Terms of Service – Trial
Effective Date: 18/11/2023
Particula GmbH, Reinachstr. 57, 80995 Munich (“Particula“) offers its customers a web-based access to its online portal for the collection, evaluation, and analysis of crypto values, tokens, and other digitalized assets (collectively “Digital Assets“; online portal hereinafter referred to as “Platform“) as part of a Software-as-a-Service solution. This agreement regulates the contractual relationship between Particula and the customer regarding the use of the platform.
1. DEFINITIONS AND INTERPRETATIONS
1.1 The definitions and rules of interpretation set out in Annex 1 apply to this agreement.
2. COMMENCEMENT AND DURATION
2.1 This agreement begins with the effective date and continues for the trial period unless terminated by a notice from the customer. This agreement automatically ends with the expiration of the trial period.
3. TRIAL VERSION AND SERVICES OF THE PARTICULA PLATFORM
3.1 Particula hereby grants the customer a non-exclusive, non-transferable, and revocable right to use and access the Particula platform and all information provided via the Particula platform exclusively for this purpose and to allow test users to use and access it for the customer’s internal business purposes (the “Particula Platform Services”).
3.2 The customer may allow test users to access and use the Particula platform services up to the test user limit, always in accordance with the terms of this agreement.
4.1 Nothing in this agreement or the use of the Particula platform services by the customer or a test user or any information constitutes advice of any kind and all information should be used for informational purposes only. Particula does not guarantee the completeness, accuracy, timeliness, or availability of information and assumes no responsibility for errors or omissions (however caused) in the information. Particula sources data from third-party sources and does not conduct an audit or independent verification of these data. All Particula token ratings and other analyses, evaluations, and other statements contained in the information and the Particula platform services provided to the customer are expressions of opinion as of the specified date, do not constitute statements of fact, and do not represent recommendations to buy, hold, or sell tokenized values or to make investment decisions.
4.2 The information and the Particula platform services should not be relied upon and are not a substitute for the use of the independent skills and judgment of the customer and a test user in connection with making investments or other business decisions. Under no circumstances shall Particula or Particula employees be liable to any party in respect of investments, other business decisions, or advice made or given by the customer, test users, or third parties, or for calculations incurred when using or relying on information (even if Particula was previously advised of the possibility of such liability).
4.3 Particula makes no warranty, representation, obligation, or consent that the use of the Particula platform services and/or information by the customer or test user meets the customer’s requirements, nor that the use of the Particula platform services or evidence from the provision of information will bring special benefits in implementation.
5. CUSTOMER OBLIGATIONS
5.1 In connection with the Particula platform services, the customer must not do the following and must ensure that its test users do not do it unless expressly permitted in this agreement or otherwise agreed in writing with Particula:
a) to access, resell, develop, provide, or market the Particula platform services or other intellectual property rights of Particula in whole or in part, to develop a product or to offer a service that replicates, competes with, or is substantially similar to a part of the Particula platform services;
b) prevent any unauthorized access to the Particula platform services or their unauthorized use and immediately notify Particula of any such unauthorized access or use.
5.2 Notwithstanding any other provisions in this agreement, the customer acknowledges and agrees that it is responsible for compliance with this agreement and its terms by each test user.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The customer acknowledges and agrees that Particula and its licensors own all intellectual property rights in the Particula platform and information (including, but not limited to, all Particula token ratings, criteria, methods, summary reports, risk factor descriptions, and data analyses), software and documentation, including all subsequent copies as well as modifications, adaptations, supplements, and additions thereto, regardless of who created them (together, the “Particula IPR”). Unless expressly stated otherwise in this agreement, the customer has no rights to or in intellectual property rights to Particula’s intellectual property rights.
7. DATA PROTECTION
7.1 The provisions of Annex 1 apply to all processing of personal data in connection with this test agreement. If applicable, the provisions of Annex 1 shall also continue after termination of this agreement.
8.1 The recipient must protect all confidential information provided to it by the discloser (whether orally, in writing, or in any other form) using generally accepted industry standards, but in no case by reasonable measures. The recipient may use confidential information only in connection with this agreement and to the extent necessary for the purposes of this agreement. The recipient may grant its test users access to confidential information only on a strict “need-to-know” basis. The recipient shall ensure that each of its test users is obliged to treat all confidential information confidentially in accordance with the standards required in this agreement.
8.2 The confidentiality obligations of the recipient do not apply to information: (a) that was already known to it at the time of disclosure without restrictions of disclosure; (b) that are in the public domain or publicly accessible unless as a result of a breach of this agreement; (c) that are provided to it by a third party who is not subject to such a confidentiality obligation; or (d) documented by contemporary written records independently developed by it. The recipient may disclose confidential information to its legal advisors to protect its own legitimate interests or to comply with legal or regulatory requirements. If a court, regulatory authority, or legal process requires the recipient to disclose information that falls under this confidentiality obligation, the recipient may make such disclosure, provided that the recipient to the extent legally permissible: (a) immediately informs the discloser of such a requirement; (b) cooperates with the discloser at the discloser’s expense to respond to the requirement; and (c) makes all reasonable efforts to consult with the discloser to agree on the timing, manner, and extent of the disclosure. If the recipient is unable to inform the discloser before disclosing the confidential information, it must (to the extent legally permissible) immediately thereafter provide the discloser in writing with comprehensive information about the disclosure and the disclosed confidential information.
8.3 Subject to the confidentiality provisions of this Clause 8, the customer shall not prevent Particula from disclosing the existence, but not the content, of this agreement for its own marketing purposes.
8.4 All confidential information remains the property of the discloser, and the discloser reserves all rights to its confidential information. Nothing in this agreement or the disclosures provided for in this agreement serves (unless expressly agreed otherwise in this agreement) to transfer intellectual property rights to the confidential information or to act as a grant of licenses or rights of use.
8.5 Each party acknowledges that damages alone would not be a sufficient remedy if the other party breaches the provisions of this Clause 8. Accordingly, it is agreed that each party is entitled to seek damages without proof of special damages an injunction or other preliminary legal remedy for any imminent or actual breach of this Clause 8 by the other party, without prejudice to any other rights and remedies that may be available to this first party.
8.6 This Clause 8 shall remain in full force and effect notwithstanding any termination of this agreement.
9. LIMITATION OF LIABILITY
9.1 Nothing in this agreement excludes or limits a party’s liability to the other for:
a) Death or personal injury caused by negligence;
b) Fraud or fraudulent misrepresentation by us or its employees or other third parties on its behalf; or
c) any other liability that cannot be excluded or limited by law.
9.2 Subject to Clause 9.1, neither Particula nor the customer shall be liable for tort (including negligence), breach of statutory duty, contracts, misrepresentation (whether innocent or negligent), restitution, or otherwise for:
a) Content of third parties accessed via the Particula platform services, or
b) in respect of Particula, the customer’s use and reliance on the information or the Particula platform services,
in each case, however, arising in or in connection with this agreement and even if Particula or the customer (as the case may be) were aware of the possibility that such loss or damage could arise.
9.3 Subject to Clause 9.1, the total liability of each party under this agreement in respect of claims (including any compensation) is limited to 1000€.
10.1 Upon termination or expiration of this Agreement for any reason, all rights and licenses granted under this Agreement shall immediately cease, and the Customer and all Test Users must immediately cease any use of the Particula Platform Services and all other intellectual property rights of Particula in the possession of the Customer.
10.2 Particula may immediately terminate the Customer’s and any Test User’s right of access and use of the Particula Platform Services if Particula reasonably determines that the Customer or a Test User has violated the Acceptable Use Policy.
10.3 Particula may terminate this Agreement at any time by written notice to the Customer with a notice period of at least one day.
11.1 Neither party shall, during the term of the contract or for a period of six months after termination or expiration of the contract, directly or indirectly:
a) solicit or attempt to solicit personnel from the other party; or
b) employ or otherwise engage personnel of the other party (except in a junior administrative or secretarial function).
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to its subject matter. It supersedes and extinguishes all prior agreements, collateral warranties, side contracts, statements, representations and assurances made by or on behalf of the parties, whether oral or written, in respect to that subject matter. Nothing in this Agreement limits or excludes liability for fraud or fraudulent misrepresentation.
13.1 Subject to clause 1.1, any notice required to be given under this Agreement shall be in writing in the English language and delivered personally, sent by pre-paid first-class or registered mail, or by email to the postal address or email address (as applicable) of the other party stated in the Test Service Conditions, or such other address as may have been notified by that party for such purposes pursuant to this clause 13.
13.2 A notice delivered personally will be deemed to have been received when delivered (or if delivery is not during business hours, at 9 am (GMT) on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class mail or by registered mail will be deemed to have been received at the time it would have been delivered in the normal course of post. A notice sent by email will be deemed to have been received at the time and date of transmission stated on the copy retained by the sender (or, if delivery is not during business hours, at 9:00 am (GMT) on the first subsequent business day). Delivery.
14.1 Force Majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including, but not limited to, strikes, lockouts or other industrial disputes (whether involving the workforce of Particula or any other party), failure of a utility service or transport or telecommunications network or the Internet, act of God, war, riot, civil commotion, global pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14.2 No Waiver. No failure or delay by a party in exercising any right, power or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right, power or remedy, nor shall it preclude or restrict its further exercise. If a party waives a breach of any provision of this Agreement, this shall not be considered a waiver of a subsequent breach of that provision or a breach of another provision.
14.3 Assignment. Without the prior written consent of Particula, the Customer is not permitted to assign, transfer, charge, subcontract or otherwise deal with all or any of its rights or obligations under this Agreement. Particula may at any time assign, transfer, charge, subcontract or otherwise deal with all or any of its obligations under this Agreement.
14.4 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties or their duly authorized representatives.
14.5 Conflicts. In the event of a conflict between the Test Access Conditions and the Particula Conditions and any deviations agreed pursuant to section 13.5, the conflict shall be resolved by prioritizing as follows: (a) first the Test Access Conditions, (b) secondly the written version; and (c) thirdly the Particula Conditions.
14.6 Authority. The parties declare that they each have the right, authority and capacity and have taken all necessary steps to execute and deliver this Agreement and to exercise their rights and fulfill their obligations under this Agreement.
15. THIRD PARTY RIGHTS
15.1 A person who is not a party to this Agreement shall not have any right to enforce any of its provisions under any legislation that would otherwise entitle them to do so, nor shall they have any right to claim reimbursement of losses, liabilities, expenses or costs arising from or in connection with this Agreement or any Particula Platform Services. The consent of third parties is not required for a modification (including a release or compromise in whole or in part of a liability) or termination of this Agreement.
16. APPLICABLE LAW AND JURISDICTION
16.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
16.2 The parties irrevocably agree that the courts of Munich, Germany, shall have exclusive jurisdiction to settle any disputes or claims that arise out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Definitions and Interpretation
1.1 In this Agreement, the following definitions apply:
||The rating for a tokenized value, the token issuer, or the token itself, determined with Particula’s proprietary rating framework and provided via the Particula Platform Services.
||Employees, directors, senior staff, agents, and subcontractors of Particula.
||Particula’s proprietary valuation, analysis, and information platform that provides access to the Particula Token Rating and other qualitative and quantitative analyses; and other information and documentation on a non-exhaustive selection of tokenized values.
||Any day that is not a Saturday, Sunday, or public holiday in Munich, Germany.
||The start date specified in the Trial Access Conditions.
||All information or data, in whatever form or medium of storage, now or at any later time after the date of this Agreement, in the possession or under the control of the Discloser. This includes a wide range of information, from trade secrets to customer lists and the terms of this Agreement.
||As defined in Appendix 1.
|Data Protection Legislation
||The German GDPR, the Data Protection Act 2018, and any other applicable laws for the protection of personal data and privacy that may exist in a relevant jurisdiction.
||A party that discloses its Confidential Information to the Recipient.
||All documents, materials, instructions, specifications, or descriptions provided to the Customer by Particula from time to time in connection with this Agreement and made accessible via the Particula Platform Services.
||All data, records, reports, results, documents, papers, and all other outputs or materials created by or on behalf of Particula in the performance of this Agreement and provided under this Agreement.
|Intellectual Property Rights
||(a) Patents, inventions, designs, copyrights and related rights, database rights, know-how and Confidential Information, trademarks (whether registered or not) and associated goodwill, trade names (whether registered or not) and application rights; (b) all other similar or equivalent rights worldwide that currently exist or are recognized in the future; and (c) all applications, extensions, and renewals in respect of such rights.
||A party to this Agreement, as set out in the Trial Access Conditions (and “Parties” shall be construed accordingly).
||A party that receives Confidential Information from the Discloser.
||Any software owned by or licensed to Particula and that is part of or used in the provision of Particula Services.
||Refers to the period set out in the Trial Access Conditions.
|Trial User Limit
||The permissible number of Trial Users who may have access to the Particula Platform, as set out in the Trial Access Conditions.
||Individual employees, agents, or contractors of the Customer who are authorized by the Customer to use the Particula Platform Services.
2.1 The following rules of interpretation apply in this Agreement:
and appendix headings are for convenience only and do not affect the interpretation of this Agreement.
b) A reference to written or in writing includes email.
c) References to clauses refer to the clauses of the Particula Conditions.
d) All expressions introduced by the terms “including”, “includes”, “in particular” or similar expressions are illustrative only and do not limit the sense of the words preceding those terms.