QCI Azure Quantum Services Agreement

This QCI Azure Quantum Services Agreement (“Agreement”) is made and entered into by and between Quantum Circuits, Inc. a Delaware corporation with an office at 25 Science Park, New Haven, CT 06511 (“QCI” or “Company”) and the individual or entity that accepts this Agreement electronically (“Customer”) (each a “Party” and collectively the “Parties”).

A.	QCI develops and commercializes a cloud-accessible quantum computing platform, including quantum computing hardware, software, apps, hardware emulators, quantum simulators, cloud services, APIs, documentation and other related software and services; and
B	Company and Customer desire to enter into this Agreement to enable Customer to receive certain services and license certain software from Company under this Agreement as specified in one or more Orders from the Microsoft Azure Marketplace (the “Marketplace”).

By using any aspect of the Services (as defined below), Customer agrees to be bound by this Agreement.  

1.	Definitions.  
1.1	Definitions.  Unless specifically defined below, capitalized terms are defined in Schedule A below.

2.	Services.
2.1	License.  Subject to Customer’s compliance with this Agreement, QCI grants to Customer a non-exclusive, non-assignable (except as permitted in Section 8.1 below) license to use the Services described in each Order, in the form provided by Company, during the applicable Order Term specified in that Order, and subject to any additional limitations specified in each Order.  The foregoing license includes the right for Customer to permit the Authorized Users to access the Services within the scope of the foregoing license granted to Customer, and otherwise subject to this Agreement. 
2.2	Updates and Security. QCI may update the Services and the applicable specifications from time to time, including to improve or add new functionality to the Services, or to reflect changes in laws, regulations, rules, technology, industry practices, patterns of system use, and availability of third-party services or content (as defined below).    Company may suspend Customer’s access to the Services at any time in case of actual or suspected security risks or threats to the Services, in which case Company will notify Customer of the respective issue as soon as reasonably possible.
2.3	Use of Services.  Customer will not itself, and will not permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any availability testing of the Services; (c) perform or disclose any performance or vulnerability testing of the Services without Company’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Services; (d) publish any performance or benchmarking tests related to the Company’s Services, or any results obtained through the Services, including any information about QCI’s hardware, with the Company’s prior written approval; (e) share passwords among Authorized Users, or otherwise permit more than one Authorized User to access the Services using a single corresponding account, (f) sublicense, lease, rent or otherwise provide access to any aspect of the Services to any party other than Authorized Users acting on behalf of Customer, (g) use the Services or any information made available by QCI for any competitive purposes, to develop competitive intelligence, and/or to create or assist any other party to create any product, software or service that competes with any aspect of the Services, and (h) disparage QCI, or release publicly any information related to the Services without express written permission from QCI ((a) through (h) collectively, the “Use Policy”).  In addition to its other rights and remedies under this Agreement, QCI has the right to take immediate remedial action if Customer violates or permits the violation of the Use Policy, including to remove or disable access to material that violates the Use Policy.  Customer will ensure that all passwords and all access to the accounts held by Authorized Users within the Services are kept secure and confidential, and Customer will be responsible for all access and losses that may occur to the extent caused by security lapses, failure to keep confidential access credentials, or other misconduct by Authorized Users.
2.4	Third Party Services.  The Services may use or may rely on technology or services not provided by QCI (e.g., data transmissions over the Internet or local networks, and other factors outside the control of Company) (“Third Party Services”).  Consequently, Customer assumes the risk that the Services may malfunction from time to time to the extent that the Services rely on and/or Customer uses any Third Party Services.  QCI will have no obligations and liability in connection with this Agreement for any impairment of the Services caused by Third Party Services.

3.	Financial.
3.1	Prices.  The prices for Subscription Services are set forth in applicable Orders entered into by QCI and Customer via the Azure Marketplace.  Customer will pay all amounts due to QCI under this Agreement in accordance with the payment terms specified in the Customer’s agreement with Microsoft relating to the Azure Marketplace (the “Microsoft Agreement”).  If no such payment terms apply to Customer for the amounts due to QCI under this Agreement, Customer will pay all amounts invoiced by Company under this Section within thirty (30) days after receiving corresponding invoices.  Alternatively, if an Order executed by both Parties includes payment terms for the amounts due to QCI under this Agreement, the Order will prevail over the Microsoft Agreement and the preceding clause in this Section 3.1.
3.2	Scope of Use.  Customer will limit use of the Services in accordance with any limitations specified in each Order.  If Customer exceeds the use of Services specified in an Order, Company has the right to block access to the Services or to invoice Customer for the additional scope.  
3.3	Taxes.  To the extent any taxes and other charges (including sales and use taxes, withholding taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts and other government-imposed surcharges) (“Taxes”) are applicable to the payments made by Customer to QCI under this Agreement, Customer will be responsible for those Taxes and will pay them to the appropriate authorities.  Each Party is responsible for its own respective income taxes.

4.	Intellectual Property
4.1	Ownership and Reservation of Rights.  Except for the right to use the Services in accordance with Section 2, QCI owns and will retain all right, title and interest in and to the Services and all related Software, hardware and other technology used to deliver the Services, and to all IP Rights in and to all such Subscription Services, Software and other technology.  QCI will retain ownership of its own respective technology (including software and hardware), services and IP Rights.  To the extent that Customer or QCI develops any new IP Rights and/or any new work product in connection with this Agreement, solely or jointly with the other Party, then the following will apply: (a) Customer will be the sole owner of any IP Rights and new work product that relate to the Customer’s technology and services, including any improvements, modifications or extensions of such technology and services, and (b) QCI will be the sole owner of any IP Rights and new work product that relate to QCI’s technology and services (including the Services and Software), including any improvements, modifications or extensions of such technology and services.  Neither Party intends to grant, and neither Party does actually grant in connection with this Agreement any license or other right that is not expressly stated in this Agreement with respect to any IP Rights, Subscription Service, or Software, whether by implication, statute, inducement, estoppel or otherwise, and QCI and Customer each hereby reserves all of its rights other than the rights expressly granted in this Agreement.  Each Party agrees to assign to the other Party the IP Rights developed by that Party, and does assign such IP Rights upon their creation, to the extent required under the foregoing clauses of this Section 4.1.  Each Party will reasonably collaborate with the other Party to assist the other Party to perfect its ownership and rights to any IP Rights assigned to the other Party under this Agreement.

5.	Confidentiality.
5.1	Each Party will comply with the confidentiality obligations in Schedule B (Confidentiality).

6.	Warranties and Disclaimers
6.1	Warranties.  With respect to each Service made available by QCI to Customer under an Order, QCI warrants to Customer that the respective Service (excluding Third Party Services) will operate substantially in accordance with QCI’s applicable documentation made available by QCI to Customer.  The foregoing warranty in this Section 6.1 will remain in effect for the duration of the applicable Order Term as specified in the respective Order.  
6.2	Performance.  QCI and Customer each warrants and represents that it is a corporation or other legal entity duly organized, validly existing and in good standing with the applicable authorities, and that it has all necessary corporate power and authority to execute and deliver this Agreement and each Order executed by it, and perform its obligations under this Agreement and such Order. 
6.3	Compliance with Laws.  Each Party comply with all laws, rules and regulations applicable to its business and operations in connection with this Agreement.  To the extent applicable, Customer will obtain all consents required under all applicable laws and regulations.
6.4	Mutual Disclaimers.  EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, NEITHER QCI, NOR ANY PARTY AFFILIATED WITH QCI, NOR MICROSOFT, NOR CUSTOMER PROVIDES ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, TO EACH OTHER OR TO ANY THIRD PARTY, WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING ANY IP RIGHTS, SERVICES, SOFTWARE. DATA OR OTHER CONTENT), AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE OR USAGE.  QCI DOES NOT WARRANT THAT THE SERVICES (INCLUDING ANY RELATED SOFTWARE AND HARDWARE) WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES (INCLUDING ANY RELATED SOFTWARE AND HARDWARE) WILL OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE.  RESULTS ARE NOT GUARANTEED AND QCI MAKES NO REPRESENTATION ON THE AVAILABILITY OF THE SERVICES (INCLUDING ANY RELATED SOFTWARE AND HARDWARE).  For clarification, neither QCI nor Microsoft make any warranty under this Agreement to Customer or to any other party in connection with Azure or any other Microsoft product, software, service or data.  As Customer’s sole and exclusive remedy for any warranty breach under this Section 6, QCI will make commercially reasonable efforts to address any material deviations from the applicable QCI documentation that may occur in the operation of Subscription Services and to work with Customer in good faith to address such deviations.  
6.5	Mutual Limitations.  Except for infringement of either Party’s IP Rights, neither Party will be liable for any costs of procurement of substitute deliverables or other products or services, nor for any loss of business, loss of use or of data, interruption of business, lost profits or goodwill, or other indirect, special, incidental, exemplary or consequential damages of any kind arising in connection with this Agreement, even if it has been advised of the possibility of such loss, and notwithstanding any failure of essential purpose of any limited remedy.  This exclusion includes any liability that may arise out of third-party claims.  Except for the obligation to pay the fees due for Services in the normal course of this Agreement under applicable Orders and for infringement of either Party’s IP Rights, under no circumstances shall the total and aggregate liability of all kinds arising out of or related to this Agreement and all Orders, regardless of the forum and regardless of whether any action or claim is based on contract, indemnification obligations, tort or otherwise, exceed for either Party at any point in time the total amount paid to QCI under this Agreement for Services giving rise to such liability over the twelve (12) months prior to that point in time.  The foregoing limitation in this Section 6.5 is cumulative, with all payments for claims or damages being aggregated to determine satisfaction of the limit, and the existence of one or more claims will not enlarge that limit.  Each Party acknowledges that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy.  No claim, suit or action will be brought under this Agreement against either Party more than one year after the related cause of action first occurred.   

7.	Term and Termination
7.1	Agreement Term.  This Agreement becomes effective on the Effective Date and will continue in effect until terminated in accordance with this Section 7 (“Agreement Term”).
7.2	Termination.  
(a)	Termination for Convenience. Either Party may terminate this Agreement or any Order, in whole or in part, at any time, by giving prior 30-day written notice of termination to the other Party, except that neither Party may terminate for convenience (i) any Order before the end of the Order Term defined in that Order, or (ii) this Agreement until all Order Terms included in all Orders have expired.
(b)	Termination for Cause.  This Agreement may also be terminated immediately, by written notice, (i) by either Party in the event of a material breach of this Agreement by the other Party if the circumstances that led to such breach remain uncured for 30 days from receipt of written notice of default, or (ii) by either Party if the other Party ceases to do business, makes an assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or other insolvency proceeding.
7.3	Effect of Termination.  The provisions of Sections 1, 2.3, 2.4, 3 (to the extent that any payment obligations are not completed upon the termination or expiration of this Agreement), 4, 5, 6, 7.3, and 8, and Schedules A and C will survive any termination or expiration of this Agreement.

8.	General
8.1	Assignment.  Neither Party may assign this Agreement or any Order without the express consent of the other Party, except that either Party may assign this Agreement (together with all Orders) without the need to obtain such consent in connection with a corporate reorganization or a sale or transfer of all or substantially all of its stock, assets or business relating to this Agreement, provided that the assignee agrees to assume this Agreement and be bound by its terms.  
8.2	Notices.  All notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement will be in writing and will be personally delivered or sent by overnight courier service to each Party, as applicable, at the address set forth in the preamble of this Agreement or in a relevant Order.  Any other communications between Customer and QCI, including relating to the technical and business collaboration under specific Orders or SOWs, may be conducted over telephone, email, or by other means reasonable under the circumstances and mutually acceptable to Customer and QCI. 
8.3	Relationship of Parties.  The Agreement does not create and will not be construed as creating any relationship of agency, franchise, fiduciary duty, partnership, or employment between the Parties.  This Agreement and relationship are not exclusive for either Party.
8.4	Applicable Law and Venue.  This Agreement and all claims relating to the relationship of the parties contemplated herein, whether or not arising directly under this Agreement, will be governed by and construed and interpreted in accordance with the laws of the State of Connecticut, USA, applicable to contracts entered into and to be performed within that state.  Customer and QCI hereby acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  Company and Customer hereby irrevocably consent to the personal jurisdiction and venue of any State or Federal court located in Connecticut, USA.
8.5	Injunctive Relief.  Notwithstanding anything to the contrary in this Agreement, in the event of a breach under Schedule B (Confidentiality), each Party, without limiting any of its other respective rights or remedies, will be entitled to specific performance and injunctive and/or equitable relief, in addition to other remedies afforded by law, to protect its interests.
8.6	Force Majeure.  Each Party will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, pandemic or other large-scale health-related events, hacking or other cyber-attacks, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failures.
8.7	Construction.  For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”  The headings in this Agreement are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement.  English is the official language of this Agreement.  This Agreement may be translated and/or executed in languages other than English, but the Parties agree that the English version will control.  Each Party waives any rights that it may have under the laws of any country or jurisdiction to have this Agreement written in any local language, or interpreted or superseded by local law in those countries.  
8.8	Miscellaneous.  No amendment or modification of this Agreement will be valid or binding upon the Parties unless made in writing and executed by authorized representatives of each Party, except as otherwise expressly provided in this Agreement.  This Agreement includes all of the attached Schedules, and all such Schedules are expressly incorporated and made a part of this Agreement.  This Agreement supersedes all prior agreements and understandings, including oral representations, between the Parties relating to its subject matter.  In case of any conflict between this Agreement and any SOW, Purchase Order, Quotation or other document, the terms of this Agreement will prevail unless otherwise expressly stated in such SOW, Purchase Order, or document.  Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion, nor will such waiver affect the right of either party to terminate this Agreement.  If any provision in this Agreement is held to be invalid or unenforceable for any reason, such provision will, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other clause in this Agreement, and the provision will be replaced with a provision which, to the extent permitted by applicable law, achieves the purposes intended by the invalid or unenforceable provision.  This Agreement may be executed in counterparts.

 
Schedule A

Definitions

1.	“Authorized User” is an individual authorized by Customer to access the Services on behalf of Customer and for the Customer’s internal business purposes, and otherwise in accordance with this Agreement.  Examples of Authorized Users include employees of Customer assigned to administer and manage the Services on behalf of Customer under this Agreement.  Customer will ensure that each Authorized User is a natural person, and not a legal entity.

2.	“IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents, including utility patents, design patents, utility models, industrial designs, statutory registrations and all other equivalent or similar rights anywhere in the world in inventions and discoveries, together with any applications thereof (“Patents”), (b) copyrights and all other similar rights in Software, documentation, and other works of authorship (“Copyrights”), (c) mask work rights, (d) trade secrets rights and other similar rights in oral and written confidential information, know-how, documentation, technology and Software (“Trade Secrets”), (e) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations, and applications therefore (“Trademark Rights”), (f) rights in mask works, chip topographies, and chip or product layouts and designs; (g) rights in all moral and economic rights of authors and inventors, however denominated; and (h) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software or services.

3.	“Services” means the cloud-based services made available by Company to Customer under this Agreement, as specified in an Order.  Services may include API access, quantum computing hardware access, simulators, emulators, software and other cloud-based services.

4.	“Order Term” means, with respect to any Services specified in an Order, the term identified for those Services in such Order.

5.	“Order” means each order that references this Agreement and that is placed by Customer via the Marketplace and is accepted by the Company.  Orders may be submitted and accepted electronically.

6.	“Software” means (i) computer software and code, in the form made available by QCI to Customer, and (ii) all documentation, including user manuals and training materials, relating to any of the foregoing.   


Schedule B

Confidentiality

1.	Confidential Information” means any information disclosed by either Party to the other Party in connection with this Agreement (each a “Discloser” or “Recipient” of Confidential Information, as applicable).  Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, provided that such information is identified as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that it should be reasonably known under the circumstances as being confidential.  Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items.  The Services and any modifications or extensions made in connection with this Agreement will be the Confidential Information of QCI.  The Customer’s technology, and any modifications or extensions made in connection with this Agreement to Customer’s technology, will be the Confidential Information of the respective Customer.  Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.

2.	Obligations.  With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as expressly permitted under this Agreement and only to the extent necessary, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities).  Recipient further agrees to keep confidential the terms of this Agreement.  Recipient will not reverse engineer, disassemble or decompile any Services or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.  

3.	Customer Data.  Customer will own all data that Customer inputs or processes through the Services (such data “Customer Data”).  Customer will comply with all applicable laws in the course of collecting, storing and using the Customer Data.  [Customer grants to QCI and its affiliates the right to use, transfer, store, duplicate, analyze, modify the Customer Data to provide, improve or develop our products and services, including to assist Customer to configure and use the Services.  QCI has the right to create anonymized and aggregated data based on the Customer’s use of the Services (“Anonymized Data”), provided that the Anonymized Data does not identify Customer or any other party, and cannot be processed to retrieve the original Customer Data.  QCI will own all Anonymized Data.  Customer is responsible to back up and retain a copy of its Customer Data.

4.	Deletion of Data.  Upon any termination or termination of this Agreement or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement (together with all copies and derivatives of such Confidential Information), except that (a) Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy or as required by applicable laws, and (b) Recipient may continue to hold and use any Confidential Information received from the Discloser to the extent that such Confidential Information is anonymized and used in accordance with all applicable laws and regulations.