Terms of Service
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used or otherwise defined.
- “Access Protocols” means the credentials, passwords, access codes, or other relevant procedures provided by Xanadu to Subscriber to access the Services.
- “Authorized User” means any individual or entity who is authorized by Subscriber to access the Services pursuant to Subscriber’s rights under this Agreement.
- “Documentation” means the technical materials provided by Xanadu to Subscriber in hard copy or electronic form, including via online URL or link, describing the use and operation of the Services.
- “Feedback” shall have the meaning specified in Section 4.2.
- “Fees” shall have the meaning specified in Section 5.1.
- “Order Form” means an order form based on the template in Exhibit A that references this Agreement and is signed by both parties. The terms of the Order Form are hereby incorporated by reference and shall be included in the term “Agreement” as used herein.
- “Platform” means Xanadu’s propriety quantum cloud platform, as further described in an applicable Order Form.
- “Services” means the services ordered by Subscriber through an Order Form, and all software, interfaces, tools, utilities, application programming interfaces (APIs) and other technologies (and any related intellectual property) relating thereto that is provided by or on behalf of Xanadu and used in connection with the services, including, if set forth on an applicable Order Form, the Platform.
- “Subscriber Data” means the data, code, instructions, and information submitted, posted, or displayed by Subscriber for execution through the Platform
- “Subscription Term” means the term of an Order Form, as specified in the Order Form.
- “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Xanadu as required for use of the Services. The current requirements (if any) are described in the Order Form.
- “Term” shall have the meaning specified in Section 10.1.
2. PROVISION OF SERVICES
- Access. Subject to Subscriber’s compliance with the terms of this Agreement, including payment of applicable fees, Xanadu will provide Subscriber with access to the Services in accordance with this Agreement. As soon as reasonably practicable after the Effective Date, Xanadu shall provide to Subscriber the Access Protocols to allow Subscriber and Authorized Users, if permitted in accordance with this Agreement, to access the Services.
- Service Level Agreement. Xanadu will use commercially reasonable efforts to keep the Services operational and available to Subscriber but Xanadu offers no guarantee of availability of the Services.
3. LICENSE GRANT FOR THE SERVICES
- License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, Xanadu grants to Subscriber a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 13.5) license during the applicable Subscription Term, (a) solely for Subscriber’s internal business purposes i) to access and use the Services; and (i) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Services. All such use shall be in strict compliance with the Documentation and (b) to permit Authorized Users to access and use the Services in accordance with Section 7.2 and this Agreement.
- Restrictions. Subscriber agrees that it will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; © sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any third party except as expressly allowed herein; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) create derivative works based on the Services or Documentation; (f) access or use the Services for the purpose of developing or creating a competitive service or product; (g) grant any access to the Services to any individuals or entities set forth on Xanadu’s entity blacklist as provided by Xanadu and amended from time to time. Nothing herein shall be construed to require Xanadu to provide for, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Subscriber or any Authorized User to provide access from the internet to the Services; or (h) use of any performance, benchmarking, or other comparative analyses in advertising or publicity for competing systems. Nothing herein shall be construed to require Xanadu to provide for, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Subscriber or any Authorized User to provide access from the internet to the Services.
4. PROPRIETARY RIGHTS
- Xanadu Materials. Except for the licenses expressly granted by Xanadu under this Agreement, Xanadu owns and retains all right, title and interest (including, but not limited to, all copyright and patent rights) in the Services and Documentation, and no other license or right of any kind (express or implied) is granted to Subscriber by Xanadu in or to the Services, Documentation, quantum hardware device, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the software used to operate the Services.
- Feedback. Subscriber hereby grants Xanadu a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate in the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Services (“Feedback”).
- Usage Data. The parties acknowledge and agree that Xanadu may collect usage data relating to Subscriber’s use of the Services. Xanadu will own all rights in such data and may use such data for any purpose (including, but not limited to, providing the Services, and troubleshooting, auditing, and improving the Services), provided that if Xanadu provides such data to a third party it will aggregate and anonymize such data so that Subscriber cannot be identified as the source of such data.
- Third Party Materials. As a part of the Service, Subscriber may have access to materials that are hosted by another party. Subscriber agrees that it is not possible for Xanadu to monitor such materials and that Subscriber’s access to these materials is at Subscriber’s risk.
- Open Source Software. Certain items of software may be provided to Subscriber with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 3.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Xanadu makes such Open Source Software, and Xanadu’s modifications to that Open Source Software, available by written request at the notice address specified on the Order Form.
- Fees and Payment. Subscriber shall pay Xanadu the fees set forth in the applicable Order Form (the “Fees”). Unless otherwise stated in the applicable Order Form, Xanadu will invoice Subscriber for the Fees monthly in advance and all undisputed amounts payable to Xanadu shall be due thirty (30) days from the date of invoice. Non-payment or late payment of undisputed fees is a material breach of this Agreement. If any undisputed amount is past due more than thirty (30) days, Subscriber shall pay interest on the overdue balance at the rate of 1% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. Xanadu shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Xanadu’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees or the provision of the Services to Subscriber. Subscriber will make all payments of Fees to Xanadu in USD and free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Xanadu will be Subscriber’s sole responsibility, and Subscriber will provide Xanadu with official receipts issued by the appropriate taxing authority, or such other evidence as the Xanadu may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend Xanadu in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
6. SUBSCRIBER DATA AND MATERIALS
- License; Ownership. Subscriber hereby grants Xanadu a non-exclusive, worldwide, royalty-free and fully-paid license to use the Subscriber Data as necessary for purposes of providing the Services. As between the parties, Subscriber owns all right, title and interest in the Subscriber Data.
- Responsibility. Subscriber is solely responsible for the Subscriber Data and Subscriber’s applications, technology, and systems used in connection with the Services. Subscriber shall ensure that the Subscriber Data and Subscriber’s applications, technology, and systems used in connection with the Services comply with this Agreement and the Documentation. Xanadu reserves the right to review Subscriber Data, applications, technology, and systems for such compliance. Subscriber is also responsible for obtaining and maintaining any required consents necessary to permit the processing of Subscriber Data under this Agreement. Xanadu is not obligated to back up any Subscriber Data; the Subscriber is solely responsible for creating backup copies of any Subscriber Data and any results of the Services obtained by Subscriber, at Subscriber’s sole cost and expense. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data.
- Warranty. Subscriber represents and warrants that (a) Subscriber has all necessary rights (including the necessary rights from any end users) to grant Xanadu the licenses set forth herein, and (b) the Subscriber Data shall not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, unlawful, or otherwise objectionable; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Xanadu’s system or data; or (v) otherwise violate any privacy or other right of any third party.
7. SUBSCRIBER RESPONSIBILITIES
- Assistance. Subscriber will provide the information and assistance (if any) specified in the applicable Order Form to enable Xanadu to provide the Services to Subscriber. Subscriber must maintain the Supported Environment (if any) described in the Order Form.
- Authorized Users. Subject to the terms and conditions of this Agreement, Subscriber may permit Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. Each Authorized User must have a unique Access Protocol granted by Xanadu, and Access Protocols cannot be shared or used by more than one Authorized User at a time. Subscriber is solely responsible for maintaining the confidentiality of Access Protocols issued to or on behalf of Subscriber, and Subscriber (not Xanadu) will be liable for any activities undertaken, or omissions made, by anyone using Subscriber’s Access Protocols. Subscriber will immediately notify Xanadu of any unauthorized use of its Access Protocols, any breach of security relating to the Services known to Subscriber, and any breach of the terms of this Agreement by any Authorized Users. Subscriber may obtain additional Access Protocols from Xanadu by following the process set forth by Xanadu. Notwithstanding anything set forth herein (a) Subscriber shall not provide any Access Protocols to certain specific individuals or entities identified by Xanadu (which list may be updated from time to time by Xanadu in its sole discretion), (b) Authorized Users’ rights to the Services do not exceed Subscriber’s, as granted pursuant to this Agreement, © Authorized Users are not permitted to license or sublicense access to the Services to any additional users, individuals, or entities, and (d) all Authorized Users’ use of the Services is subject to all the limits and restrictions set forth herein and all applicable Order Forms. Xanadu may require Authorized Users to accept and agree to certain terms and conditions before receiving access to or use of the Services. For the avoidance of doubt, all use of the Services by Authorized Users (or pursuant to Access Protocols issued to Authorized Users) shall be calculated as part of Subscriber’s job and sample allotments for the Services, or any other usage limitations, set forth on an applicable Order Form, as if such use was made by Subscriber itself.
8. WARRANTY DISCLAIMER
THE PARTIES ACKNOWLEDGE THAT THE PLATFORM AND SERVICES ARE EXPERIMENTAL IN NATURE AND THAT THE DOCUMENTATION, PLATFORM AND SERVICES ARE PROVIDED “AS IS.” XANADU MAKES NO (AND HEREBY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. XANADU DOES NOT WARRANT THAT ANY ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
9. LIMITATION OF LIABILITY
- Limits on Liability. IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER; AND (B) EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. TERM AND TERMINATION
- Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and, unless earlier terminated under Section 10.2, shall continue until all Order Forms have expired or been terminated.
- Termination. Xanadu may terminate this Agreement and/or any applicable Order Form immediately for convenience upon written notice to the Subscriber. Either party may terminate this Agreement and/or any applicable Order Form immediately upon written notice to the other party if the other party materially breaches this Agreement or an Order Form and fails to cure such breach within (30) days after its receipt of written notice of such breach.
- Effect of Termination. Immediately upon termination of this Agreement or any Order Form Subscriber shall cease to use the applicable Services. Termination shall not relieve Subscriber’s obligation to pay all undisputed charges accrued before the effective date of termination. Sections 1, 3.2, 4, 5, 6.1 (last sentence only), 6.2, 6.3, 8, 9, 10.3, 12, and 13 will survive the expiration or termination of this Agreement.
If requested by Xanadu, Subscriber agrees to cooperate in good faith with Xanadu on a press release following execution of this Agreement and agrees to allow Xanadu to list (using Subscriber’s name and/or Subscriber’s logo, as determined by Xanadu) Subscriber as a customer on Xanadu’s website.
12. GOVERNING LAW AND VENUE
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in New York, New York, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York, New York. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.
- Subcontractors. Xanadu may subcontract this Agreement or any services or obligations hereunder to any third party. Notwithstanding any such performance through a subcontractor, Xanadu shall not be relieved of its performance or obligations under this Agreement. Xanadu shall be responsible for each of its subcontractor’s full and timely performance, and the acts and omissions of each such subcontractor within the scope of its agency with Xanadu shall be deemed and treated as the acts and omissions of Xanadu itself. Xanadu shall also be responsible for compensating its subcontractors.
- Independent Contractors. The parties are independent contractors and nothing in this Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
- Entire Agreement. This Agreement, together with the Order Forms and the attached Exhibits, contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. This Agreement, and any Order Form, may be modified only by a written amendment executed by an authorized representative of each party. In the event of a conflict between the terms in an Order Form and this Agreement, the terms contained in this Agreement shall control unless otherwise expressly stated in the Order Form.
- Severability. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.
- Assignment. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation, reorganization or sale of substantially all of its assets or stock related to this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
- Force Majeure. Xanadu shall not be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, any failure, disruptions or issues related to any third party services or acts, or any acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes.
- Export Control. The use of the Services is subject to U.S. export control laws and may be subject to similar regulations in other countries. Subscriber agrees to comply with all such laws.
- Remedies. Except as expressly set forth herein, the parties’ rights and remedies under this Agreement are cumulative.
- Notice. Any notice given under this Agreement shall be in writing and shall be effective (i) upon receipt or refusal if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; or (ii) sent via U.S. mail, postage prepaid, certified mail return receipt requested, when addressed to the address set forth below (or to such other address that a party may specify in a notice given under this Section 13.9).
- No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Waivers. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the waiving party.
- Section Headings. Section headings are for convenience only, and shall not be used to interpret this Agreement.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.