PARTICL
SERVICES AGREEMENT

LUZ DATA TERMS OF SERVICE

‍Last Revised on October 25, 2022

‍These Terms of Service (these “Terms”) govern your access and use of (i) the e-commerce data enhancement platform (the “Platform”) operated or provided by or on behalf of Luz Data, Inc. DBA Particl. (“Particl”, “we” or “us”) and made available through our website at particl.com (together with any successor site, the “Website”), (ii) all related support and other professional services performed by or on behalf of Luz Data in connection with your use of the Platform, and (iii) any data, applications, content, materials, tools, features and functionality offered on or through our Website and/or Platform (collectively, the “Services”).

Please read these Terms carefully, as they include important information about your legal rights. By (i) clicking a box indicating acceptance of these Terms, (ii) submitting an order form for paid Services or (iii) accessing and/or using any free portion of the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services. For purposes of these Terms, “you” and “your” means you as the user of the Services. You must be 18 years of age or older and reside in the United States or any of its territories to use the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity's behalf.

1. ACCESS TO SERVICES
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1.1 Account. To use certain of the paid Services, you need to create an account through the Website (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password.   Notwithstanding the foregoing, you may share your Account information with employees or contractors performing services on your behalf (your “Authorized Users”); provided that you are responsible for all acts or omissions of your Authorized Users and otherwise in connection with your Account. You must immediately notify us at legal@particl.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. 

1.2 Access. Subject to and conditioned upon your compliance with these Terms, Luz Data hereby grants to you, a limited, non-exclusive, non-assignable, non-sublicensable, non-transferrable, revocable right to access the Services solely for your internal business purposes. 

1.3 API Access.  Subject to additional fees, we may make available through the Services access to certain application program interfaces (“APIs”) which may be used to access certain data.  An API may be accessed via a code provided by Luz Data (the “API Key”).  If Luz Data provides an API Key to you, then your access to the API shall be considered a Service hereunder and subject to and conditioned upon your compliance with these Terms, Luz Data hereby grants to you, a limited, non-exclusive, non-assignable, non-sublicensable, non-transferrable, revocable license to access and use the API and to use the data provided through the API (the “Luz Data”) solely for Client’s internal business purposes.  

1.4 Restrictions On Your Use of the Services. You may not do any of the following and you may not permit others (including your Authorized Users) to do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
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(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Services available to any third party (other than your Authorized Users);
(b) use the Services in the operation of a service bureau or similar service for third parties;
(c) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;
(d) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
(e) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(f) use the Services to build a competitive product or service;
(g) use, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(h) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;
(i) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(j) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(k) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same; 
(l) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(m) use the Services for illegal, harassing, unethical, or disruptive purposes;
(n) violate any applicable law or regulation in connection with your access to or use of the Services;
(o) or access or use the Services in any way not expressly permitted by these Terms.  

1.5 Modifications; Updates and Interruptions. We reserve the right to modify or update the Services at any time.  If any such modifications or updates will materially affect your use of the Services, then we will provide reasonable notice to you relating to such modifications or updates.  Furthermore, you agree and acknowledge that your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Luz Data, in its reasonable discretion, may elect to take.

2. Your Data

2.1 As between the parties, you or your licensors own all right, title and interest in and to the data you and your Authorized Users submit to the Services, including all intellectual property rights therein (“Your Data”). Your Data may include data regarding your products, services and other online offerings made available through Shopify if you integrate such data with the Services (“Your Shopify Data”). We will not sell or otherwise provide Your Shopify Data to third parties except where necessary to provide the Services to you or with your permission.  However, we may process and analyse Your Data, including Your Shopify Data and other information relating to your use of the Services and use such information on an aggregated, de-identified basis.  Accordingly, you hereby grant Luz Data a non-exclusive, transferable, sublicenseable, license to use, copy, modify, transmit, display, and prepare derivative works of Your Data to (a) provide the Services to you and (b) to improve our products and services, including the Services, provided that any use pursuant to his clause (b) shall be on an anonymized basis. The license in Section 2.1(a) shall be for the Subscription Term and the license in Section 2.1(b) shall be perpetual. 

2.2 You represent and warrant to Luz Data that: (a)  you own or have the necessary rights to Your Data to provide Your Data to us under these Terms and grant us the foregoing license to Your Data; (b) you have collected the Luz Data in accordance with all applicable laws, (c) you have provided all notices and obtained all consents required to provide Your Data to Luz Data; (d) the collection and transfer of Your Data to Luz Data complies with any applicable privacy policies; and (e) our use of Your Data in accordance with these Terms will not infringe any third party’s rights, including any intellectual property rights. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Data. We shall not be responsible or liable for the deletion, corruption, destruction, damage, loss or failure to store Your Data.

3. Ownership and Content 

3.1 Ownership of the Services. The Services, including their "look and feel" (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that Luz Data and/or its licensors own all right, title and interest in and to the Services, including the Platform, Website and all Luz  Data (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests.  We and our licensors reserve all rights in connection with the Services and its content (other than Your Data), including, without limitation, the exclusive right to create derivative works. 
3.2 Ownership of Trademarks. Luz Data’s name, Luz Data’s logo and all related names, logos, product and service names, designs and slogans are trademarks of Luz Data or its affiliates or licensors.  Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.  
3.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Luz Data, and Luz Data may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Luz Data any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback. 

4. Subscription; Fees & Payment
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4.1 Order. If you desire to access our paid Services, you will submit an order form through our Website or coordinate with a sales representative to establish the applicable Services you are purchasing, the pricing information and the subscription plan, billing term and subscription term. Our sales representative will email you an order form submission, if you did not already submit an order form, for you to complete and submit payment information. We (or our third party payment processor) will acknowledge receipt and acceptance of your order by e-mail.

4.2 Subscription Payment. If you subscribe to any of our paid Services, you agree to pay us the applicable fees and taxes set forth in your submitted order form in U.S. Dollars. You will be billed for the Services in accordance with the billing cycle set forth in your order form or invoice receipt. You agree that (a) we or our third party payment processor may store and continue billing your designated payment method (e.g. credit card) to avoid interruption of the Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Any such price changes will not affect your current subscription term, and the agreed-upon pricing in the Order Form will remain in effect for the duration of the current term. All subscriptions are payable in accordance with the payment terms in effect at the time the subscription becomes payable. Payment must be made by the method of our request, which may be credit card, debit card, ACH Direct Debit, or other means that we may make available. Subscriptions will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.

4.3 Late Payment. If any payment becomes past due, we may charge you a late payment charge equal to the lesser of (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum rate permitted under applicable law on the past due balance. You shall reimburse us for all reasonable costs and expenses incident to the collection of overdue amounts hereunder, including but not limited to reasonable attorneys’ fees.

4.4 Suspension of Service and Acceleration. If any charge owing by Client under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Particl to charge to Client’s credit card), Particl may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Particl will give Client at least 10 days’ prior notice that its account is overdue

4.5 Subscription Term. You agree that if you purchase a subscription, your subscription will be for the term referenced on your order form or invoice receipt (the “Initial Subscription Term”).

4.6 Subscription Renewals. After the Initial Subscription Term, your subscription will automatically renew for successive terms equal to the length of the Initial Subscription Term (each, a “Renewal Term” and together with the Initial Subscription Term, the “Subscription Term) your payment method will automatically be charged in accordance with Section 4.2. Any changes or modifications to your Subscription Term may only be made upon mutual agreement between you and Particl. By renewing your subscription, you agree to the then-current pricing for the Services, which may be higher than the pricing in your initial Order Form or any previous Renewal Terms.

4.7 Subscription Cancellations. You may not terminate your Subscription Term except in accordance with this Section 4.7. You may cancel your subscription thirty (30) days before the start of the next Renewal Term by doing the following: notifying your account manager via email or call, emailing billing@particl.com with your request, or submitting a request via the billing portal of our payment processor or our Website

4.8 No Subscription Refunds. Except as expressly set forth in these Terms, payments for any subscriptions to the Services are non-refundable and there are no credits for partially used periods. Following any cancellation by you, however, you will continue to have access to the paid Services through the end of the Subscription Term for which payment has already been made.
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5. Third-Party Services and Materials 
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5.1 Use of Third-Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party websites. By using the Services, you acknowledge and agree that Luz Data is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.  

6. Confidential Information. 

6.1 Any information that either you provide to Luz Data or that Luz Data provides to you that is identified at the time of disclosure as confidential or, given the circumstances of disclosure or the nature of the information, reasonably should be considered to be confidential will be “Confidential Information” of the applicable disclosing party (the “Disclosing Party”). For clarity, all information regarding the Services and related documentation will be deemed the Confidential Information of Luz Data.  

6.2 Each of Luz Data and you, as the receiving party of Confidential Information of the other (the “Receiving Party”) will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or enforce its rights under these Terms. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, to its employees, representatives, or contractors  who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

6.3 This Section 6 will not prohibit or limit either Party’s use of information (i) rightfully known to it prior to receiving it from the Disclosing Party, (ii) independently developed by or for it without use of or access to the other Party’s Confidential Information, (iii) permissibly acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of these Terms.  

7. Indemnification

7.1 You agree that you shall defend, indemnify and hold Luz Data Entities harmless from and against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) (“Losses”) incurred by Luz Data Entities arising out of or in connection with any third party claim, action or lawsuit (each a “Claim”) against the Luz Data Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your access to or use of the Services; and (c) your negligence or wilful misconduct.

8. Disclaimers, Limitations of Liability 

8.1 Disclaimers. Your access to and use of the Services are at your own risk. While we use commercially reasonable efforts to provide accurate data, we cannot guarantee its accuracy or availability on an ongoing basis. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, Luz Data, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Luz Data Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Luz Data Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from Luz Data Entities or through the Services, will create any warranty or representation not expressly made herein.

8.2 Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 7), and YOUR breach of Section 1.4,  TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL EITHER LUZ DATA OR YOU BE LIABLE TO THE OTHER (A) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER  DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) EXCEPT FOR AMOUNTS DUE UNDER YOUR SUBSCRIPTION TO PAID SERVICES, FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU TO LUZ DATA FOR THE SERVICES IN THE  TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. Additional Provisions

9.1 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Utah without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction. All disputes and litigation regarding these Terms and matters connected with its performance will be subject to the exclusive jurisdiction of the federal courts in Utah, if such court has personal and subject matter jurisdiction of the litigation, or if not, the courts of the State of Utah.  You hereby consent and submit to the exclusive jurisdiction of such courts in connection with any such legal proceeding. If a dispute arising under these Terms results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.

9.2 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms.  If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes.  The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.  
9.3 Termination of License and Your Account. If you breach any of the provisions of these Terms, Luz Data may terminate all licenses granted herein immediately upon written notice to you. In the event of Account deletion for any reason, you will no longer have access to Your Data and Luz Data may, but is not obligated to, delete Your Data. Luz Data shall not be responsible for the failure to delete or deletion of Your Data.  All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by Luz Data or you. Termination will not limit any of Luz Data’s other rights or remedies at law or in equity. 

9.4 Privacy Policy. Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy located at https://www.particl.com/legal/privacy-policy.

9.5 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Luz Data  for which monetary damages would not be an adequate remedy and Luz Data shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

9.6 Force Majeure.  Except for the obligation to pay money, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, pandemics, epidemics, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.

9.7 Publicity.  You hereby grant Luz Data a non-exclusive license to use and display your name and logo to identify you as a customer of Luz Data and otherwise for marketing and promotional purposes.

9.8 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by Luz Data but may not be assigned by you without the prior express written consent of Luz Data. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. 

9.9 How to Contact Us.  You may contact us regarding the Services or these Terms at:  Particl, Inc., 1300 W 11400 S STE 100, South Jordan, UT 84095 Attention: Andrew Kenney, by phone at: 801-891-3112, or by e-mail at legal@particl.com.