API & SDK License Agreement

Effective Date: May 1, 2022

Developer API and SDK License Agreement | Particle Network

BY ACCESSING OR USING THE PARTICLE NETWORK LABS, INC. (“WE”, “US”, “OUR”, “Particle Network”) API OR SDK (EACH AS DEFINED BELOW), YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS” OR “LICENSEE”) ARE AGREEING TO BE BOUND BY THIS PARTICLE NETWORK API/SDK LICENSE AGREEMENT, EACH OF OUR USER AND DEVELOPER TERMS OF SERVICE, ANY ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN, TERMS WITHIN THE ACCOMPANYING API DOCUMENTATION, AND ANY RELATED APPLICABLE POLICIES AND GUIDELINES WE MAY MAKE AVAILABLE FROM TIME TO TIME (COLLECTIVELY, THE “AGREEMENT”), AND HEREBY REPRESENT THAT YOU ARE AUTHORIZED TO BIND LICENSEE.YOUR DOWNLOAD OR CONTINUED USE OF THE SDK OR API WILL CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, IMMEDIATELY CEASE THE DOWNLOAD OR USE, AND YOU WILL HAVE NO RIGHT TO USE, THE SDK OR API. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION. YOU AGREE AND UNDERSTAND THAT DISPUTES ARISING UNDER THIS AGREEMENT WILL BE SETTLED IN BINDING ARBITRATION. YOU ALSO AGREE AND UNDERSTAND THAT ENTERING INTO THIS AGREEMENT CONSTITUTES A WAIVER OF YOUR RIGHT TO A TRIAL BY JURY OR PARTICIPATION IN A CLASS ACTION LAWSUIT.

• Subject to full compliance with the terms of this Agreement, Particle Network hereby grants you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use our application programming interface located at api.particle.network and related information and documentation (collectively, the “API”) and our API Software Development Kit (“SDK”), but only to build software applications (each an “App”) that communicate with our proprietary authentication platform service or other services that we may provide through the API (the “Services”). Some of the software required by or included in our APIs may be offered under an open source license. Open source software licenses constitute separate written agreements. For certain APIs, open source software is listed in the documentation. To the limited extent the open source software license expressly supersedes the Agreement, the open source license instead sets forth your agreement with Particle Network for the applicable open source software.

• Subject to full compliance with the terms of this Agreement, we hereby grant you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to distribute those components of the SDK we identify as “distributable” but only in object code form, as part of an App.

• Except as expressly authorized herein, you will not disclose (or allow access to) the API or SDK (or any information derived from them) or any other confidential information provided to you to any third party and will limit access to the API and SDK (and any derived information) to your employees who are developing the App. In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information. You will not reverse engineer any aspect of the API or SDK or permit anyone else to do so (except to the limited extent this restriction is expressly prohibited by applicable law).

• You will use your App and the Services in compliance with all applicable laws and regulations (“Laws”) and will obtain all necessary permits or licenses (“Permits”), which includes without limitation, all approvals, authorizations, consents, qualifications to do business and certificates issued by any governmental authority, quasi-governmental authority, or legal body of the United States or any foreign body of any foreign jurisdiction related to the transmission of fiat currency, digital or cryptocurrency or other blockchain tokens necessary for your end users use of your App or the Services.

• You will require your end users to comply with (and not knowingly enable them to violate) applicable Laws, regulations, and the Agreement, including separately agreeing to our User Terms of Service. You will provide and adhere to a privacy policy for your App that clearly and accurately describes to users of your App what user information you collect and how you use and share such information (including for advertising) with Particle Network and third parties. If your or your end users’ use of the Services is prohibited by Laws or you do not have the required Permits, then you and your end users are not authorized to use the Services. We cannot and will not be responsible for your or your end users using the Services in a way that breaks any Laws.

• You agree not to block, disable, hide or limit in any way the ability of any device (whether or not it includes the App) to access the Services or any portion or functionality of or enabled by the Services. In addition, you agree that, when using the APIs, you shall not (or allow those acting on your behalf to):

  • Sublicense an API for use by a third party or create an App that functions substantially the same as the APIs and offer it for use by third parties;

• Perform an action with the intent of introducing to Particle Network products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature;

• Seek to gain access to a user’s private key or other login information related to a digital asset wallet without their explicit consent subject to a previously disclosed privacy policy;

• Defame, abuse, harass, stalk, or threaten others;

• Interfere with or disrupt the APIs or the servers or networks providing the APIs;

• Promote or facilitate unlawful online gambling;

• Reverse engineer or attempt to extract the source code from any API or any related software, except to the extent that this restriction is expressly prohibited by applicable law; or

• Violate or infringe upon the privacy, publicity, intellectual property, or other proprietary rights of third parties.

• Each App must maintain 100% compatibility with the API, the SDK and the Services (including changes provided to you by Particle Network, which will be implemented in the App promptly thereafter). If any App uses or implements an outdated version of the API, SDK or the Services, you acknowledge and agree that such App may not be able to communicate with the Services. You agree not to modify, extend, subset or superset the API or SDK to any extent. You also acknowledge and agree that Particle Network may set and enforce limits on your use of the APIs (e.g. limiting the number of API requests that you may make or the number of users you may serve), in our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented with each API without our express consent (and we may decline that request or condition acceptance on your agreement to additional terms and/or charges for that use). You understand that we may cease support of old versions or releases of the API or SDK.

• You will use commercially reasonable efforts to protect user information collected by your App, including personally identifiable information ("PII"), from unauthorized access or use and will promptly report to your users any unauthorized access or use of such information to the extent required by applicable law. Particle Network will use commercially reasonable efforts to (i) provide basic support to you and (ii) maintain the security and integrity of the Services.

• By using Particle Network Services, we do not acquire ownership in your App, and by using our APIs, you do not acquire ownership of any rights in our APIs, the SDK, or the content that is accessed through our APIs. However, you hereby grant Particle Network a nonexclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all intellectual property rights with respect to improvements or extensions that you create or are created for you that are relevant to the API or SDK or otherwise result from or are enabled by access to the API or SDK. If you provide feedback or suggestions about our APIs, then we (and those we allow) may use such information without obligation to you. For clarity, you are not required to disclose any such patent or patent rights to Particle Network. Particle Network shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the API, SDK and/or the Services and related systems and technologies, and Particle Network will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the API, SDK and the Services and for other development, diagnostic and corrective purposes in connection with the API, SDK and the Services and other Particle Network offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

• PARTICLE NETWORK PROVIDES THE API, SDK AND THE SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. PARTICLE NETWORK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF ITS API, SDK OR SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.

• LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF PARTICLE NETWORK OR ITS SUPPLIERS OR RESELLERS WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, , OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE API OR SDK, OR (B) ANY DIRECT DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT IN EXCESS OF \$100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

• You agree to indemnify and hold harmless Particle Network, its affiliates, subsidiaries, directors, managers, members, officers, and employees from any and all claims, liabilities, demands, actions, damages, losses, costs or expenses, including without limitation, reasonable legal fees, arising out of or relating to (i) your or your end users’ use or misuse of, or access to, your App and the Services (ii) your violation of this Agreement or any Laws or Permits, (iii) your infringement, or the infringement by any third party using your account, of any intellectual property or other right of any person or entity, (iv) a claim alleging that any of your or your end users’ data infringes the rights of, or has caused harm to, a third party or (v) any violation of any rights of any other person or entity; provided however, that you will not indemnify Particle Network for claims or losses arising out of Particle Network’s gross negligence or willful misconduct.

• You may stop using our APIs at any time with or without notice. Further, if you want to terminate the Terms, you must provide us with prior written notice and upon termination and cease your use of the applicable APIs. We reserve the right to terminate the Agreement with you or discontinue the APIs or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us (if applicable) or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

• Except as described in this Agreement, all notices to be provided under this Agreement shall be given in writing (a) as to the Licensee, at the email address provided by Licensee upon registration of Licensee’s account or user ID in Particle Network’s systems, or at such other account Licensee maintains with Particle Network, and (b) as to Particle Network, at [e-mail]. This Agreement is the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. Particle Network reserves the right to modify this Agreement from time to time upon notice to Licensee (via email or by posting a notice to the page where Licensee accesses its SDK or API account); if Licensee does not agree with this Agreement as so modified, its only remedy shall be to terminate this Agreement by providing notice to Particle Network. Any use of or access to the SDK or API and/or Services in any manner whatsoever following a notice of modification of this Agreement shall constitute acceptance of the Agreement as so modified. If any part of this Agreement is held to be unenforceable for any reason, that part will be reformed only to the extent necessary to make it enforceable. No failure by Particle Network in exercising any right under this Agreement will constitute a waiver of that right. You may not assign or transfer any of your rights or obligations without Particle Network’s consent and any action or conduct in violation of the foregoing will be void and without effect. Particle Network may assign or transfer this Agreement.

• If you would like to report a vulnerability or have a security concern regarding our user-facing and developer-related services, SDK, API, infrastructure, and architecture etc., please e-mail [e-mail].

• The API and SDK were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto.