPI.

1.6       Maintenance and Support.  PPI shall provide Customer with telephone and email based technical support, Monday through Friday, 9:00 A.M. to 5:00 P.M. (Eastern Time) during PPI’s regular business days, excluding weekends and holidays.  Support requests will be responded to by PPI within the next business day.

1.7       Changes to Services.  PPI reserves the right at any time to alter any features, functionality, license terms and other characteristics of the Services.  Any subsequent upgrade, enhancement or other change to the Services shall be owned by PPI and subject to the terms of this Agreement.

2. CUSTOMER’S DUTIES AND RESTRICTIONS

2.1       Login and Password.  Customer must provide PPI with the email addresses and names for Customer’s designated end users and administrators (collectively, the “Designated Users”), and PPI shall assign unique initial login credentials for such Designated Users in order to access the Software.  The logins for the Designated Users may not be shared and shall only be used by the Designated User to whom the login is initially assigned.  Customer is solely responsible for maintaining the confidentiality of the accounts and related passwords of Customer’s Designated Users and all use of such accounts.  Each Designated User must be Customer’s employee or consultant and under Customer’s control. Customer shall be solely responsible for all use of the Services under Customer’s account, including by Customer’s Representatives. Customer hereby agrees that the act or omission of a current or former Representative shall be deemed the same as if performed by Customer.

2.2       Affirmative Covenants.  Customer shall: (i) ensure Customer’s Designated Users, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Services; (iii) notify PPI immediately of any such unauthorized access or use; (iv) comply with applicable federal, state, local, municipal, domestic and foreign laws, rules and regulations (“Law”); (v) use the Services in compliance with all applicable industry standards; (vi) use the Services only for Customer’s own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Services solely in accordance with PPI’s instructions.

2.3       Restrictive Covenants.  Customer shall not, and Customer will cause Customer’s  Representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Services; (ii) use the Services in a manner that violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information; (iv) transfer, resell, license, sublicense or otherwise make the Services available to any third party, except as expressly described in this Agreement; (v) use the Services for timesharing, rental, outsourcing, or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain unauthorized access to PPI’s network, systems or the Services; (vii) decipher, decompile, disassemble, or reverse engineer the Software or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code (“Malware”); (x) obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services; or (xi) access the Services in order to build a competitive product or service or copy any features or functions of the Services.

3. CONFIDENTIAL INFORMATION

3.1       Definition of Confidential Information.  “Confidential Information” means all information, in whatever form, that is disclosed by PPI to Customer, which, given the totality of the circumstances, a reasonable recipient should have reason to believe is proprietary, confidential, or competitively sensitive, regardless of whether such information is labeled as confidential or not, including without limitation personally identifiable information, creative works, business activities, trade secrets, know-how, techniques, research, developments, inventions, discoveries, processes, designs, technical data and information, financial information, vendors, customers, prospects, marketing plans and any other information of a similar nature.  For the avoidance of doubt, PPI’s Confidential Information includes the Software (including the design, features, functions and architecture thereof) and the Services.

3.2       Access and Use.  Customer shall: (i) use and reproduce the Confidential Information only for the purposes specified in this Agreement, and (ii) restrict disclosure of Confidential Information to its Representatives with a need to know the Confidential Information to enable Customer to perform its obligations and exercise its rights under this Agreement, provided that such Representatives are bound by confidentiality obligations at least as strict as those contained in this Section 3, but in no case less than reasonable care.

3.3       Exclusion.  Customer may disclose Confidential Information (including personally identifiable information) in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable Law, Customer provides PPI with prompt notice of the same and cooperates with PPI with any actions taken by PPI to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.

3.4       Notification; Equitable Remedies.  Customer will notify PPI immediately of any breach of this Section 3 of which it becomes aware, and will assist and cooperate with PPI in minimizing the consequences of such breach.  Customer acknowledges that PPI will sustain irreparable harm by a breach of this Section 3 by Customer for which money damages would not be an adequate remedy. Customer therefore agrees that, in the event of a threatened or continuing breach of this Section 3, PPI will be entitled, without prejudice to all other available remedies, to immediate injunctive or other equitable relief.

4. WARRANTIES, DISCLAIMERS AND LIMITATIONS; INDEMNIFICATION

4.1       Warranties.  Each Party represents and warrants to the other that: (i) it is duly organized and existing under the laws of the state of its formation; (ii) it has all requisite power and authority to enter into this Agreement; (iii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement; and (iv) its activities relating to this Agreement will not violate any applicable Law.  PPI will use commercially reasonable efforts not to transmit Malware to Customer, provided that it shall not be a breach of PPI’s covenant to Customer if Customer or a Designated User uploads a file containing Malware in contravention of Customer’s obligations under Section 2.3(ix).

4.2       Services Warranty.  If Customer reasonably believes PPI has failed in a material respect to perform the Services in accordance with the terms of this Agreement, Customer shall notify PPI within thirty (30) days after the defective Services were performed, and in the event of such defective Services, Customer’s sole and exclusive remedy, and PPI’s sole and exclusive obligation, shall be for PPI to correct the defects or re-perform the Services.

4.3       Warranty Disclaimer.  EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PPI MAKES NO WARRANTY, (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  ALL SERVICES PROVIDED BY PPI ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.  PPI DOES NOT WARRANT THAT THE SERVICES OR ITS WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY.  CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SERVICES MAY CHANGE OVER TIME.

4.4       Limitation of Liability.  IN NO EVENT SHALL PPI BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS, DAMAGES FOR LOSS OF GOODWILL, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, EVEN IF PPI HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PPI HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.  PPI’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE TO PPI IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM THAT GAVE RISE TO SUCH LIABILITY.

4.5       Prohibition of Claim.  CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

4.6       Application.  SECTIONS 4.3, 4.4 AND 4.5 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND THE PERFORMANCE OF ANY SERVICES TO BE RENDERED HEREUNDER.

4.7       Indemnification.  Customer will defend, indemnify and hold PPI and its Representatives harmless against any Claim made or brought against PPI arising from Customer’s breach, or alleged breach, of this Agreement.  Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts agreed to by Customer or damages awarded in connection with the Claim.

5. TERM AND TERMINATION

5.1       Term. The term of the Agreement will commence on the Effective Date and will continue until terminated in accordance with the terms of this Agreement.

5.2       Termination for Cause.  Either Party may immediately terminate this Agreement or any part hereof for cause, in the event of any of the following by the other Party: (i) a material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice in reasonable detail of the breach; (ii) the filing of a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy laws by or on behalf of the other Party or an adjudication of bankruptcy of such Party; or (iii) the filing of a petition proposing the adjudication of the other Party pursuant to any federal or state bankruptcy law and such Party consents to such filing or such petition is not dismissed within ninety (90) days after the filing thereof.

5.3       Discontinuance of Business.  If PPI determines to cease to conduct the Services in the normal course of its business, PPI shall have the right to terminate this Agreement upon reasonable prior written notice.

5.4       Suspension of Services.  Notwithstanding any provision herein to the contrary, PPI may suspend the Services in the event of any activity by Customer’s or any of Customer’s Designated Users, if such activity has, or in PPI’s reasonable assessment is likely to have, an adverse effect on the Services.

5.5       Effect of Termination. Immediately upon termination or expiration of this Agreement, PPI’s obligation to provide the Services will immediately cease, and all unpaid fees and other amounts due from Customer for Services previously provided by PPI will immediately become due and payable.  Customer shall, immediately upon termination or expiration of this Agreement, return or destroy, at the option of PPI, all copies of PPI’s Confidential Information that are in its possession or control.

6. GENERAL TERMS

6.1       Publicity.  PPI shall have the right to identify Customer as a PPI customer and include Customer’s trademarks or service marks in its marketing materials for purposes of promotion and marketing of its products, including the Services.

6.2       Law; Dispute Resolution.  This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, without reference to principles of conflict of laws.  Any dispute arising between the Parties will be settled in an action commenced and maintained in any court of competent jurisdiction sitting in Suffolk County, Massachusetts.  The Parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.

6.3       Relationship.  This Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties.  Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever.

6.4       Severability.  If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable law while preserving its original intent.  The invalidity, illegality, or unenforceability of any part of this Agreement will not render invalid the remainder of this Agreement.

6.5       Survivability.  Sections 1.3, 1.5, 2.2., 2.3, 3, 4.3, 4.4, 4.5, 4.6, 4.7, 5 and 6 shall survive and continue to bind the Parties after execution and delivery of this Agreement and its expiration or early termination to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to this Agreement, subject to any applicable statutes of limitation.

6.6       Waiver.  Failure by a Party to insist upon strict performance of any provision herein by the other Party will not be deemed a waiver by the first Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver will be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived.

6.7       Amendment.  PPI reserves the right, in its sole discretion, to change, modify, add to, supplement, amend or delete any terms and conditions of this Agreement at any time; provided, however, that PPI will use reasonable efforts to provide Customer with notification of any material changes (as determined in PPI’s sole discretion) by email, postal mail, website posting, pop-up screen, in-service notice or otherwise.

6.8       Notice.  All notices sent hereunder will be in writing, will be effective upon receipt (except as provided below), and may be: (i) personally delivered; or (ii) sent by a nationally recognized overnight commercial delivery service with provision for receipt, postage or delivery charges prepaid (effective upon receipt or refused delivery); and will be addressed to the Parties at the address set forth on the initial page of this Agreement or as updated in writing by a Party in accordance with this Section 6.

6.9       Force Majeure.  In no event will PPI be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including without limitation the discontinuation or suspension of any service provided by any third party to PPI that is necessary for the provision of the Services under this Agreement.

6.10     Assignment.  Customer does not have the right to assign, transfer, or pledge any Customer’s rights, duties, or obligations hereunder without the prior written consent of PPI.  PPI shall have the right to assign, transfer, or pledge any of its rights, duties, or obligations hereunder without Customer’s prior written consent, including to a successor in the event of a merger, sale of substantially all of PPI’s assets, acquisition or other change of control with respect to PPI or any division of its business.  The Agreement is binding upon and inures to the benefit of each Party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in this section.

6.11     Construction.  In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,”  and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term and (viii) any reference to “dollars” means United States Dollars.

6.12     Entire Agreement.  Except as amended after the date hereof pursuant to Section 6.7, this Agreement and any exhibits hereto, constitute the entire Agreement between the Parties and supersede all prior and contemporaneous undertakings and agreements between the Parties, whether written or oral, with respect to the Services.