THIS CUSTOMER AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN D-WAVE COMMERCIAL INC. (“D-WAVE”) AND YOU OR THE COMPANY OR ENTITY YOU REPRESENT (“CUSTOMER”) AND GOVERNS YOUR ACQUISITION AND USE OF THE SERVICES.
YOU AGREE TO THE TERMS OF THIS AGREEMENT WHEN YOU CLICK A BOX INDICATING YOUR ACCEPTANCE, WHEN YOU EXECUTE AN ORDER OR OTHER AGREEMENT THAT REFERENCES THIS DOCUMENT OR WHEN YOU FIRST USE THE SERVICES, WHICHEVER OCCURS FIRST. THIS AGREEMENT TAKES EFFECT AT THAT TIME (THE “EFFECTIVE DATE”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.
THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER (AT SECTION 11.9) THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES. PLEASE READ IT CAREFULLY.
YOU MUST BE AT LEAST 18 YEARS OLD TO EXECUTE AN ORDER AND TO USE THE SERVICES, AND IF YOU ARE UNDER THE AGE OF 18 YOU MUST NOT EXECUTE AN ORDER OR USE THE SERVICES.
THIS AGREEMENT WAS LAST UPDATED ON September 21, 2018.
Capitalized terms used in this Agreement will have the meaning given to them in Section 12 or elsewhere in this Agreement.
1.1 Services. Subject to the terms of this Agreement and the applicable Orders, D-Wave will provide to Customer the Services ordered by Customer in an Order. Customer may access and use such Services subject to the terms of this Agreement and the applicable Orders.
1.1 Changes to Services. D-Wave may change, discontinue or remove functionality of any or all of the Services at any time.
2. CUSTOMER RESPONSIBILITIES
2.1 Customer Responsibilities. Customer will: (a) be responsible for Users’ compliance with this Agreement, Documentation and Orders; (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer Data was acquired and Customer’s use of Customer Data with the Services (including that all necessary consents have been obtained); (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify D-Wave promptly of any such unauthorized access or use; and (d) use Services only in accordance with this Agreement, the Documentation, the applicable Orders and applicable laws and government regulations.
2.2 Responsibility for Account and Token. Except to the extent caused by D-Wave’s breach of this Agreement: (a) Customer is responsible for all activities that occur under Customer’s account or using Customer’s access token; and (b) D-Wave is not responsible for unauthorized access to Customer’s account or use of Customer’s access token. Customer may not share Customer’s access token or password except with its employees and agents.
2.3 Security and Customer Equipment. Customer is responsible for obtaining and maintaining all equipment, network connections and other systems required to access and use the Services. Customer is responsible for implementing security measures and taking all appropriate action to secure and protect Customer’s account, access tokens and use of the Services in a manner that will provide appropriate security and protection.
2.4 Responsibility for Customer Data. Except as specifically requested by D-Wave as part of the account set-up process, Customer will not submit or make available to D-Wave any information or data that is subject to regulation under any law, including but not limited to personal information, personal data, personally identifiable information, health information, or banking information.
3. OPEN ACCESS PROGRAM
3.1 Applicability of Terms. This Section 3 applies only when Customer is a Community Developer as defined herein.
3.2 Gratis Access. D-Wave may offer the Services to Customer at no charge. If Customer agrees to receive the Services at no charge, Customer is considered a “Community Developer”. For clarity, if a completed Order includes at least one Service for a fee, Customer is not considered a Community Developer in respect of any of the Services included in the completed Order.
3.3 Libre Software. All Customer Software authored by Customer (including its employees and agents, as applicable) for use directly or indirectly in connection with the Services must be licensed under an Open Source License and its source code must be made publicly available. Upon request from D-Wave, Customer will provide information and assistance reasonably requested by D-Wave, such as a GitHub ID, in order for D-Wave to verify Customer’s compliance with this Section 3.3. In the event that Customer does not expressly grant an Open Source License in Customer Software, Customer will (and hereby does) grant a license to the Customer Software under the Apache License version 2.0. The parties affirm that a Community Developer’s promise to grant an Open Source License, in combination with the other promises provided herein, is good and valuable consideration sufficient to form this binding Agreement.
3.4 Supporting Development. D-Wave may improve the Services based on Customer’s use of the Services. In particular:
- “Feedback” includes modifications or improvements to any D-Wave IP that Customer (or Customer’s employees or agents) conceive or make (i) during the Term of this Agreement or (ii) using D-Wave’s Confidential Information; and
- “Anonymized Collected Data” includes anonymized Customer Data, notwithstanding anything to the contrary in Section 5.4.
4. SERVICE OFFERINGS AND TERMS
4.1 Service Offerings. D-Wave will provide, and Customer may access and use, only those Services that are expressly included in a completed Order. Such Services may include one or more of the following:
- Computing Services: Access and use of D-Wave computing resources in the amount, and subject to the additional terms as set out in the applicable Order (the “Computing Services”). Unless expressly specified otherwise in the applicable Order, the type of computing resource (e.g., traditional, quantum or hybrid) as well as the characteristics of the computing resource (e.g. number of qubits, topology, connectivity, features) used to perform the Computing Services for Customer may be changed by D-Wave in its sole discretion.
- Software: Use of the D-Wave Software.
- Customer Support: On-line, telephone or other forms of customer support.
- Documentation: Access to D-Wave’s standard Documentation applicable to the Services.
- Community Forum: Access to the D-Wave community forum (the “Community Forum”), subject to the additional terms and guidelines disclosed during sign-up/registration for the Community Forum and any associated code of conduct. The Community Forum is made available in D-Wave’s in sole discretion and access may be suspended, revoked, limited or terminated by D-Wave at any time.
4.2 Additional Services. D-Wave and Customer may also agree to additional services (including professional services) which are mutually agreed to and expressly set out in an executed Order. Any such additional services are deemed to be Services hereunder and are subject to the terms of this Agreement and any additional terms (“Additional Terms”) specific to such additional services set out in the applicable Order. In the event of any inconsistency between this Agreement and the Additional Terms, the Additional Terms will control.
4.3 Usage. The Services are subject to usage limits, including the limits and quantities set out in the Orders and Documentation (e.g. number of API calls, number of results, number of computing systems or computing equipment, units of time). Customer acknowledges that D-Wave may monitor Customer’s usage of the Services and if Customer exceeds the applicable usage limits then Customer may be required to purchase additional resources or services. If the necessary additional resources or services are not purchased by Customer then D-Wave may suspend Customer’s access to the Services. Where the usage limit for Computing Services is set out in units of time (such as hours), D-Wave will log use on a “per minute” basis or on such other basis as D-Wave may determine from time to time in its sole discretion. Unused usage allowances may not be carried over from one month to another.
4.4 Prohibited Uses. Except with D-Wave’s prior written consent, which may be withheld by D-Wave in its sole discretion, Customer will not engage, directly or indirectly, in any of the following acts (the “Prohibited Uses”):
- decompile, extract, translate, decrypt, disassemble, or otherwise reverse engineer, create improvements, modifications or derivative works of, any portion of the D-Wave Software or any other D-Wave IP, or attempt to do any of the foregoing, except to the extent that such activity is expressly permitted by applicable law despite this contractual prohibition on such activity, in which case Customer will give D-Wave a detailed, written notice at least 30 days prior to engaging in such activity that describes the nature and extent of the contemplated activity;
- permit any lien, security interest or other encumbrance to attach to Customer’s rights under this Agreement;
- remove, alter, add, or obscure any intellectual property or other proprietary notice or other notice included in the D-Wave IP or otherwise displayed in connection with the Services;
- sell, rent, lease, distribute, sublicense, time share, provide service bureau services based on, or similarly exploit the Services (including the D-Wave Software);
- provide, as a principal purpose of the Customer Software (as reasonably determined by D-Wave), the same or similar functions as the Services (including the D-Wave Software) or use the Customer Software to compete with the products or businesses of D-Wave, including by providing wrapper access for the Service (including the D-Wave Software) to third parties;
- use any portion of the Services or D-Wave IP for any unlawful, fraudulent, illegal or inappropriate purpose (including in connection with gambling, obscenity, pornography, violence, misappropriation, unauthorized access or interference, viruses or harmful code, harassment, unsolicited or deceptive messages, or evading filters) or to disrupt, damage, interfere with or access in an unauthorized manner any server, network or other property or service of any person or entity;
- use the Services to send commercial, fraudulent, obscene, defamatory, or illegal communications to any third party; or
- use the Services, D-Wave Software, or Documentation in connection with any inherently dangerous application, including any application that could result in death, personal injury, catastrophic damage or mass destruction.
D-Wave may immediately suspend Customer’s access to the Services in the event of any breach by a User of this Section 4.4.
4.5 Export Compliance. Customer acknowledges that the Services and D-Wave Software and related documentation and/or technical data (a) originate in Canada or the United States, and are subject to the export control laws, rules, regulations, and restrictions thereof, including the Export Administration Regulations of the U.S. Department of Commerce, (b) may have been transferred to you from another country that has additional export regulations (together the “Export Controls”). Customer agrees to use the Services and/or D-Wave Software, Documentation and/or related technical data in accordance with the Export Controls, and shall not export, re-export, or transfer in any manner said items in part or in whole in violation of the Export Controls. Customer understands it is solely responsible for obtaining all necessary licenses or authorizations relating to exporting the Services and other items described herein, and will not export such without D-Wave’s permission and in compliance with this article. Customer will not export to (a) any country subject to a United States or Canadian embargo, (b) a national or resident of any country subject to a United States or Canadian embargo, (c) any person or entity to which export is prohibited by the country from which the Customer received the Services, D-Wave Software, Documentation and/or related technical data, or (d) anyone who is engaged in activities that may be prohibited by the Export Controls.
5. CONFIDENTIALITY, PRIVACY, AND COLLECTED DATA
5.1 Customer’s Confidentiality Obligation. Customer will: (a) hold all Confidential Information in confidence; (b) not use or copy such Confidential Information except for purposes of and as permitted by this Agreement; (c) not disclose such Confidential Information except to its directors, officers, employees or agents who have a need to know such information for purposes of and as permitted by this Agreement. Customer agrees to use the same means it uses to protect its own confidential information of a like nature, but in any event, not less than reasonable means, taking into consideration the sensitivity and nature of the Confidential Information in question, to prevent the disclosure of the Confidential Information to third parties. Customer will be relieved from its obligations under this Section 5.1: (i) to the extent D-Wave gives its prior written consent; or (ii) to the extent necessary to comply with applicable laws or regulations, or judicial or governmental order, provided that Customer uses commercially reasonable efforts to provide prior written notice of such disclosure (to the extent such disclosure is permitted by law and is not required to be made immediately) to D-Wave to afford D-Wave the opportunity to seek a protective order. Customer will promptly notify D-Wave in writing of any unpermitted disclosure or unpermitted use of any Confidential Information of which Customer becomes aware.
5.2 D-Wave Confidential Information. Notwithstanding any other provision of this Agreement, regardless of whether they contain restrictive markings indicating the confidential nature thereof or have been identified as Confidential Information prior to disclosure, all of the following will constitute Confidential Information: (a) the D-Wave Software; and (b) passwords, access codes, tokens or any other credentials for accessing any D-Wave site, server, software or service.
5.3 Return of Confidential Information. Upon the written request of D-Wave, Customer will return all Confidential Information in its possession or confirm in writing that it has destroyed such Confidential Information save and except such Confidential Information required by law to be kept.
5.4 Collected Data. D-Wave may collect Customer Data and other information arising from Customer’s access or use of the Services, including usage statistics, unique identifiers, associated IP addresses, version numbers of relevant software, and information on which tools and services are being used in connection with the Services (the “Collected Data”). Such collection may involve various means, including cookies and other tracking technologies. D-Wave may use such Collected Data to provide the Services (including for security and authentication purposes) and Customer consents to such use. D-Wave will not use or disclose Collected Data other than as necessary to provide the Services. Notwithstanding the foregoing, D-Wave may anonymize the Collected Data, excluding Customer Data (“Anonymized Collected Data”), and may use, retain and disclose the Anonymized Collected Data for any purpose including to further develop and improve D-Wave’s products and services.
5.6 Remedies. Customer agrees that D-Wave may be irreparably injured by a breach of this Section 5 and that D-Wave may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches of this Section 5 and to enforce specifically the terms and provisions hereof in any action instituted in any court having subject matter jurisdiction, in addition to any other remedy to which D-Wave may be entitled at law or in equity in the event of any breach of Section 5. Such remedies will not be deemed to be the exclusive remedies for a breach of Section 5 but will be in addition to all other remedies available at law or in equity.
5.7 Security. D-Wave will implement reasonable and appropriate measures designed to help you secure Customer Data against accidental or unlawful loss, access or disclosure. This provision does not limit Section 10 or any of Customer’s obligations under this Agreement.
6. INTELLECTUAL PROPERTY
6.1 D-Wave IP. Customer acknowledges and agrees that this is a contract for services and not for goods or products and, except as expressly set out in this Agreement, D-Wave retains all ownership rights, title and interests in the Services (and all parts thereof, including the D-Wave Software), Documentation, Anonymized Collected Data, and any other materials and technology developed or provided by or on behalf of D-Wave in the course of performing the Services, and all Intellectual Property Rights therein (the “D-Wave IP”). Subject to the terms of this Agreement, D-Wave grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license during the Term: (a) to use the D-Wave Software solely for the purpose of using the Services (including using the Services to offer products and/or services to third parties), subject to the terms of any end-user license agreement distributed with such D-Wave Software; and (b) to access and use any other D-Wave IP made available to Customer solely in accordance with this Agreement and solely in connection with Customer’s permitted use of the Services.
6.2 Customer IP. Except as expressly set out in this Agreement, D-Wave obtains no rights from Customer under this Agreement to Customer’s intellectual property (“Customer IP”), including any Customer Data. Customer grants to D-Wave a limited, irrevocable, non-exclusive, sublicensable (solely to D-Wave’s suppliers and affiliates performing or supporting the Services hereunder), non-transferrable license during the Term to use Customer IP to provide the Services. Customer represents, warrants and covenants that it or its licensors have the necessary consents, rights, title and interest in the Customer IP to grant the rights set out in this Agreement.
6.3 Feedback. If Customer provides any feedback, suggestions or recommendations for improvements, additions or changes to the Services (“Feedback”) then D-Wave will be entitled to use the Feedback without restriction and Customer grants to D-Wave an unlimited, non-exclusive, perpetual, royalty-free irrevocable, sublicensable, transferrable and worldwide license to use the Feedback for any purpose.
6.4 Third Party Software. The D-Wave Software may include third-party software to which a third-party license applies and, if applicable, Customer must agree to such license prior to use.
7. US FEDERAL GOVERNMENT LICENSE
7.1 US Federal Government License. This Section 7.1 applies only when Customer is the United States government or an agency thereof. The D-Wave Software and other D-Wave IP licensed hereunder were developed at private expense and constitute and/or embody trade secrets or published copyrighted software. By accepting delivery of the software, the government hereby agrees that this software and the related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227- 7202-1 through 227-7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in DFARS 227-7202-1(a) and 227-7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (Alt III), as applicable. The terms and conditions of this Agreement will pertain to the government’s use and disclosure of the software, and will supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government’s minimum needs or is inconsistent in any respect with federal procurement law, the government agrees to make no use of the Services or D-Wave IP. The foregoing provision will be deemed updated as necessary to reference successor provisions.
8.1 Fees. The fees payable by Customer for the Services (the “Fees”) are set out in the applicable Order. Unless otherwise expressly specified, all amounts are in US dollars.
8.2 Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (“Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If D-Wave has a legal obligation to pay or collect Taxes for which Customer is responsible under this Section 8.2, D-Wave will invoice Customer and Customer will pay that amount unless Customer provides D-Wave with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.3 Invoicing and Payment. Unless otherwise expressly specified in the applicable Order, Customer will pay all Fees to D-Wave in advance at the frequency specified in the applicable Order. Customer is responsible for providing complete and accurate billing and payment information to D-Wave along with each Order, and for notifying D-Wave of any changes to such information.
8.4 Overdue Charges. If any amount due is not received by D-Wave by the applicable due date, then, without limiting D-Wave’s rights or remedies hereunder or at law or equity: (a) the overdue charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (or the maximum rate permitted by law, whichever is lower); and (b) D-Wave may suspend the provision of Services until the overdue amount is paid in full.
8.5 Automatically Renewable Orders. BY EXECUTING AN ORDER, CUSTOMER AGREES THAT, ONCE THE COMMITMENT PERIOD ENDS, THE ORDER WILL AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY PERIODS (A “RENEWAL TERM”), UNLESS AND UNTIL THE ORDER IS CANCELED.
8.6 Cancelation. CUSTOMER MAY CANCEL ITS ORDER AT LEAST 30 DAYS PRIOR TO THE NEXT DATE OF A RENEWAL TERM OR AS OTHERWISE SET FORTH ON THE APPLICABLE ORDER FORM, AFTER WHICH D-WAVE WILL NOT RENEW THE ORDER. CUSTOMER MAY CANCEL AN ORDER BY CONTACTING D-WAVE AT SUPPORT@DWAVESYS.COM.
8.7 Recurring Charges. CUSTOMER AUTHORIZES D-WAVE TO CHARGE THE PAYMENT METHOD ON FILE FOR ANY RENEWAL TERM. CUSTOMER WILL BE BILLED UNDER THE SAME TERMS AS THE ORIGINAL ORDER. D-WAVE WILL PROCESS PAYMENTS FOR ANY RENEWAL TERM USING THE SAME BILLING CYCLE AS SET OUT IN THIS AGREEMENT AND THE ORDER. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 9 (the “Term”).
9.2 Commitment and Renewal. An executed Order may set out an initial commitment period (“Commitment Period”) which commences on the Effective Date and continues for the period set out in the Order. If the Order does not set out the Commitment Period, the Commitment Period is deemed to be a one-month period starting on the Effective Date. During the Commitment Period, Customer may not terminate the Agreement or the Order except in accordance with Section 9.4. After the Commitment Period ends, the Agreement and Order will renew automatically for successive one-month periods until terminated under this Section 9. Each such renewal will be on the same terms as set out herein and in the Order, pro-rated as appropriate for the one-month renewal period, subject to any contrary term in the Order. The Commitment Period does not renew.
9.3 Termination for Convenience. Subject to Section 9.2, either party may terminate this Agreement (including all Orders) at any time by giving 30 days’ prior written notice to the other party.
9.4 Termination for Cause by Either Party. Either party may terminate this Agreement (including all Orders) for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party.
9.5 Termination for Cause by D-Wave. D-Wave may terminate this Agreement (including all Orders) immediately upon written notice to Customer if: (a) D-Wave has the right to suspend services in accordance with Section 4.3, 4.4 or 8.4; or (b) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.6 Payment on Termination. If D-Wave terminates this Agreement in accordance with Section 9.4 or 9.5, then Customer will pay to D-Wave all unpaid Fees covering the remainder of the term of all outstanding Orders (including any renewals under Section 9.2). In no event will termination relieve Customer of Customer’s obligation to pay any Fees payable to D-Wave for the period prior to the effective date of termination.
9.7 Obligations on Termination. Immediately upon any termination of this Agreement Customer will cease all access to and use of the Services (including the D-Wave Software), D-Wave Confidential Information and D-Wave IP, and either return to D-Wave or destroy all materials constituting or including the same, and any and all copies and portions of the foregoing (and certify in writing any such destruction to D-Wave, upon request).
9.8 Survival. Sections 5, 6, 8.4, 9, 10 and 11 of this Agreement will survive the termination of this Agreement.
10. DISCLAIMERS, LIMITATION OF LIABILITY AND INDEMNITY
10.1 DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE ORDER, D-WAVE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND REGARDING THE SERVICES (INCLUDING THE D-WAVE SOFTWARE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, D-WAVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS (INCLUDING REGARDING MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OR TRADE). EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE ORDER, THE SERVICES (INCLUDING THE D-WAVE SOFTWARE) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (INCLUDING REGARDING PERFORMANCE, AVAILABILITY, NON-INFRINGEMENT AND THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS).
10.2 LIMITATION ON LIABILITY. TO THE EXTENT PERMITTED BY LAW, D-WAVE AND ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER D-WAVE NOR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, (II) D-WAVE’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA, ACCOUNT INFORMATION OR OTHER DATA. IN ANY CASE, D-WAVES AND ITS AFFILIATES’, SUPPLIERS’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED USD $100. THESE LIMITATIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.3 Indemnity. Customer will defend, indemnify, and hold D-Wave and its affiliates, officers, employees, suppliers and representatives (the “D-Wave Indemnitees”) harmless from and against all loss, cost, liability, damage and expense (including attorneys’ fees) arising out of or in connection with any claim against a D-Wave Indemnitee by a third party: (a) arising due to any breach by Customer or any User of this Agreement; (b) concerning any use by Customer or any User of the Services, D-Wave IP or Confidential Information; or (c) that the Customer IP infringes, violates or misappropriates the Intellectual Property Rights or privacy rights of any third party.
11. GENERAL PROVISIONS
11.1 Entire Agreement. This Agreement and any associated Orders contain the entire agreement of the parties hereto relating to the subject matter herein and supersedes and replaces all prior and contemporaneous agreements. There are no representations, covenants or other agreements relating to the subject matter hereof except as stated or referred to therein.
11.2 Export Compliance. The Services (including the D-Wave Software), D-Wave IP, and other technology D-Wave makes available may be subject to export laws and regulations of the United States, Canada, and other jurisdictions. Customer represents that it is not named on any U.S. or Canadian government denied-party list. Customer will not, and will ensure Users do not, access or use any Service (including the D-Wave Software) or D-Wave IP in, or export any outputs or results from the Services to, a U.S. or Canadian embargoed country or in violation of any U.S. or Canadian export law or regulation.
11.3 Relationship. The parties are independent contractors. This Agreement does not create a partnership, joint venture, franchise, fiduciary or other employment relationship between the parties. No one party will have any authority to bind any other party in any manner without the express written permission of the other party.
11.4 Force Majeure. D-Wave will not be liable to Customer for a failure or delay in the performance of any obligation under this Agreement if such failure or delay is caused by an event beyond D-Wave’s control, including, but not limited to, any fire, power failure, act of God, labour dispute (excluding with respect to D-Wave’s own workforce) or government measure or other cause beyond D-Wave’s reasonable control (a “Force Majeure Event”), provided that D-Wave gives prompt written notice of the Force Majeure Event to Customer and resumes performance of its obligations as soon as possible.
11.5 Mutual Representations. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; and (b) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered.
11.6 Assignment and Subcontracting. This Agreement is not assignable by Customer in whole or in part without the prior written consent of D-Wave, which may be withheld in D-Wave’s sole discretion. Any consent will be conditional on the assignee agreeing in writing to be bound by this Agreement. D-Wave may assign all or any portion of this Agreement in D-Wave’s sole discretion. D-Wave may engage one or more D-Wave affiliate(s) or third party subcontractors to provide some or all of the services described herein to Customer, provided, however, that D-Wave remains responsible for performance of its obligations set out in this Agreement that are performed any D-Wave affiliate or third party subcontractor.
11.7 No Waiver. The failure by D-Wave to enforce any provisions of this Agreement will not constitute a waiver of such provision nor limit D-Wave’s right to enforce such provision at a later time. All waivers by D-Wave must be in writing to be effective.
11.8 Amendments to this Agreement. D-Wave may amend this Agreement at any time by posting a revised version at D-Wave Terms and Conditions or by otherwise notifying Customer in accordance with Section 11.14. Unless otherwise specified in an Order, D-Wave may amend any Order (including the Fees specified therein) by providing 30 days’ prior notice in accordance with Section 11.14. Subject to the above notice period for changes to the Orders, all amendments will become effective upon posting the amended version (or if a notice is provided, on the date specified in the notice). By continuing to use the Services after the effective date of the amendments, Customer agrees to be bound by the modified terms. Customer is responsible for checking regularly for modifications to the Agreement. D-Wave last modified this Agreement on the date listed at the top of this Agreement.
11.9 Governing Law; Venue; Limitation of Actions. The parties agree to finally and exclusively resolve any dispute under the then-current Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, and the parties hereby consent to the exclusive jurisdiction of same. Unless the parties otherwise agree, the place of arbitration will be New York, NY and will take place in the English language. Except as required by law, the Parties, other participants, and the arbitrator shall hold the existence, content, and result of the arbitration in confidence. To the extent permitted by law, any action related to this Agreement must be commenced no later than 2 years from the date on which the cause of action arose. This Agreement will be governed by and construed in accordance with the laws of the state of California, without regard to the conflict of law rules. The parties hereby disclaim and exclude the application hereto of any other laws or legislation whatsoever, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. In the event of litigation or arbitration relating to this Agreement, the prevailing Party shall be entitled to receive from the other Party its reasonable attorneys’ fees and costs. Any litigation or arbitration will be conducted only on an individual basis and not in a class, consolidated or representative action.
11.10 Exceptions to Arbitration. Notwithstanding Section 11.9, either Party may elect to bring a claim for injunctive or equitable relief (where provided for pursuant to this Agreement) in court. If for any reason a claim proceeds in court rather than in arbitration each of the parties waives any right to a jury trial and the parties consent and submit to the exclusive and personal jurisdiction of the federal courts located in San Francisco, California.
11.11 Third Party Beneficiaries. Except as set out in this clause and in Section 10 there are no third party beneficiaries under this Agreement. Any D-Wave affiliate(s) engaged by D-Wave to provide the services herein shall be entitled to enforce all rights under this Agreement against Customer. Notwithstanding the foregoing, no D-Wave affiliate shall have any obligation to Customer under this Agreement and all obligations of D-Wave to Customer will be binding solely on D-Wave and not on any D-Wave affiliate, even if engaged by D-Wave for such purpose.
11.12 Benefit of Agreement. This Agreement will enure to the benefit of, and be binding upon, the parties and their representatives, including their permitted successors and assigns.
11.13 Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be deemed severed from this Agreement and will not affect the validity and enforceability by any court of competent jurisdiction of the remaining provisions.
11.14 Further Assurances. Each of the parties hereto will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to give effect to this Agreement.
11.15 Notices. Any notice required or permitted to be given pursuant to this Agreement must be in writing and: (a) if to D-Wave, sent to firstname.lastname@example.org or to such other address as may be specified from time to time by notice to Customer, such as by update to this Agreement; or (b) if to Customer, sent to the address provided to D-Wave in connection with the creation Customer’s account. All notices will be deemed to have been given when delivered by hand or by email to the other party or three days after the deposit thereof at a post office with proper postage for ordinary mail prepaid.
12.1 “Account Information” means information about Customer or a User that Customer or a User provides to D-Wave, or that D-Wave otherwise collects, in connection with the creation or administration of Customer’s account with D-Wave or in connection with support Services (including names, usernames, phone numbers, email addresses and billing information associated with Customer’s account with D-Wave).
12.2 “Confidential Information” means any information of D-Wave or an affiliate of D-Wave: (i) that is marked as “Confidential” or “Proprietary”, or that, if disclosed orally, visually, or by demonstration, is identified at the time of initial disclosure as confidential; or (ii) which is otherwise deemed to be confidential by the terms of this Agreement. Notwithstanding the foregoing, Confidential Information will exclude information that Customer can demonstrate: (i) was independently developed by Customer without any use of D-Wave’s Confidential Information or by Customer’s employees or agents who have not been exposed to D-Wave’s Confidential Information; (ii) becomes known to Customer, without restriction, from a source other than D-Wave that had no duty of confidentiality to D-Wave; (iii) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of Customer; or (iv) was rightfully known to Customer, without restriction, at the time of disclosure.
12.3 “Customer Data” means electronic data and information submitted by on or behalf of Customer or any other User to D-Wave for processing, storage or hosting by the Services in connection with Customer’s account and any computational results that Customer or any other User derive from the foregoing through their use of the Services, excluding Account Information.
12.4 “Customer Software” means a software program or software code submitted by Customer to the Services or created by or on behalf of Customer using, or with reference to, the Services (including the D-Wave Software) which software interoperates or exchanges or shares data (bidirectionally or unidirectionally) with any D-Wave Software.
12.5 “Documentation” means the documentation, user guides and policies applicable to the Services (including the D-Wave Software), as updated from time to time by D-Wave, which are accessible at docs.dwavesys.com and docs.ocean.dwavesys.com/en/latest/index.html.
12.6 “D-Wave Software” means any D-Wave (and/or D-Wave affiliate) software with which Customer interacts, including all versions thereof and updates and enhancements thereto, and any software development kit downloaded by Customer from a D-Wave interface, such as from D-Wave’s LeapTM and/or D-Wave’s QubistTM, or otherwise made available by D-Wave from time to time during the Term. For greater certainty, D-Wave Software includes any sample code provided by D-Wave to Customer. Notwithstanding the foregoing, D-Wave Software does not include software licensed by D-Wave under an Open Source License.
12.7 “Intellectual Property Rights” means all current and future worldwide common law and statutory rights, whether arising under the laws of Canada or the United States or any other state, country, jurisdiction, government, or public legal authority, in, to, or associated with (a) patents, patent applications, and invention disclosures; (b) copyrights, copyright registrations and applications therefor, moral rights, and mask work rights; (c) the protection of trade or industrial secrets or confidential information; (d) trademarks, service marks, and other designations of source or origin; (e) know-how and all other intellectual property rights and proprietary rights whatsoever, including rights in software and data, and any other intangible rights or privileges of a nature similar to any of the foregoing; (f) divisions, continuations, renewals, reissuances, and extensions of the foregoing (as applicable); and (g) rights to apply for, file for, certify, register, record, or perfect any of the foregoing, including the right or entitlement to claim priority thereto.
12.8 “Open Source License” means any of the following licenses:
- Apache License version 2.0, as published by the Apache Software Foundation at apache.org/licenses/LICENSE-2.0;
- 3-Clause BSD License, as published by the Open Source Initiative at opensource.org/licenses/BSD-3-Clause;
- 2-Clause BSD License, as published by the Open Source Initiative at opensource.org/licenses/BSD-2-Clause;
- MIT License, as published by the Open Source Initiative at opensource.org/licenses/MIT.
For greater certainty, each of the above licenses will continue to be considered an Open Source License if subsequently published at a different location and/or by a successor not named above.
12.9 “Order” means an online order, statement of work or other ordering document specifying the Services to be provided hereunder that is entered into between D-Wave and Customer and governed by and subject to the terms of this Agreement.
12.10 “Services” means the products, services and software that are ordered by Customer under an Order or otherwise provided to Customer free of charge.
12.11 “User” means Customer and any individual or system to whom Customer has supplied its user identification, password or token or has otherwise permitted to use the Services or access Customer’s account.