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THIS CUSTOMER AGREEMENT (THIS "AGREEMENT") IS ENTERED INTO BETWEEN THE APPLICABLE D-WAVE CONTRACTING PARTY SPECIFIED IN SECTION 11.5 BELOW ("D-WAVE" OR "WE") AND YOU OR THE COMPANY OR ENTITY YOU REPRESENT ("CUSTOMER" OR "YOU") AND GOVERNS YOUR ACQUISITION AND USE OF THE SERVICES FROM THE DATE YOU INDICATE YOUR ACCEPTANCE, SUCH AS BY CLICKING A CHECKBOX OR BY EXECUTING AN ORDER (THE "EFFECTIVE DATE").
WHEN THE AGREEMENT IS CONCLUDED ONLINE, WE WILL DISPLAY THE INFORMATION YOU ENTERED BEFORE YOU CONFIRM ACCEPTANCE TO GIVE YOU THE OPPORTUNITY TO SPOT AND CORRECT ANY MISTAKES IN YOUR INFORMATION, AND WE WILL CONFIRM THE RECEIPT OF YOUR CONTRACTUAL DECLARATION WITHOUT UNDUE DELAY. THE AGREEMENT CAN BE CONCLUDED IN THE ENGLISH LANGUAGE OR ANY OTHER LANGUAGE LISTED IN APPENDIX A – LOCAL PROVISIONS. WE DO NOT STORE A COPY OF THE AGREEMENT FOR YOU.
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.
YOU MUST BE AT LEAST 18 YEARS OLD TO USE THE SERVICES SOME TERMS OF THIS AGREEMENT MAY BE VARIED IN YOUR COUNTRY. SEE APPENDIX A FOR COUNTRY-SPECIFIC TERMS. IF YOU ARE IN EUROPE, BOTH EUROPEAN AND NATIONAL PROVISIONS MAY APPLY TO YOU. PLEASE READ BOTH.
THIS AGREEMENT WAS LAST UPDATED ON JUNE 15, 2020.
Capitalized terms used in this Agreement will have the meaning given to them in Section 11 or elsewhere in this Agreement.
1.1 Services. Subject to the terms of this Agreement and the applicable Service descriptions, D-Wave will provide to Customer the Services ordered by Customer. Customer may access and use such Services subject to the terms of this Agreement and the applicable Service descriptions.
1.2 Changes to Services. D-Wave may change, discontinue or remove functionality of any or all of the Services at any time with seven (7) days' notice.
1.3 Restrictions of Availability due to Nature of Services. Customer further agrees and acknowledges that except to the extent agreed otherwise in the Service description, D-Wave does not owe the availability of specific hardware or specific hardware configurations, and does not owe uninterrupted or real-time availability of the Services. Customer agrees and acknowledges that this in particular means all computing tasks submitted to the Services will be queued and processed in priority sequence, and that therefore, wait times can occur. In the event that a computing task cannot be completed due to unavailability, Customer will be notified and offered an opportunity to re-submit.
2.1 Customer Responsibilities. Customer will: (a) be responsible for Users' compliance with this Agreement, Documentation and Service descriptions; (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 Service descriptions 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.
2.3 Security and Customer Equipment; Data Backup. 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. Customer acknowledges that D-Wave is not a data backup service and that Customer is responsible for separately backing up any data or information uploaded or used with the Services.
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.
3.1 Gratis Access. D-Wave offers the Services to Customer at no charge.
3.2 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 3.2. 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. D-Wave acknowledges that Customer's promises under this Section 3.2 are good and valuable consideration.
3.3 Supporting Development. D-Wave may improve the Services based on Customer's use of the Services. In particular:
4.1 Service Offerings. D-Wave will provide those Services that are expressly identified by D-Wave as being included in Customer’s Services at the time Customer accepts this Agreement. Customer may access and use only such Services, except that D-Wave may allow Customer to access other Services if requested by Customer, provided that such access is at D-Wave’s sole discretion and may be withdrawn at any time and for any reason. Such Services may include one or more of the following:
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 Account Balance. Customer’s account will have an associated account balance (the “Balance”) which D-Wave will credit with an amount and with a frequency set out in an Order (or, if not specified in an Order, monthly). An Order may set out the amount to be credited to the Balance in any one of the following ways:
If an Order sets out the amount to be credited in more than one of the above ways, then only the greatest one applies. D-Wave will debit the Balance as Customer uses the Services based on the rate for each Service as set out in the Order or, where no such rate is set out, at D-Wave’s then-current rate for the applicable Service. Rates for any new Service or new feature of a Service will be effective as soon as D-Wave posts updated rates on the Leap website or otherwise provides notice of such Service’s rates to Customer. D-Wave may increase rates for any existing Services set out in an Order by giving Customer at least 30 days’ prior notice. Any unused portion of the Balance may not be carried over from one month to another, has no cash value, and is not refundable.
4.4 Usage. The Services are subject to usage limits, including the limits set out in an Order, the Service descriptions, and Documentation (e.g. number of API calls, number of results, number of computing systems or computing equipment, units of time, rates for use). Customer acknowledges that D-Wave may monitor Customer’s usage of the Services and if Customer exceeds the applicable usage limits, including by depleting the Balance, 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 debit Customer’s Balance for use on a “per second” basis or, if it benefits Customer, on such other more-precise basis as D-Wave may determine from time to time in its sole discretion.
4.5 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"):
D-Wave may immediately suspend access to the Services in the event of any breach by a User of this Section 4.5.
4.6 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 Customer 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 will 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 in this Agreement, 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. Customer represents that it is not named on any U.S. or Canadian government denied-party list.
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). 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 of this Agreement 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 this 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 Customer secure Customer Data against accidental or unlawful loss, access or disclosure. This provision does not limit Section 9 or any of Customer's obligations under this Agreement.
6.1 Scope; Availability of Beta Services. D-Wave may, in its sole discretion, make available to Customer certain Services that are not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “preview”, “pre-release”, or “experimental” (each, a “Beta Service”). Customer may choose to access such Beta Services, in which case the provisions of this Section 6 apply, but only to such Beta Services.
6.2 Restrictions on Use. If D-Wave makes available to Customer a Beta Service and Customer chooses to access it, Customer may: (a) access and use the Beta Service solely for internal evaluation purposes; (b) install and use any related D-Wave Software and/or D-Wave IP that may be provided to Customer by D-Wave in connection with the Beta Service (“Beta Materials”) solely as necessary to access and use the Beta Service; and (c) use the Beta Services and Beta Materials only in compliance with all policies and guidelines related to any Beta Service as posted on the Leap website or otherwise made available to Customer by D-Wave, including any additional terms and conditions for a specific Beta Service.
6.3 Confidentiality. Customer’s access to the Beta Service, the existence and contents of the Beta Service and Beta Materials, Feedback concerning the Beta Services or Beta Materials, and any Test Observations are Confidential Information regardless of whether they contain restrictive markings indicating the confidential nature thereof or have been identified as Confidential Information prior to disclosure. Customer agrees not to allow access to or use of any Beta Service or Beta Materials by any third party other than Customer’s employees who (i) have a need to use or access the Beta Service or Beta Materials in connection with Customer’s internal evaluation activities, and (ii) have executed written non-disclosure agreements obligating them to protect the confidentiality of non-public information regarding the Beta Service and Beta Materials.
6.4 No Access Guarantees; No SLA. D-Wave may vary usage limits, suspend or terminate Customer’s access, or otherwise add or modify restrictions relating to access to or use of any Beta Service at any time. Service level agreements do not apply to Beta Services. Beta Services may be unavailable and/or their performance may be negatively affected by scheduled and unscheduled maintenance or other events, and D-Wave has no obligation to provide advance notice of such maintenance or other events.
6.5 Feedback. In consideration of being allowed to access and use a Beta Service, Customer agrees to provide D-Wave with information relating to Customer’s access, use, testing, or evaluation of the Beta Service or any related Beta Materials, including observations or information regarding the performance, features and functionality of the Beta Service or any related Beta Materials as applicable, when and in the form reasonably requested by D-Wave (“Test Observations”). D-Wave will own and may use and evaluate all Test Observations for its own purposes. Customer will not use any Test Observations except for Customer’s internal evaluation purposes of the Beta Service.
6.6 Termination of Participation. Either Customer or D-Wave may terminate Customer’s participation in a Beta Service at any time for any reason upon notice to the other party. After the conclusion of Customer’s participation in a Beta Service, (a) Customer’s content used in the applicable Beta Service may be deleted or inaccessible; and (b) Customer’s obligations under Sections 6.3 and 6.5 will survive.
6.7 ADDITIONAL WARRANTY DISCLAIMERS. WITHOUT LIMITING ANY OTHER DISCLAIMERS SET FORTH IN THIS AGREEMENT, THE BETA SERVICES AND BETA MATERIALS ARE NOT READY FOR GENERAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, D-WAVE IS PROVIDING THE BETA SERVICES AND BETA MATERIALS TO CUSTOMER “AS IS.” D-WAVE AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE BETA SERVICES AND BETA MATERIALS, INCLUDING ANY WARRANTY THAT THE BETA SERVICES AND BETA MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER'S CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, D-WAVE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
7.1 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 and non-transferrable license during the Term: (a) to use the D-Wave Software solely for the purpose of using the Services (but only to the extent such use is permitted by Section 4.5), 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.
7.2 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, royalty-free, sublicensable (solely to D-Wave's suppliers and affiliates performing or supporting the Services hereunder), non-transferrable and worldwide 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.
7.3 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, irrevocable, non-exclusive, perpetual, royalty-free, sublicensable, transferrable and worldwide license to use the Feedback for any purpose.
7.4 Third Party Software. The D-Wave Software may include third-party software which is free to use but to which a third-party license applies (generally Open Source Licenses and/or similar types of licenses) and, if applicable, Customer must agree to such license prior to use.
8.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 8 (the "Term").
8.2 Termination for Convenience. Either party may terminate this Agreement (including all Orders) at any time by giving seven (7) days' prior written notice to the other party, except to the extent an Order provides for a longer notice period.
8.3 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.
8.4 Termination for Cause by D-Wave. D-Wave may terminate this Agreement (including all Orders) immediately upon written notice to Customer if D-Wave has the right to suspend the Services in accordance with Sections 4.4 and 4.5.
8.5 Automatic Termination. This Agreement will automatically be terminated as of the date of the applicable event if (a) any proceedings relating to Customer under any reorganization, arrangement, adjustment of debt, bankruptcy, insolvency, dissolution or liquidation law of any jurisdiction are commenced, (b) Customer is adjudged bankrupt or becomes insolvent, or (c) Customer makes an assignment for the benefit of, or proposes an arrangement with, its creditors, a receiver or a manager or a like person is appointed in respect of all or any part of its assets.
8.6 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).
8.7 Survival. Sections 5, 6.3, 6.5, 6.7, 7, 8.6 and 9 of this Agreement will survive the termination of this Agreement.
9.1 Notice of Local Provisions. For residents of some jurisdictions, such as the European Union, Sections 9.2 and 9.3 are replaced by provisions of Appendix A.
9.2 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT 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 IN THIS AGREEMENT 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).
9.3 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 LIABILITY FOR NEGLIGENCE, 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 IN THIS AGREEMENT.
9.4 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 negligent, fraudulent, or wilful breach of this Agreement by Customer, any User, or any person to whom Customer has granted access to the Services in violation of this Agreement; or (b) that the Customer's and/or any User's use of the Service and/or the Customer IP negligently, fraudulently, or wilfully infringes, violates or misappropriates the Intellectual Property Rights or other rights (including, without limitation, privacy rights) of any third party.
10.1 Entire Agreement. This Agreement and any associated Orders, and the Additional Terms it and/or an Order refers to (as applicable) contain the entire agreement of the parties relating to the subject matter of this Agreement and supersedes and replaces all prior and contemporaneous agreements. There are no representations, covenants or other agreements relating to the subject matter of this Agreement except as stated or referred to in this Agreement. No terms, provisions, or conditions of any purchase order, form, e-mail, URL or other document provided by Customer (“Customer Form”) will have any effect on the obligations of the parties under or otherwise modify, supersede, or supplement this Agreement and D-Wave expressly rejects all terms, provisions, or conditions contained in any Customer Form and no such terms, provisions, or conditions form part of this Agreement. Any reference to or acceptance of (whether by signature, electronic acceptance, provision of the Services or otherwise) a Customer Form is solely for Customer's convenience in record keeping. No act by D-Wave (including signature, electronic acceptance, provision of the Services or otherwise) will be deemed to be an acknowledgement or acceptance of any terms or conditions associated with any Customer Form. Any reference or other aforementioned act relating to the Customer Form is provided solely for Customer’s record-keeping convenience.
10.2 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.
10.3 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.
10.4 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.
10.5 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 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.
10.6 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.
10.7 Amendments to this Agreement. For residents of some jurisdictions, such as the European Union, D-Wave may amend the Agreement as set out in the part of Appendix A relating to Customer’s jurisdiction. If Appendix A does not specifically provide for an amendment formula for Customer’s jurisdiction, then D-Wave may unilaterally amend the Agreement and any other terms pertaining to the Services, such as Additional Terms (but not an Order). If D-Wave makes a material change to the Agreement, D-Wave will provide Customer with reasonable notice prior to the change taking effect. Customer can review the most current version of the Agreement at any time by visiting https://cloud.dwavesys.com/leap/legal/terms_and_conditions/. The materially-revised Agreement will become effective on the date set forth in D-Wave's notice, and all other changes will become effective upon posting of the change (the "Amendment Effective Date"). If Customer accesses or uses the Services after the Amendment Effective Date, that use will constitute Customer’s acceptance of any revised terms and conditions.
10.8 Governing Law and Venue. Unless Appendix A provides for different governing law and/or venue in Customer's jurisdiction, 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. The parties hereby submit to the exclusive jurisdiction and venue of the federal courts located in San Francisco, California and the parties consent to the personal and exclusive jurisdiction of such courts for all matters.
10.9 Third Party Beneficiaries. Except as set out in this clause and in Section 9 there are no third party beneficiaries under this Agreement. Any D-Wave affiliate(s) engaged by D-Wave to provide the Services will be entitled to enforce all rights under this Agreement against Customer. Notwithstanding the foregoing, no D-Wave affiliate will 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.
10.10 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.
10.11 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.
10.12 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.
10.13 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 of 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.
10.14 Local Provisions. Appendix A – Local Provisions ("Appendix A") forms a part of this Agreement. If Customer is a resident in a jurisdiction named in Appendix A, the provisions of Appendix A for that jurisdiction will apply and will control in the event of a conflict with any other provision of this Agreement.
11.1 "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).
11.2 "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.
11.3 "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.
11.4 "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.
11.5 "Documentation" means the documentation, user guides and policies applicable to the Services (including the D-Wave Software), in the English language, as updated from time to time by D-Wave, which are accessible via the Services, including but not limited to documentation available at docs.dwavesys.com and docs.ocean.dwavesys.com.
11.6 "D-Wave Contracting Party" means the party specifically identified as such in an Order or, if the Order does not so specify, the party identified in the table below, based on the country associated with Customer’s account ("Account Country"). Customer provides its Account Country when Customer signs up and can update it by editing its profile. Customer represents that Customer is a resident in Customer’s Account Country and agrees to change the country associated with its account if its residence changes. If Customer changes its Account Country to one identified as corresponding to a different D-Wave Contracting Party below, Customer agrees that this Agreement is then assigned to the new D-Wave Contracting Party under Section 10.5 without any further action required by either party.
11.7 "D-Wave Software" means any D-Wave (and/or D-Wave affiliate) software with which Customer interacts via the Services, 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 Jupyter notebooks made accessible by D-Wave via the Services as well as 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.
11.8 "Intellectual Property Rights" means all current and future worldwide common law and statutory rights, whether registered or not, and 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.
11.9 "Open Source License" means any of the following licenses:
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.
11.10 "Order" means an online order, statement of work or other ordering document provided by D-Wave (and excluding any Customer Form) 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.
11.11 "Services" means the products and services that are ordered by Customer under an Order, including any products and services that may be provided to Customer by D-Wave free of charge.
11.12 "User" means Customer and any employee of Customer to whom Customer has supplied its user identification, password or token or has otherwise permitted to use the Services or access Customer's account.
If Customer is a resident in one of the below jurisdictions, its associated provisions apply. In the event of a conflict between this Appendix and the main body of the Agreement, the provisions of the Appendix will control.
1.1 Applicability of Terms.This Section 1 applies only when Customer is the United States government or an agency thereof.
1.2 US Federal Government License. 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 in this Agreement, 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.
2.1 Applicability of Terms. This Section 2 applies only if Customer is a resident in a member state of the European Union, European Economic Area, or Switzerland. In the event of a conflict between any clause of this Section 2 and a local provision for Customer's country, the local provision for Customer's country will control.
2.2 Statutory Rights – Warranties. THIS PROVISION REPLACES SECTION 9.2 OF THE AGREEMENT. AS THE SERVICES ARE PROVIDED FREE OF CHARGE, D-WAVE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND REGARDING THE SERVICES (INCLUDING THE D-WAVE SOFTWARE). CUSTOMER'S STATUTORY WARRANTY CLAIMS ARE EXCLUDED TO THE EXTENT PERMITTED BY LAW. CUSTOMER MAY RETAIN CERTAIN NON-EXCLUDABLE STATUTORY WARRANTY CLAIMS IN ACCORDANCE WITH LOCAL LAW. SECTION 2.3 OF THIS APPENDIX REMAINS UNAFFECTED.
2.3 Statutory Rights – Limitation of Liability. THIS PROVISION REPLACES SECTION 9.3 OF THE AGREEMENT. AS THE SERVICES ARE PROVIDED FREE OF CHARGE, D-WAVE IS LIABLE ONLY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND ANY ACTS FOR WHICH LIABILITY IS REQUIRED AND NOT WAIVABLE UNDER LOCAL LAW. CUSTOMER’S LOCAL LAW MAY ALLOW BROADER WAIVERS OF LIABILITY FOR FREE SERVICES, IN WHICH CASE D-WAVE’S LIABILITY FOR ANY SERVICES PROVIDED FREE OF CHARGE IS WAIVED TO THE EXTENT PERMITTED BY LOCAL LAW. IN THE EVENT THAT D-WAVE IS GENERALLY LIABLE FOR ANY LOSS OF DATA PURSUANT TO THE FOREGOING, SUCH LIABILITY IS LIMITED TO THE RECOVERY COSTS WHICH WOULD HAVE ARISEN IF BACKUP COPIES HAD BEEN REGULARLY MADE IN APPROPRIATE RELATION TO THE RISK OF SUCH LOSS. THE FOREGOING LIMITATIONS OF LIABILITY WILL ALSO APPLY FOR THE BENEFIT OF ANY OFFICERS, DIRECTORS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS OF D-WAVE. DOWNTIME OF QUANTUM SERVICES IS SOMETIMES REQUIRED DUE TO THEIR UNIQUE PHYSICS AND ENGINEERING REQUIREMENTS; D-WAVE IS THEREFORE NOT LIABLE FOR SUCH DOWNTIME OF THE SERVICES AND CUSTOMER AGREES NOT TO RELY ON CONTINUED UPTIME OF THE SERVICES.
2.4 Amendments. Except as set forth in this Section 2.4, any amendment to this Agreement must be in writing in order to be effective. This particularly applies to any waiver of the written form requirement. D-Wave may however also amend this Agreement as follows provided such modification (i) is necessary because of a change in laws or their application by courts, regulators and/or other authorities, or similarly cogent reasons, and (ii) does not modify the parties’ main performance obligations in a way that is detrimental to Customer: D-Wave will communicate the intended changes before intended entry into force and grant Customer a reasonable period of at least eight (8) weeks to either accept or object to the amended terms. If D-Wave does not receive any objection from Customer within this period, which begins with Customer’s receipt of the aforementioned notice in text form, the amended terms are considered accepted. In the notice, D-Wave will inform Customer separately about the beginning and duration of the objection period, the right to object, and the legal consequences of remaining silent.
2.5 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the law of the country you are resident in, excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the personal and exclusive jurisdiction and venue of the courts located in the national capital city of the country you are resident in for all matters, except where statutory rules require alternative jurisdiction or venue, in which case court jurisdiction will be determined according to such statutory rules.
3.1 Language. The agreement can be concluded in the French language.
3.2 Statutory Rights – Warranties. NOTWITHSTANDING ANYTHING IN SECTION 2.2 OF THIS APPENDIX, ALL WARRANTIES, GUARANTEES OR CONDITIONS CONCERNING THIS AGREEMENT ARE SUBJECT TO THE FOLLOWING LIMITATIONS:
3.3 Amendments to this Agreement. The Parties acknowledge that this Agreement has no fixed duration. D-Wave may unilaterally modify the terms of this Agreement as described in this Agreement. D-Wave will, to the extent commercially reasonable, avoid modification to the core characteristics of the Services without Customer's consent.
4.1 Language. The agreement can be concluded in the German language.
4.2 Additional Services. Any additional services identified under Section 4.2 of the Agreement are services (“Dienste”) in the sense of Sec. 611 et sqq. of the German Civil Code unless expressly agreed otherwise in the applicable Additional Terms.
4.3 Statutory Rights – Termination. The statutory right of extraordinary termination without notice for cause remains unaffected by Sections 8.3 and 8.4 of the Agreement.
4.4 Statutory Rights – Warranties. NOTWITHSTANDING ANYTHING IN SECTION 2.2 OF THIS APPENDIX, CUSTOMER RETAINS ITS STATUTORY WARRANTY CLAIMS ONLY TO THE EXTENT D-WAVE HAS FRAUDULENTLY CONCEALED A DEFECT.
4.5 Statutory Rights – Limitation of Liability. NOTWITHSTANDING ANYTHING IN SECTION 2.3 OF THIS APPENDIX, D-WAVE IS LIABLE ONLY FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT PURSUANT TO STATUTORY LAW.
5.1 Statutory Rights – Warranties. NOTWITHSTANDING ANYTHING IN SECTION 2.2 OF THIS APPENDIX, CUSTOMER RETAINS ITS WARRANTY CLAIMS ON THE BASIS OF THE SERVICE NOT BEING OF SATISFACTORY QUALITY OR FIT FOR PURPOSE.
5.2 Statutory Rights – Limitation of Liability. NOTWITHSTANDING ANYTHING IN SECTION 2.3 OF THIS APPENDIX, D-WAVE IS NOT LIABLE FOR (A) LOSSES THAT WERE NOT FORESEEABLE TO BOTH PARTIES WHEN THE CONTRACT WAS FORMED; (B) LOSSES THAT WERE NOT CAUSED BY ANY BREACH BY D-WAVE; AND (C) BUSINESS LOSSES AND LOSSES TO NON-CONSUMERS.
6.1 Prohibited Uses: In addition to the Prohibited Uses listed in Section 4.5 of the Agreement, Customer cannot use the Services or D-Wave IP to engage in the following acts:
6.2 Intellectual Property: Notwithstanding the provision of Section 30A of the (Indian) Copyright Act, 1957, any copyrightable material in the Feedback or the Customer IP licensed under Sections 7.2 and 7.3 of the Agreement will not lapse nor will the rights licensed therein revert to the Customer, even if D-Wave does not exercise the rights under the license within a period of one year from the date of such license.
6.3 Amendments to this Agreement. D-Wave may unilaterally amend the Agreement and any other terms pertaining to the Services, such as Additional Terms (but not an Order). If D-Wave makes a material change to the Agreement, D-Wave will provide Customer with reasonable notice prior to the change taking effect. Customer can review the most current version of the Agreement at any time by visiting https://cloud.dwavesys.com/leap/legal/master_services_agreement/. The materially-revised Agreement will become effective on the date set forth in D-Wave's notice, and all other changes will become effective upon posting of the change (the “Amendment Effective Date”). Customer's acceptance of the revised terms and conditions can be implied by a positive conduct evidencing the Customer's intention to accept the revised terms and conditions.
7.1 Applicability of Terms. This Section 7 applies only if Customer is a resident or citizen of Australia or the Services are provided in Australia.
7.2 Statutory Rights – Warranties. Where legislation implies in this Agreement any condition or warranty, that condition or warranty is excluded or, if incapable of exclusion, limited to the extent permitted by that legislation. Where legislation provides for a consumer guarantee to be incorporated into this Agreement, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such guarantee, this Agreement will not be read as excluding that guarantee. However, the liability of D-Wave for any breach of such guarantee will be limited, at the option of D-Wave, to one or more of the following:
7.3 Limitation on liability. The limitation on the aggregate liability under this Agreement of D-Wave and its affiliates, suppliers and licensors specified in Section 9.3 of the Agreement applies only to the extent permitted by law.