Helium Terms and Conditions

Effective Date: May 22, 2017

Terms & Conditions

These Terms and Conditions (this "Agreement"), apply to purchases of software, hardware, cloud services and related products from Helium Systems, Inc. This Agreement is effective as of the date you purchase any one of such elements (the "Effective Date"), and contains the terms and conditions upon which Helium makes such software, hardware, cloud services and related documentation available to you. In this Agreement "you", "your" or "Customer" means the individual, company or entity that has entered into this Agreement with Helium, and "we", "us", "our" or "Helium" means Helium Systems, Inc., and "party" and "parties" means you and/or us, as the context requires.

Helium and Customer agree as follows:

Products

This Agreement shall apply to and be effective upon Customer's purchase of any software, hardware, cloud services and related products Helium may make available from time to time through its online services (including without limitation the Helium web Store, or those of its affiliates ("Products"). Products may include but are not limited to (i) Helium's Element™ Access Point, (ii) Helium's Atom™ Development Board and devices, (iii) access to Helium's Helium Cloud™ data processing service (the "Service"), and (iv) Helium’s support packages.

Access to Service

During the Term, Helium grants Customer a personal, worldwide, non-exclusive, revocable and terminable (as set forth in Section 9), nontransferable, nonassignable license (without the right to sublicense) to access and use the Service, solely in the form made available by Helium to Customer from time to time. Customer acknowledges and agrees that sensor samples to be processed by the Service shall not exceed 500 bytes per sample. Helium will provide Customer with unique login credentials for each authorized user, which may only be used by a single authorized user. Customer is responsible for all use of the Service by any person using the login credentials. Helium may deactivate any login credentials for any suspected unauthorized use or any misuse of any Product. Customer's use of the Products, including without limitation the Service, is subject to Helium's Privacy Policy, which is available at helium.com/privacy, as well as to these Terms of Use.

Changes

Helium may, from time to time and without prior notice, add, delete or change the features or functionality of the Products, including but not limited to the Service, as we generally make such additions, deletions or changes available to our other customers. We may discontinue furnishing content or data from third parties to the extent such third-party content or data ceases to be incorporated into the Service for any reason.

Restrictions

Customer shall not, directly or indirectly, (a) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Product, or the rights granted to Customer with respect to any Product, (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Product, (c) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas, (d) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Product by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), or access or use any Service in order to build or support or assist a third party in building or supporting, products or services competitive to Helium or its products and services, (e) perform or disclose any benchmark or performance test of any Product or the Service, (f) remove, obscure or alter any proprietary notice on Products, (g) use the Service to collect, process or store financial or personal information, (h) use or permit the access to or use of any Product, including the Service, for any unlawful activity, including exporting in violation of applicable law, or (i) access or use the Product, Service or any other deliverable for any use other than the those authorized in this Agreement. Customer acknowledges and agrees that, other than Helium’s support packages and support through the Helium development community, Helium does not provide support for the Products.

Advertising Agencies

For clarity, if you are an advertising agency, your own internal use of any Product, including the Service, does not include use of the Product by or for any of your customers or by or for any other third party (including any sister agency).

Fees

Customer shall pay all fees in the manner specified by Helium on its web store.

Content and Data

a. Customer Content

All content or data received by a Product, or which Customer delivers into the Service or otherwise provided by Customer to Helium ("Customer Content") is and will remain Customer's exclusive property. Customer hereby grants Helium, during the Term, a worldwide, non-exclusive, revocable (as set forth in Section 9(c)), nontransferable, nonassignable (other than as set forth in Section 13), royalty-free license (without the right to sublicense) to access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Customer Content solely for purposes of providing the Products to Customer, and to improve the Products (including the Service), which license extends to any third party assisting Helium in providing the Service.

b. Helium Content

All content, software functionality or data made available to you through access or use of the Service or otherwise provided by Helium ("Helium Content"), is and will remain the exclusive property of Helium and its licensors. You may only use the Helium Content for your own internal use in connection with a Product.

Intellectual Property

a. Helium Intellectual Property

As between the parties, Helium owns and retains all right, title and interest in and to all of the Products, all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. To the extent that Customer acquires any right, title or interest in or to any Product (including without limitation the Service), any deliverable, or any intellectual property rights therein, Customer hereby assigns to Helium all such right, title and interest. Except for the licenses Helium expressly grants to Customer hereunder, Customer is not provided with any license or right to the Products or the intellectual property rights therein, whether by implication, estoppel or otherwise. Customer is not granted any right to use any Helium trademark, service mark, logo or trade name.

b. Feedback

Customer, its authorized users and its other employees and agents may (but are not required to) provide Helium with suggestions, comments or other feedback regarding the Products ("Feedback"). If Customer, its authorized users and its other employees and agents do provide Helium with Feedback, then Helium may, and you hereby grant Helium a license to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any product, technology, service, specification or other documentation.

Term and Termination

a. Term

The term of this Agreement starts on the Effective Date and continues until terminated in accordance with the terms of this Agreement ("Term").

b. Termination

This Agreement shall automatically terminate upon your failure to pay any fee Helium associates with a Product, including without limitation Helium's monthly fee for access to the Service. You may otherwise terminate this Agreement at any time by notice to Helium. You acknowledge and agree that Helium may retain data you have provided or produced in connection with your use of Helium's Products for period of 180 days following your termination of this Agreement.

c. Termination for Breach

In the event of a material breach by either party that is not cured within 30 days after receipt of written notice thereof from the other party, the non-breaching party may, by written notice to the breaching party, (i) terminate this Agreement, (ii) terminate or suspend the performance of any services hereunder, and (iii) pursue other legal and equitable rights and remedies to which it may be entitled. In addition, Helium may terminate the license hereunder immediately upon the breach by Customer of Sections 2, 4, 7, 8, 12 or 13 hereof. In addition, Helium may terminate the license hereunder immediately upon the breach by Customer of Helium’s Privacy Policy.

d. Immediate Termination

In addition to Helium’s other rights under this Agreement, Customer acknowledges and agrees that Helium shall have the right to immediately terminate Customer's access to the Service in the event that Customer fails to comply with the limitations on Service usage set forth in Section 2 above.

e. Effect of Termination

Except as set forth in this Agreement, in the event of termination of this Agreement, the rights and obligations hereunder will terminate immediately. Any payment or other obligation that has accrued as of such termination date will survive such termination. In the event of any termination of this Agreement any provision hereof required to enforce the parties' rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein.

Representations and Warranties

a. Mutual Representations and Warranties

Each party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action, and (ii) this Agreement is the legal, valid and binding obligation of it, enforceable against it in accordance with the Agreement's terms.

b. Customer Representations and Warranties

You represent, warrant and covenant that you have all rights and licenses necessary to provide the Customer Content to us and grant us the licenses set forth herein and that the Customer Content and the use of it as contemplated by this Agreement does not and will not infringe, misappropriate or violate any intellectual property rights of any third party, violate any right of privacy or publicity or breach any contract to which Customer is a party or bound.

Warranty Disclaimers and Limitation of Liability

(a) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10 ABOVE, (A) THE PRODUCTS, THE HELIUM CLOUD SERVICE, ANY OTHER DELIVERABLES AND HELIUM CONTENT ARE PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B) EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE PRODUCTS, SERVICES, DELIVERABLES AND HELIUM CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR THAT THEIR USE WILL PRODUCE ANY RESULTS, FINANCIAL OR OTHERWISE. HELIUM SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (A) FOR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HELIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FOR DAMAGES ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT IN THE AGGREGATE IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER PURSUANT TO THIS AGREEMENT.

(b) In certain circumstances Helium makes early and pre-production (alpha) software code (“Pre-production Code”) available to users of the Service. Pre-production Code is not finished code and may contain errors. The use of Pre-production Code may cause loss of data and other technical malfunctions. Pre-production Code is provided as-is, without warranty of any kind. Helium will use commercially reasonable efforts to mark any such code as being “Pre-Production”, “Test”, “Alpha”, or similar designation. By using Pre-production Code, Customer acknowledges and agrees that in addition to the disclaimers and limitations of warranty set forth in (a) above, Helium shall have no liability for, and Customer shall indemnify Helium with respect to, any and all claims that Customer’s use of such Pre-production Code resulted in damage to Customer or any third party. Customer further agrees that it shall use any such Pre-production Code only for its own internal testing and development efforts, and that Customer shall not make any Pre-production Code or portion thereof available to any third party.

Confidentiality

If the exchange of confidential information between Customer and Helium is already governed by a Mutual Non-Disclosure Agreement between the parties (the "NDA"), the terms of such NDA will govern all Confidential Information exchanged between you and us pursuant to this Agreement. If no such NDA is in place, then each recipient of Confidential Information under this Agreement shall (a) use and copy the Confidential Information only for purposes of performing its obligations under this Agreement, (b) hold the Confidential Information in strict confidence, and (c) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the recipient protects and safeguards its own confidential information (but not using less than a reasonable degree of care). The recipient may disclose that portion of the Confidential Information which, in the judgment of its counsel, the recipient is required to disclose by law, by regulation, or pursuant to the order or requirement of a court, administrative agency or other governmental body with proper jurisdiction; provided that the recipient notifies the disclosing party a reasonable time prior to making such disclosure and cooperates with the disclosing party's efforts to seek a protective order or otherwise prevent or restrict such disclosure. "Confidential Information" means all information disclosed by one party to the other that is designated, at the time of disclosure, as confidential or that is of a nature that would reasonably be considered confidential, and does not include information that the recipient can show (i) is known publicly through no breach of this Agreement, (ii) was in its possession free of any obligation of confidence at the time of disclosure, (iii) was received from a third party free to disclose such information without restriction, or (iv) was independently developed without using or referring to the information of the disclosing party or breaching this Agreement. Helium's Confidential Information includes without limitation the Helium Content and all information relating to Helium's Products and Services, and Customer's Confidential Information includes the Customer Content.

Assignment

This Agreement may not be assigned by either party without the prior written consent of the non-assigning party; except that Helium shall have the right to assign this Agreement to any of its affiliates or in connection with a merger or other business combination in which Helium is not the surviving entity or in connection with any sale of all or substantially all of the capital stock of Helium or the assets of Helium or its affiliates related to this Agreement. Any attempted assignment in violation of this provision is null and void.

Force Majeure

If either party is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, acts of our suppliers, or other events beyond our reasonable control, then we are relieved from our performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.

Modifications

We may revise this Agreement from time to time to better reflect: (a) changes to the law, (b) new regulatory requirements, (c) improvements or enhancements made to our Services. If an update affects your use of the Services or your legal rights as a user of our Services, we'll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. This updated Agreement will be effective no less than 30 days from when we notify you. If you don't agree to the updates we make, please cancel your account before they become effective. Where applicable, we'll offer you a prorated refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Agreement.

Miscellaneous

This Agreement is governed by the laws of the State of California, without regard to conflict of law rules. The UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties shall bring any disputes arising out of or related to this Agreement exclusively in a court located in San Francisco County, California and each party hereby submits to the personal jurisdiction of such courts. Each party is an independent contractor and neither party's personnel are employees or agents of the other party for any purpose whatsoever. Nothing hereunder will constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other. Headings are for convenience. No presumption is to operate in either party's favor as a result of who drafted this Agreement. For purposes of this Agreement, the words "include," "includes" and "including" are deemed to be followed by the words "without limitation," and the word "or" is not exclusive. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement. This Agreement is effective upon Customer's purchase of the Product. The parties may only amend this Agreement in writing. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement, this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement, and the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.