Terms of service

PURPLEAIR TERMS AND CONDITIONS
Updated July 18, 2022

Welcome to PurpleAir, the internet-connected air-quality sensor service. PurpleAir sells air-quality sensors (“Sensors”) that measure airborne particulate matter. The PurpleAir Service is a software as a service that allows you to monitor both your own PurpleAir Sensors, as well as information from the Sensors of other users over the internet.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. Your use of the Service signifies your agreement to the following terms and conditions and any policies referenced herein (collectively, the “Agreement”). The Agreement is a binding legal contract entered into by you and PurpleAir, Inc. (“PurpleAir”).

THE SENSORS. PurpleAir sells a number of different internet-connected air-quality Sensors on its website, www.purpleair.com (the “Site”). Sensors measure airborne particulate matter in real-time and transmit this information back to the Service via the internet.
1. Terms of Sensor Sale. In order to use the Service in its entirety, you must purchase the appropriate PurpleAir Sensor. PurpleAir solely determines what Sensors will be sold through the Site as well as all pricing discounts, offers, incentives, coupons and coupon codes that may be offered from time to time. For every order you place, you are (i) offering to purchase a product, (ii) representing that you are of legal age to enter and execute a legally binding contract in the United States, and (iii) representing that all information you provide to us in connection with such order is true and accurate including the method of payment(s) and payment instrument. The receipt by you of an order confirmation does not constitute a formal acceptance by PurpleAir. We retain the right to refuse any request to purchase made by you for any reason whatsoever.
2. Sensor Order Acceptance. Prior to accepting any order, PurpleAir reserves the right to verify any information you send to us. PurpleAir reserves the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from us. In its sole discretion, PurpleAir reserves the right to limit the number of items ordered and to refuse service to you without prior notification. In the event that an item lists an incorrect price, either due to typographical or other error, PurpleAir shall have the right to refuse or cancel any such order placed for the incorrect price, regardless of whether the order is being or has been processed. If payment has already been made or if your account has already been charged for the purchase and the order is canceled, PurpleAir shall credit your account in the amount of the incorrect price.
3. Prices and Limitations on Availability. PurpleAir makes every effort possible to display as accurately as possible the colors of our products that appear on the Site; however, the actual color you will see will depend on many factors, including your computer, and we cannot guarantee that your computer will accurately display our colors or sensor descriptors. Sensors are available while supplies last. All prices and products advertised are subject to change. All prices displayed in connection with the Service are quoted in U.S. dollars.
4. Risk of Loss and Title. THE RISK OF LOSS AND TITLE FOR SENSORS PURCHASED BY YOU PASS TO YOU UPON OUR DELIVERY OF THE PRODUCT(S) TO THE CARRIER.
5. Sensor Returns. In the event you desire to return a sensor(s), you have thirty (30) days from receipt of delivery to return the sensor(s) to PurpleAir.
6. Sensor Payment via Third Parties. PurpleAir uses Shopify Inc. ("Shopify") as its third-party electronic payment processing provider for payment services (e.g., card acceptance, merchant settlement, and related services) ("Payment Services") for payments related to the Service. By making use of some or all of these Payment Services on the Service, you agree to be bound by Shopify's terms and conditions (available at https://www.shopify.com/legal/terms) as well as its privacy policy (available at https://www.shopify.com/legal/privacy) and hereby consent and authorize us to delegate the authorizations and share the information you provide to us with our third-party electronic payment processing provider(s) to the extent required to provide the Payment Services to you.
THE SERVICE AND THE DATA.
1. The PurpleAir Service. The PurpleAir service (the “Service”) is a software as a service that allows you to monitor both your own PurpleAir Sensors, as well as information from the Sensors of other users of the Service (each a “User”) over the internet. The Service includes, but is not limited to, the PurpleAir Map, the PurpleAir API, and all services made available by www.purpleair.com; map.purpleair.com; api.purpleair.com; and the family of websites owned by PurpleAir.
2. The PurpleAir Map. The PurpleAir Map allows Users to monitor the Sensor information from their own Sensors, as well as from the public Sensors of other Users via a geographic map.
3. The PurpleAir API. The PurpleAir API allows Users to download and otherwise access both historical and realtime PurpleAir Sensor data (the “Data”) via an application programming interface. Use of the PurpleAir API, including but not limited to any rate limits you may be subject to, shall be governed by PurpleAir’s published, then-current API Fair Use Policy, a copy of which is attached hereto as Exhibit A. PurpleAir may modify the terms of the API Fair Use Policy at its sole discretion.
4. The PurpleAir Data. The PurpleAir Data includes all data collected by PurpleAir Sensors and all of its associated information, including but not limited to PurpleAir Sensor location information, PurpleAir Sensor names, and any other information collected by PurpleAir Sensors or provided by Users in conjunction with their use. PurpleAir Data includes, but is not limited to, real-time data, historical data, and data collected from sensors set to both private and public.
5. Private and Public Sensors. Each User may set each of their own Sensors to either public or private, either at registration time of the Sensor, or afterwards via Service settings. Public Sensor data shall be made available to all other Users of the Service. Private Sensor data shall be available only to the User to which the Sensor belongs and those that the User shares that data with. For the avoidance of doubt, data that has already been made public cannot be retracted, deleted, or otherwise modified. ALL SENSOR DATA IS PRIVATE BY DEFAULT.
  Sensor data collected and made available via the Service includes geographic location information corresponding to the likely location of each Sensor. This geographic location is extrapolated from Google’s wi-fi-based location services and the location information entered by each Sensor’s User. This geographic location may be calculated either on the Sensor-side or the Service’s servers. Due to the nature of such extrapolated geographic location information, such information is not personally identifiable.
6. Sharing of Sensor Data With Third Parties. Data collected by PurpleAir Sensors may only be shared with PurpleAir and third-parties approved of in writing by PurpleAir. Pre-approved third-parties are listed as available “Data Processors” in the Sensor registration process. You may not share PurpleAir Data to third-parties outside of those listed without the prior express written permission of PurpleAir.
7. Service Fees. Presently, the use of the Service is free with the exception of those who choose to purchase a PurpleAir Sensor in order to contribute data. PurpleAir may charge a fee to use the Services at its sole discretion. In the event the Service fee changes, PurpleAir will provide reasonable notice to you.
TERM AND TERMINATION.
1. Term. This Agreement will commence on the date you first access the PurpleAir website, purchase a Sensor, or access the Services, or access any PurpleAir Data, whichever is first; and shall continue for the duration that you make use of the Sensor, Services, Data, any Data Derivative, or the Licensee Product.
2. Termination. Notwithstanding the foregoing, PurpleAir may terminate this Agreement with you (by providing an email notice of such termination): (i) if you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement); (ii) if we believe we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (iii) if we no longer offer any of the Services you utilize; (iv) if you no longer agree to the terms and conditions of this Agreement; or (v) for any other reason or no reason, in our sole and absolute discretion. The termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to termination.
3. Survival. The following sections shall survive the termination of this Agreement for any reason: 3.3, 4.1, 4.2, 4.4, 4.6, 5, 6, 7, 8, 9, and 10. Further any provision that must survive to fulfill its essential purpose shall do so.
4. Termination of your API Key. We may terminate your API key at our sole discretion, including but not limited to, upon the termination of this Agreement for any reason or no reason, and upon your breach of any term or warranty of this Agreement.
OWNERSHIP AND LICENSE GRANTS.
1. Ownership. PurpleAir owns all worldwide right, title, and interest in and to the Services, all of their underlying technologies, all derivatives thereof, and all worldwide intellectual property rights therein. PurpleAir owns all worldwide right, title, and interest in and to allPurpleAir Data, including but not limited to any PurpleAir Data that serves as the pre-existing work upon which any Data Derivatives (as defined in Section 4.3.b below) are based upon.
  Except as expressly described herein, this Agreement does not grant you any intellectual property license or rights in or to the Services, the Data, any of their components, or any trademarks, service marks, or other intellectual property of PurpleAir, whether by implication, estoppel, or otherwise. To the extent that you create any Data Derivatives, all worldwide right, title, and interest in and to the PurpleAir Data that serves as the pre-existing work for such Data Derivatives, and all intellectual property rights therein, shall remain with PurpleAir.
  
  The PurpleAir Services and PurpleAir Data are collectively referred to herein as the “Products”.
2. 3rd Party Services and Marks. All rights with respect to the marks, trade names, and/or service names of any third-party reproduced in providing the Services shall remain with said third-party. Said marks are used solely in a descriptive manner to actually reference said third-party’s services.
3. License Grants. Subject to the terms and conditions herein, PurpleAir hereby grants to you the following non-exclusive, non-transferable, non-sublicensable, limited licenses:
  1. during the Term of the Agreement, to utilize the PurpleAir Products in your internal operations for the testing and development of your own service or product (the “Licensee Product”);
  2. during the Term of the Agreement, to copy, modify, merge, compile, or otherwise use PurpleAir Data with data owned by Licensee to enhance and otherwise create derivative works of the PurpleAir Data (the “Data Derivatives”), and to use the Data Derivatives in your internal operations solely for testing and development of the Licensee Product;
  3. until the termination or expiration of the Agreement to distribute or use the Licensee Product for any commercial purpose or in any manner intended to generate revenue, solely to End Users and subject to your provision of written notice thereof to PurpleAir; and
  4. to store a copy of all or any portion of the PurpleAir Data and Data Derivatives on one or more internal servers possessed or otherwise controlled by you, solely as necessary to exercise the license grants in subsections a. through c. above.
    “End Users” are your end users who will use the Licensee Product solely for their internal, non-commercial, non-public use. For the avoidance of doubt, End Users shall have no right to distribute the Licensee Product or any portion thereof, or otherwise share or distribute any results obtained therefrom.
    
    For the avoidance of doubt, and notwithstanding anything to the contrary herein, Licensee shall not distribute or otherwise make available the PurpleAir Data or the PurpleAir API to any third-party except as expressly authorized herein; and Licensee shall not distribute or otherwise make available the PurpleAir Data or Data Derivatives to any third-party except as incorporated in the Licensee Products. PurpleAir API calls shall be made solely by you and you shall not allow or otherwise enable any third-party to make PurpleAir API calls.
4. Grantback License. In order to prevent any exclusive intellectual property rights subsiding in any Derivative work or Improvement of the PurpleAir Products developed by you or on your behalf, or by any artificial intelligence algorithm developed thereby, including but not limited to any artificial intelligence algorithm(s) where the training data is PurpleAir Data or any Derivative thereof; or any output of any artificial intelligence algorithm(s) where the production data is PurpleAir Data or any Derivative thereof (collectively referred to herein as “Licensee Derivatives'') from limiting further development of the PurpleAir Products by PurpleAir (and its affiliates), you hereby grant to PurpleAir (and its affiliates), for the life of any patent, copyright, or other exclusive right granted to you in the Licensee Derivatives, a perpetual, worldwide, irrevocable, fully paid-up, fully transferable, non-exclusive, sublicensable (through multiple levels of sublicensees), license for PurpleAir (and its affiliates) to: a.) develop, have developed, make, have made, use, have used, sell, offer to sell, import, export and otherwise transfer, dispose of, or exploit any of PurpleAir’s and its affiliate’s data, products, services, methods or processes that may otherwise fall under such exclusive rights; and b.) use, copy, distribute, display, perform, modify, and otherwise create Derivative works from the PurpleAir Products in any manner that would otherwise infringe upon your exclusive rights in the Licensee Derivatives.
  For clarity, you will not be obligated to deliver any Licensee Derivatives to PurpleAir (or its affiliates).
  
  “Improvement” means a.) for copyrighted or copyrightable material, any abridgment, revision, translation, enhancement, improvement, modification, expansion, compilation or other form in which an existing work may be recast, transformed or adapted, b.) for patented or patentable material, any improvement thereof, or c.) for trade secrets, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret.
  
  “Derivative” means a work that is based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, condensation, compilation, or any other form in which such pre-existing work(s) may be recast, transformed, or adapted.
5. No Open Source Materials. In creating any Licensee Data Derivatives as allowed per the terms herein, Licensee shall not incorporate, derive from, or otherwise use any Open Source Materials (as defined below).
  “Open Source Materials” means any software or data that is licensed under terms that require as a condition of use, modification and/or distribution of a work: (i) the making available of source code or other materials preferred for modification, (ii) the granting of permission for creating derivative works, (iii) the reproduction of certain notices or license terms in derivative works or accompanying documentation, (iv) the non-assertion of patents or other intellectual property rights or granting of a royalty-free license to any party under intellectual property rights regarding the work and/or any work that contains, is combined with, requires or otherwise is based on the work; or (v) the source code or data is made publicly available under a license that does not require any manifestation of assent by the licensee but rather permits the licensee to use the software or data in accordance with and subject to the applicable terms and conditions, including without limitation, under the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), the BSD license, the MIT license, the Artistic License, the Mozilla Public License, the Common Public License, or the Sun Community Source License (SCSL).
6. Limitations. Licensee specifically understands and agrees that other than as specifically set forth in this Agreement, no rights are granted herein with respect to the PurpleAir Products, the “PurpleAir” trademark, or any other trademark(s), logo(s) or copyrights owned by PurpleAir. All such rights in and to said intellectual properties are reserved exclusively to PurpleAir for use and/or licensing as it deems appropriate to third party/ies of its choice.
  Except as otherwise expressly provided in this Agreement, you may not transfer, sublicense, or otherwise distribute the PurpleAir Products to any third party. You may not modify the PurpleAir API nor permit any third party to do so. You agree not to disassemble, decompile, reverse engineer, or create any derivative works from the PurpleAir API nor permit any third party to do so.
7. Restrictions. You shall not attempt to interfere with or disrupt the PurpleAir Products or attempt to gain access to any PurpleAir systems or networks that you do not have rightful access to. You shall not allow any third-party to use the PurpleAir Products other than your Authorized Developers for development on your behalf. You shall not: a.) rent, lease, or provide access to the PurpleAir Products on a time-share or service bureau basis; or b.) transfer any of your rights hereunder unless expressly allowed per the terms herein. You shall not make the PurpleAir Data available in raw form to any third parties, except your Authorized Developers for the purpose of developing Licensee Products. You shall not use the PurpleAir Products to create an air quality database or any other product that may reasonably be considered to be competitive to any service or product offered by PurpleAir without the prior written permission from PurpleAir.
  “Authorized Developer” means your employee, contractor, or consultant that is authorized by you to develop or assist in the development of the Licensee Products.
8. Attribution. Any distribution, display, or performance of the Licensee Products shall be accompanied by conspicuous attribution that meets the criteria set forth in the attribution guide at the following link: http://www.purpleair.com/attribution. Attribution requirements may vary depending on the nature of your use. Licensee Products are considered Data Derivatives (as defined in Section 4.3.b above) for the purposes of attribution. Notwithstanding the foregoing, the addition of validation or correction factors to the PurpleAir Data shall not be considered Data Derivatives for attribution purposes.
  PurpleAir hereby grants to you a limited, non-transferable, non-sublicensable, revocable license during the Term of the Agreement or the duration of your license to distribute Licensee Products, whichever is shorter, to use its trademarks, service marks, and logos (the “PurpleAir Marks”) solely as necessary to allow the foregoing.
9. Marketing. Subject to your prior written approval, PurpleAir may use your name, trademarks, and logos (collectively, the “Licensee Marks”) for the purposes of marketing PurpleAir and its Products, and you hereby grant to PurpleAir a non-exclusive, non-transferable (except in conjunction with an assignment of this Agreement), limited right to use the Licensee Marks for such use. All goodwill developed from the use of Licensee Marks will remain with you.Notwithstanding anything to the contrary herein, PurpleAir may disclose your use of the PurpleAir Products to other departments, divisions, and groups within your organization without your prior written approval.
  You may use the PurpleAir Marks for the purposes of marketing the Licensee Products subject to the prior written approval of PurpleAir in a duly executed written instrument.
YOUR USE OF THE SERVICE.
1. Age Requirement. The Services are available only to individuals who can form legally binding contracts under applicable law. The Services are only available to those that have reached the age of majority. If you are under such age, you can use this service only in conjunction with, and under the supervision of your parents or guardians.
2. Account Credentials. You shall use no less than reasonable efforts to maintain the security of your Service credentials, including but not limited to any API keys issued to you. You agree not to transfer your account to, or otherwise share any of your credentials, including but not limited to any API keys issued to you, with, any third-party. You shall be solely responsible for use of your credentials and/or your account by any third-party. You must notify PurpleAir upon becoming aware of any breach or suspected breach of the security of your account.
3. Accurate Information. You agree to keep your personal information accurate and complete. Misrepresentation of your identity or the ownership of the account information used with the Services shall be a material breach of the terms herein and may be a violation of applicable law.
4. Content; Appropriate Conduct. For purposes of this Agreement, “Content” shall mean any information that may be encountered and/or generated via the use of our Services. This includes but is not limited to photographs, written text including comments, sensor naming fields or other fillable fields, graphics, data files, messages, and device characteristics that may be uploaded to or disseminated through the Services. You hereby warrant and agree that you shall not: a.) use the Data or Services for any illegal or unauthorized purpose; b.) use the Data or Services in any way that violates any applicable law, regulation, legislation, or other applicable rules of any governing body; c.) modify, adapt, hack, or reverse engineer the Sensors or Services in any manner without prior written authorization by PurpleAir; d.) engage in any activities that would create a false association with the Services; e.) use any robot, spider, web crawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor our Services or any portion thereof without our prior written consent; f.) generate or make available Content that is unlawful, harmful, defamatory, tortious, abusive, invasive of one’s privacy, obscene (including but not limited to sexual, pornographic, or non-sexual nudity), vulgar, and/or objectionable as determined by PurpleAir (including using the means described to stalk, harass, or intimidate another); or g.) resell the Sensors or Services without prior written authorization to do so.
5. Third-Party Content and Services. You acknowledge and agree that content and links that you come across via the Services may be provided by third-parties and may include and point to content outside of PurpleAir’s control (“Third-Party Content”). PurpleAir shall have no liability whatsoever for any such Third-Party Content, or any third-party fees you may incur by accessing such Third-Party Content, and you hereby release PurpleAir from any claims related to or arising therefrom.
6. Other Use Restrictions. You agree that you will use the Services for your own internal use only. You will not: a.) allow third-parties to exploit the Services; b.) provide Services passwords or other login information to any third-party; c.) share non-public Services features or Data with any third-party; or d.) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services.
7. Consent to Messages. You hereby consent to continue to receive from PurpleAir, Services related messages, marketing, and/or advertising for additional services, events, affiliate products, and services through the mediums of electronic mail, printed mails, phone calls, text messages (carrier fees may apply), and/or social media messages. You may opt-out of future marketing and advertising from PurpleAir at any time through either express written notice, or by clicking on the applicable unsubscribe links contained in any such material.
8. Consent to Recording. You consent to the recording of any electronic or written correspondence and any or all telephone conversations between you, us and any of our Affiliates in connection with this Agreement or the Services and agree and understand that recordings may be submitted in evidence in any legal proceeding relating to this Agreement. For compliance and regulatory purposes, we reserve the right to keep an audit trail of all services and information we have provided to you.
9. Consent to Collection of Sensor Data. By using the Services and registering your Sensor(s) therein, you expressly consent to the collection by PurpleAir of any and all information made available by the Sensor, including but not limited to air-quality information and location information (the “Sensor Data”). All Sensor Data is the sole property of PurpleAir. PurpleAir may collect the Sensor Data generated by any registered Sensor so long as that Sensor remains registered on the Services.
CUSTOMER DATA AND PRIVACY.
1. Use of Personal Data. Personally identifiable information collected about you by this Service, is treated in accordance with the Privacy Policy which is hereby incorporated into this Agreement by reference. If you do not agree to this Agreement or the Privacy Policy, you must cease use of the Services.
2. Aggregate & Anonymized Data. Notwithstanding the provisions above, PurpleAir may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to information that is aggregated, processed, or otherwise anonymized in such a way that that is no longer personally identifiable.
WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY.
1. Warranty Disclaimer. The Sensors, Service, and Data are provided to you without warranty of any kind, whether express or implied. PURPLEAIR SPECIFICALLY EXCLUDES AND DISCLAIMS WARRANTIES OF NONINFRINGEMENT, TITLE, THE WARRANTY OF MERCHANTABILITY, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. PURPLEAIR, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICE, SENSORS, OR DATA: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PURPLEAIR, WHETHER THOUGH THE SERVICES OR NOT, SHALL CREATE ANY WARRANTY.
2. Other Disclaimer (Default Settings). WHEN YOU INSTALL, SETUP OR USE THE SENSORS AND SERVICE YOU ARE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE INCLUDING BUT NOT LIMITED TO PRIVATE AND PUBLIC SENSOR DATA SETTINGS AS DESCRIBED IN SECTION 2.2 ABOVE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR SENSORS AND SERVICE AND ANY CONNECTED EQUIPMENT OR SYSTEMS INCLUDING BUT NOT LIMITED TO UNINTENDED RELEASE OF YOUR SENSOR DATA TO THE PUBLIC DOMAIN. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE SENSORS AND SERVICE, AND SETTING OR CHANGING DEFAULTS.
3. Emergency or Healthcare Related Use. PurpleAir disclaims all responsibility for the use of its Sensors, Service, or Data in any form or through any third-party to evaluate, interpret, predict, or diagnose any health indication or underlying medical condition. PurpleAir also disclaims all responsibility for the use of its Sensors, Service, or Data in any form or through any third-party to evaluate, interpret, predict, estimate, or determine the scope or the necessary response to an emergency such as an environmental hazard or wildfire, or in any other manner requiring failure-free performance.
  YOU ACKNOWLEDGE AND AGREE THAT PURPLEAIR, THIRD-PARTIES, AND THEIR OFFICERS AND EMPLOYEES, SHALL NOT BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), ARISING FROM OR RELATING TO THE USE OF PURPLEAIR SENSORS, SERVICES, OR DATA IN A HEALTH OR EMERGENCY CONTEXT, AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION. THESE LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.
  
  Any use of the Sensors, Service, or Data in a Licensee Product in a health or emergency context shall require the End User of the Licensee Product to agree that PurpleAir, third-parties, and their officers and employees, shall not be held liable for any claim, damage, loss, fine, penalty or cost (including, without limitation, attorneys; fees) arising from or relating to such use; and shall require such End Users to waive any and all such claims or causes of action. Such use shall also be accompanied by conspicuous notice that the Licensee Product does not warrant the accuracy or availability of any service or information provided in a health or emergency context.
4. Damages Limitation. IN NO EVENT SHALL PURPLEAIR BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUES, LOST SAVINGS, COSTS OF CAPITAL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DOWNTIME COSTS, LOSS OR IMPAIRMENT OF DATA AND OTHER BUSINESS LOSS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER PURPLEAIR KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
5. Limitation of Liability. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF PURPLEAIR TO YOU ON WHATEVER BASIS ARISING FROM OR RELATED TO THE DATA, SERVICE, OR SENSORS, EXCEED ALL AMOUNTS RECEIVED BY PURPLEAIR FROM YOU IN THE TWELVE (12) MONTH PERIOD PRECEDING THE ACTION GIVING RISE TO THE CLAIM. YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 7.4 SHALL APPLY EVEN IF PURPLEAIR IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF PURPLEAIR OR GROSS NEGLIGENCE OF PURPLEAIR IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
6. Risk Allocation. The provisions herein allocate risks of loss or failure between you and PurpleAir. The provisions contained in this Agreement reflect this allocation of risk and the disclaimer and limitations of liability contained herein.
RIGHTS OF PURPLEAIR.
1. Changes to the Service. PurpleAir may, at its sole discretion, change or remove some or all of the Service at any time, change the Data, or modify the Sensors. PurpleAir reserves the right to interrupt the Service with or without prior notice for any reason or no reason. PurpleAir reserves the right to charge a fee for the Service and/or the Data. You agree that PurpleAir will not be liable to you for any loss of availability of the Service, interruption of the Service, change to the Data, delay, or failure to perform.
2. Change to the Agreement. PurpleAir reserves the right to amend this Agreement at any time. If amendments constitute a material change to the Agreement, to be determined at the sole discretion of PurpleAir, PurpleAir will notify you via email or via a conspicuous notice on the Service or the PurpleAir website.
3. Refusal of Service. PurpleAir reserves the right to refuse service to anyone for any reason at any time. PurpleAir may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service and the Data without notice and liability for any reason, including if in PurpleAir’s sole determination you violate any provision of this Agreement, or for no reason.
4. Trademarks. All PurpleAir graphics, logos, designs, page headers, button icons, scripts, and service names are registered or unregistered trademarks or service marks of PurpleAir. PurpleAir reserves all rights in said trademarks and service marks and no rights therein are granted or transferred hereunder. You shall not use any of PurpleAir’s trademarks or service marks, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
INDEMNIFICATION.
1. Indemnity. YOU AGREE TO INDEMNIFY AND HOLD PURPLEAIR AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO YOUR ACCESS OF AND/OR USE OF THE SERVICES, ONE OR MORE SENSORS, THE DATA, ANY DATA DERIVATIVE, OR ANY LICENSEE PRODUCT; YOUR VIOLATION OF ANY LAW, OR THE RIGHTS OF ANY THIRD-PARTY; OR YOUR BREACH OF ANY TERM OR WARRANTY WITHIN THIS AGREEMENT.
  “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
GENERAL.
1. Relationship Between Parties. Neither party shall be deemed to be an employee, agent or partner of the other in connection with this Agreement. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of the other party. The Parties shall be and remain independent contractors with respect to this Agreement.
2. Governing Law. This Agreement shall in all respects be interpreted, construed in accordance with and governed by the laws of the State of Utah. The Parties specifically exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable.
3. Venue and Jurisdiction Provisions. Subject to the dispute resolution clause in Section 10.17 below, in the event of any litigation between the Parties, the Parties agree that the sole and exclusive venue and jurisdiction for any such action shall be in the courts of competent jurisdiction located in Utah. The Parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the Parties for any dispute arising out of this Agreement.
4. Severability. In the event that any one or more of the provisions of this Agreement is for any reason held to be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
5. Force Majeure. Neither party will be liable for any failure to perform due to unforeseen circumstances or causes beyond such party’s reasonable control, including, without limitation, acts of God, war, riot, acts of civil or military authorities, fire, flood, accident, strikes, inability to secure communication or transportation facilities or labor or materials. In the event of a force majeure event, such party’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
6. Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes all proposals, all prior agreements, commitments, oral or written, and all negotiations, conversations or discussions between the Parties relating to this Agreement.
7. Modifications. Except as otherwise allowed per the terms of this Agreement, this Agreement may be modified only by a writing signed by each party.
8. Headings. Headings included in this Agreement are for convenience only and are not to be used to interpret the provisions of the Agreement between the Parties.
9. Assignment. You may not assign or delegate the rights and obligations of this Agreement without the prior express written permission of PurpleAir. PurpleAir may unilaterally assign or delegate the rights and obligations of this Agreement at its sole discretion. The terms of this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
10. Waiver. The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.
11. Benefit. This Agreement is made for the benefit of each of the Parties and not for the benefit of any other persons.
12. Attorneys’ Fees. In any litigation or arbitration between the Parties, the prevailing party shall be entitled to reasonable attorney fees and all costs incurred in connection with such proceedings.
13. No Presumption. There shall be no presumption applied against any party on the ground that such party was responsible for preparing this Agreement or any part of it.
14. Conflict with Terms of Service or Other Policies. Should any conflict arise between this Agreement or any other policy documents, this Agreement shall prevail.
15. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
16. DMCA Notices. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by PurpleAir infringe upon your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information as required by 17 USC § 512(c)(3)(A): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow PurpleAir to locate the material on the site; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send PurpleAir a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent in writing to PurpleAir, Inc., 12411 S 265 W Ste B, Draper, UT 84020. Subject: Copyright Notice. Please be aware that there are penalties for false claims under the DMCA.
17. Dispute Resolution. You agree to notify PurpleAir of any potential disputes. If we are not able to resolve your claims within 60 days, you may seek relief through arbitration as set forth below.
  Any and all claims, except for those for which Utahcourts shall have jurisdiction per the terms above, will be resolved by binding arbitration, rather than in court. This includes any claims you assert against us, our subsidiaries, users, or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules.
  
  Any and all proceedings to resolve claims will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. An arbitration decision may be confirmed by any court with competent jurisdiction.
18. Export Control(s). The use of the Services may be subject to import and export laws of the United States and other countries. You agree and acknowledge that you will comply with all import and export laws and regulations. Specifically, you warrant and represent that the Services, its related software, and the Sensors may not be exported or re-exported a.) into any U.S. embargoed countries, or b.) to anyone on the US Treasury Department’s restricted entity list. As a user of the services, you warrant and represent that you are not located in any such country or on any such list. This assurance and communication shall survive termination of this Agreement.
19. Contact Information. If you have any questions, concerns, or complaints about our Services or anything under this Agreement or other Agreements with us, please contact us at the following email address or telephone number:
  Email: contact@purpleair.com
  Phone: 800-474-0696
  Mailing Address:
  PurpleAir, Inc.
  12411 S 265 W, Ste B
  Draper, UT 84020

EXHIBIT A

API FAIR USE POLICY

Your use of the PurpleAir API is governed by this API Fair Use Policy. This API Fair Use Policy may be updated periodically and is subject to change at PurpleAir’s sole discretion. Violation of this policy shall be considered a material breach of the PurpleAir Terms and Conditions.

Use Limits. Use limits are designed to ensure service availability and will generally not affect your ability to consume data for any number of sensors you choose. Notwithstanding the foregoing, PurpleAir may limit the volume or rate of your PurpleAir API calls, or disable your access to the PurpleAir API at its discretion, including but not limited to in any instance where: a.) your use causes a degradation in performance of the PurpleAir API or PurpleAir Service for other Users or is otherwise heavier than use in the ordinary course; b.) your use constitutes scraping of PurpleAir data; or c.) you are using the PurpleAir Data or PurpleAir API in any manner not allowed pursuant to the PurpleAir Terms and Conditions. In addition to the foregoing, fixed usage rates may be imposed on your use of the PurpleAir API.
Service Levels. While PurpleAir makes a concerted effort to have reliable service uptime and acceptable service response times, service availability and response times are in no way guaranteed and may fluctuate due to factors both within and outside of PurpleAir’s control.
API Documentation. Please see the API Documentation at https://api.purpleair.com/ for additional information on rate limits, including suggestions for obtaining data while remaining within rate limits. Additional resources regarding such limits can also be found on the PurpleAir Community Forum at https://community.purpleair.com/.