Terms of Service

1. DEFINITIONS

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used or otherwise defined.

  1. “Access Protocols” means the credentials, passwords, access codes, or other relevant procedures provided by Xanadu to Subscriber to access the Services.
  2. “Authorized User” means any individual or entity who is authorized by Subscriber to access the Services pursuant to Subscriber’s rights under this Agreement.
  3. “Documentation” means the technical materials provided by Xanadu to Subscriber in hard copy or electronic form, including via online URL or link, describing the use and operation of the Services.
  4. “Feedback” shall have the meaning specified in Section 4.2.
  5. “Fees” shall have the meaning specified in Section 5.1.
  6. “Order Form” means an order form based on the template in Exhibit A that references this Agreement and is signed by both parties. The terms of the Order Form are hereby incorporated by reference and shall be included in the term “Agreement” as used herein.
  7. “Platform” means Xanadu’s propriety quantum cloud platform, as further described in an applicable Order Form.
  8. “Services” means the services ordered by Subscriber through an Order Form, and all software, interfaces, tools, utilities, application programming interfaces (APIs) and other technologies (and any related intellectual property) relating thereto that is provided by or on behalf of Xanadu and used in connection with the services, including, if set forth on an applicable Order Form, the Platform.
  9. “Subscriber Data” means the data, code, instructions, and information submitted, posted, or displayed by Subscriber for execution through the Platform.
  10. “Subscription Term” means the term of an Order Form, as specified in the Order Form.
  11. “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Xanadu as required for use of the Services. The current requirements (if any) are described in the Order Form.
  12. “Term” shall have the meaning specified in Section 10.1.

2. PROVISION OF SERVICES

  1. Access. Subject to Subscriber’s compliance with the terms of this Agreement, including payment of applicable fees, Xanadu will provide Subscriber with access to the Services in accordance with this Agreement. As soon as reasonably practicable after the Effective Date, Xanadu shall provide to Subscriber the Access Protocols to allow Subscriber and Authorized Users, if permitted in accordance with this Agreement, to access the Services.
  2. Service Level Agreement. Xanadu will use commercially reasonable efforts to keep the Services operational and available to Subscriber but Xanadu offers no guarantee of availability of the Services.

3. LICENSE GRANT FOR THE SERVICES

  1. License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, Xanadu grants to Subscriber a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 13.5) license during the applicable Subscription Term, (a) solely for Subscriber’s internal business purposes i) to access and use the Services; and (i) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Services. All such use shall be in strict compliance with the Documentation and (b) to permit Authorized Users to access and use the Services in accordance with Section 7.2 and this Agreement.
  2. Restrictions. Subscriber agrees that it will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any third party except as expressly allowed herein; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) create derivative works based on the Services or Documentation; (f) access or use the Services for the purpose of developing or creating a competitive service or product; (g) grant any access to the Services to any individuals or entities set forth on Xanadu’s entity blacklist as provided by Xanadu and amended from time to time.

4. PROPRIETARY RIGHTS

  1. Xanadu Materials. Except for the licenses expressly granted by Xanadu under this Agreement, Xanadu owns and retains all right, title and interest (including, but not limited to, all copyright and patent rights) in the Services and Documentation, and no other license or right of any kind (express or implied) is granted to Subscriber by Xanadu in or to the Services, Documentation, quantum hardware device, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the software used to operate the Services.
  2. Feedback. Subscriber hereby grants Xanadu a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate in the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Services (“Feedback”).
  3. Usage Data. The parties acknowledge and agree that Xanadu may collect usage data relating to Subscriber’s use of the Services. Xanadu will own all rights in such data and may use such data for any purpose (including, but not limited to, providing the Services and troubleshooting, auditing, and improving the Services), provided that if Xanadu provides such data to a third party it will aggregate and anonymize such data so that Subscriber cannot be identified.
  4. Third Party Materials. As a part of the Service, Subscriber may have access to materials that are hosted by another party. Subscriber agrees that it is not possible for Xanadu to monitor such materials and that Subscriber’s access to these materials is at Subscriber’s risk.
  5. Open Source Software. Certain items of software may be provided to Subscriber with the Services and are subject to “open source” or “free software” licenses. Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 3.1.

5. FEES

  1. Fees and Payment. Subscriber shall pay Xanadu the fees set forth in the applicable Order Form (the “Fees”). Unless otherwise stated in the applicable Order Form, Xanadu will invoice Subscriber for the Fees monthly in advance, and all undisputed amounts payable to Xanadu shall be due thirty (30) days from the date of invoice. Non-payment or late payment of undisputed fees is a material breach of this Agreement. If any undisputed amount is past due more than thirty (30) days, Subscriber shall pay interest on the overdue balance at the rate of 1% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. Xanadu shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.

6. SUBSCRIBER DATA AND MATERIALS

  1. License; Ownership. Subscriber hereby grants Xanadu a non-exclusive, worldwide, royalty-free and fully-paid license to use the Subscriber Data as necessary for purposes of providing the Services. As between the parties, Subscriber owns all right, title and interest in the Subscriber Data.
  2. Responsibility. Subscriber is solely responsible for the Subscriber Data and Subscriber’s applications, technology, and systems used in connection with the Services. Subscriber shall ensure that the Subscriber Data and Subscriber’s applications, technology, and systems used in connection with the Services comply with this Agreement and the Documentation.

7. SUBSCRIBER RESPONSIBILITIES

  1. Assistance. Subscriber will provide the information and assistance (if any) specified in the applicable Order Form to enable Xanadu to provide the Services to Subscriber.
  2. Authorized Users. Subject to the terms and conditions of this Agreement, Subscriber may permit Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement.

8. WARRANTY DISCLAIMER

THE PARTIES ACKNOWLEDGE THAT THE PLATFORM AND SERVICES ARE EXPERIMENTAL IN NATURE AND THAT THE DOCUMENTATION, PLATFORM AND SERVICES ARE PROVIDED "AS IS." XANADU MAKES NO (AND HEREBY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

  1. Limits on Liability. IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER.

10. TERM AND TERMINATION

  1. Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and, unless earlier terminated under Section 10.2, shall continue until all Order Forms have expired or been terminated.
  2. Termination. Xanadu may terminate this Agreement and/or any applicable Order Form immediately for convenience upon written notice to the Subscriber.

11. PUBLICITY

If requested by Xanadu, Subscriber agrees to cooperate in good faith with Xanadu on a press release following execution of this Agreement.

12. GOVERNING LAW AND VENUE

This Agreement and any action related thereto will be governed by the laws of the State of New York.

13. MISCELLANEOUS

  1. Subcontractors. Xanadu may subcontract this Agreement or any services or obligations hereunder to any third party.
  2. Independent Contractors. The parties are independent contractors and nothing in this Agreement shall create any partnership or agency relationship between the parties.
  3. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior understandings or communications regarding such subject matter.
  4. Severability. In the event any provision of this Agreement is held to be void or unenforceable, the remaining provisions shall remain in full force and effect.
  5. Assignment. Neither party shall assign this Agreement without the other party’s prior written consent.
  6. Force Majeure. Xanadu shall not be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control.
  7. Remedies. Except as expressly set forth herein, the parties’ rights and remedies under this Agreement are cumulative.
  8. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
  9. Section Headings. Section headings are for convenience only and shall not be used to interpret this Agreement.