These Website Terms of Use, together with any supplemental terms, notices, and policies available at qubit.ai/legal, and/or any other binding document signed between the parties (“Terms”) govern your use of the Qubit websites, including the Qubit Chat interface (together, our “Sites”). These Terms are a contract between Qubit, Inc. (“Qubit”, “us”, “we”, “Company”), and You, whether you are an individual user, or a user on behalf of a company or team (“User”, “Customer”, “You”). By accessing the Sites you agree to these Terms.

YOUR CONTINUED ACCESS AND USE OF THE SERVICE ARE CONDITIONAL ON YOUR ACCEPTANCE OF AND CONTINUED COMPLIANCE WITH THE TERMS. By accessing or using the Service in any manner, including, but not limited to, visiting or browsing the Sites, registering an account, or contributing content or other materials to the Sites, you expressly understand, acknowledge and agree to be bound by these Terms. In addition to these Terms, our Privacy Policy governs how Qubit collects, stores, and protects your information when you use the Services.

We may change or update the Terms from time to time. Changes will be effective 10 days following posting on the Site. You accept any changes by your continued use of the Sites 10 days following such posting.

We may also post and update additional terms for specific services on the Sites, and such additional terms will also apply to you.

Please note: Our Cloud Terms of Service govern your use of any Qubit API key and any other Qubit offerings that reference the Cloud Terms of Service.

1. DEFINED TERMS
   “Account” is the account that you, or your entity, will create on the Website to access, use or purchase Services.

“Services” means the products and/or services we offer or provide, that you access, use or purchase.

“Organization” refers to a workspace representing a legal entity and/or several Users.

“Content” refers to any material posted, displayed, or accessed on our Sites and Services, including code, text, data, graphics, images, applications, or software you, we, or any third party may provide.

2. USE OF OUR SERVICES

You must use our Sites in strict compliance with these Terms and all applicable laws or regulations in the relevant jurisdiction(s).

We may at any time modify, suspend, or discontinue, temporarily or permanently, the Sites (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites.

3. ACCOUNT CREATION

To access certain features of our Sites we may ask you to create an Account. You agree to provide correct, current, and complete Account information and allow us to use it to communicate with you about our Services. Our communications to you using your Account information will satisfy any requirements for legal notices.

You may not share your Account login information with anyone else. You also may not make your Account available to anyone else. You are responsible for all activity occurring under your Account, and you agree to notify us immediately if you become aware of any unauthorized access to your Account by submitting a request to the Qubit Support Portal.

In order to create an Account for yourself or for your organization on our Site, you must be a natural person of at least age 13, or the minimum age required in your country to consent to use the Sites, or a legal entity duly registered. If you are creating an Account on behalf of an organization, you represent that you have the authority to act on behalf of your organization and bind your organization to these Terms.

In some cases, we may permit you to evaluate our Sites for a limited time or with limited functionality. Use of our Services for evaluation purposes are for your personal, non-commercial use only. You may need to accept additional terms to use certain features and functionalities on the Sites. These additional terms will supplement our Terms for those services and may change your rights or obligations for those services, including your obligations to pay fees.

4. YOUR CONTENT

You represent and warrant that you have ownership, control, and responsibility for the Content you post or otherwise make available on our Site, or otherwise have the right to do so. Your Content must not be misleading or unlawful, and must not violate any of these Terms, Acceptable Use Policy, applicable law and regulation, or infringe or misappropriate any rights of any person or entity. Qubit may remove or edit any Content (including comments or reviews) in our sole discretion for any reason.

While you own any Content you create, by posting or otherwise making Content available on our Sites you may be granting certain rights to Qubit and other users. You grant Qubit a worldwide, royalty-free, perpetual, sublicensable, right and license to use, display, publish, reproduce, distribute, or otherwise make available to others as permitted under these Terms and our Privacy Policy.

Any Content you download, access, or use from us or another user, is at your own risk and subject to these Terms and/or the terms accompanying such Content.

5. THIRD PARTY LINKS AND TOOLS

Certain content, products, services, and tools available via our Sites may include materials from third parties provided as a convenience for Users.

Third-party links on this site may direct you to third-party websites not affiliated with Qubit. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or any other materials, products, or services of third parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party. In addition and subject to our Privacy Policy, we aggregate, anonymize, or otherwise learn from data relating to your use of the Site and Services and use the foregoing to improve the same.

6. INTELLECTUAL PROPERTY RIGHTS

Qubit retains ownership of all intellectual property rights related to the Sites, including all improvements to such.

If you provide feedback relating to the use, operation, performance, or functionality of our Sites (“Feedback”), you hereby grant Qubit a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive right and license to exploit and commercialize such Feedback for any purpose which shall be solely and exclusively owned by Qubit. You are not entitled to any compensation or reimbursement for Feedback unless expressly agreed in writing.

7. DMCA POLICY

We comply with the Digital Millennium Copyright Act Policy (DMCA). If you believe that material located on or linked to our Sites violates your copyright, you are encouraged to notify us following the DMCA guidelines. To do so, please send an email to legal@qubit.ai with the Subject Line “DMCA Notice” with detailed and accurate information supporting your claim.

8. TERMINATION

You may decide to cancel your Account whenever you want, at your sole discretion.

We may do the same, and we reserve the right to suspend or terminate your access to the Sites anytime with or without cause, and at our own discretion, with or without notice.

Upon termination or cancellation Qubit may, without obligation to do so (unless otherwise required by applicable law), delete any of your content or data in its possession including deleting all file systems, storage blocks, virtual machines, and any usage data associated with the account without liability; provided, however, Qubit may maintain a copy of any information in accordance with Qubit’s data retention practices and our Privacy Policy.

The provisions of these Terms concerning the protection of intellectual property rights, prohibited use, user-submitted Content, disclaimers, limitations of liability, indemnity, and Disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.

9. ERRORS AND OMISSIONS

On occasion, information on our Sites may contain errors, including typographical errors, inaccuracies, or omissions. Qubit reserves the right to, at any time without prior notice, correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate (including after you have submitted your order). In the event that an item is listed at an incorrect price or with incorrect information due to an error in pricing or product information, Qubit shall have the right, at our sole discretion, to refuse or cancel any orders placed for that item.

10. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SITES ARE PROVIDED “AS IS”. WE DO NOT WARRANT THAT THE SITE OR ANY SERVICE, CONTENT, FUNCTIONS, OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. QUBIT ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT OR HARM, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.

11. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE, BY YOUR USE OF THE SITES THAT QUBIT WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE OUR SITES, INCLUDING FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, OR NETWORK OR INTERNET FAILURE, OR INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF QUBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL QUBIT’S TOTAL LIABILITY FOR ANY CLAIMS RELATED TO THIS SERVICE EXCEED THE AMOUNT PAID FOR THE SERVICE OR PRODUCT PROVIDED.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, QUBIT, ITS AFFILIATES’, AGENTS’, LICENSORS’, AND SUPPLIERS’ DAMAGES IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

12. INDEMNITY

You are solely and fully responsible for your use of the Sites. You agree to defend, indemnify and hold Qubit and its directors, officers, employees, agents, or service providers harmless from any and all claims, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising directly or indirectly out of or from (i) your breach of any provision of these Terms; (ii) your activities in connection with our Sites; or (iii) the Content or other information you provide to us through the Services. Qubit reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Qubit’s defense of such claim.

13. MISCELLANEOUS

Governing law and dispute resolution. These Terms and all matters regarding their interpretation and/or enforcement are governed by the laws of the State of California, excluding its choice of law rules. If a dispute or claim relating to these Terms arises, we each agree to make a reasonable and good-faith effort to agree on an out-of-court solution and to resolve the dispute. If no out-of-court settlement is reached, any related action, lawsuit, or proceeding must be brought and adjudicated exclusively by state or federal courts located in the State of California, United States of America. Any claim, action, suit, or proceeding relating to these Terms must be brought by you within one year of the event that gave rise to the claim or such claim is hereby waived to the maximum extent permitted by law.

Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Qubit without restriction.

Export Control and Sanctions. You may only access and use the Sites in compliance with U.S. and other applicable export control and sanctions laws and regulations. You may not export or provide access to the Sites into any U.S. embargoed countries or to anyone on (i) the U.S. Treasury Department’s list of Specially Designated Nationals, (ii) any other restricted party lists identified by the Office of Foreign Asset Control, (iii) the U.S. Department of Commerce Denied Persons List or Entity List, or (iv) any other restricted party lists. You represent and warrant that you and anyone accessing or using the Sites on your behalf, or using your Account credentials, are not such persons or entities and are not located in any such country.

Entire Agreement. These Terms and any other legal notices published on the Site, shall constitute the entire agreement between you and us concerning the Sites and supersedes all prior terms, agreements, discussions and writings regarding the Sites.

Severability. If any provision of these Terms, by action of law or for any other reason, is held to be prohibited, invalid, void, or unenforceable in any relevant jurisdiction, such provision will be stricken, and the remaining provisions of these Terms will remain in full force and effect.

No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

14. CONTACT US

We welcome your questions and comments about these Terms. You may contact us by email at legal@qubit.ai, or by writing to us at Qubit, Inc. 2510 Zanker Rd., San Jose, CA 95131.
Qubit Hardware Terms of Sale
These Hardware Terms of Sale (“Agreement”) governs the purchase and use of the goods and ancillary services provided by Qubit, Inc., a Delaware corporation (“Qubit”, “us”, “we”, “Company”), and You, whether you are an individual Customer, or an individual purchasing on behalf of a company or team (“User”, “Customer”, “You”). This Agreement shall apply to all goods and ancillary services purchased from Qubit, on https://qubit.ai or other Qubit websites, through a reseller, through a Qubit sales associate, or through a third party ecommerce platform to the exclusion of any additional terms submitted by the Customer including those which may be included as part of a purchase order. By placing an order with Qubit, You agree to and are bound by this Agreement.

1. DEFINITIONS

1.1 “Affiliate” of a Party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

1.2 “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Qubit’s Confidential Information shall include the Qubit Property and the terms of this Agreement and all Orders. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

1.3 “Hardware” means computer hardware and computer peripherals sold by Qubit. “Software” refers to computer programs and code pre-installed on the Hardware or made available for download by Qubit. “Support Services” are Qubit’s service offerings for maintenance and support of Qubit Hardware and Software and requests are submitted at https://support.qubit.ai/. These offerings are collectively referred to as “Products”.

1.4 “Order” means an ordering document for the Products that has been accepted by Customer (if online) or otherwise mutually agreed to by the Parties and which is governed by this Agreement.

1.5 “Warranty Period” refers to the duration of the Qubit standard limited warranty, commencing upon Customer’s receipt of the Product and continuing for the period specified in the applicable Order.

2. QUOTING AND ORDERING

2.1 Order Placement. All Orders are subject to acceptance by Qubit. All Customer POs must list the Quote ID referenced in the Order provided by Qubit. Qubit is not responsible for typographical, pricing, or product information errors on Customer POs.

2.2 Quoting Expiration. Quotes shall be valid until the latter of either (a) an explicit quote expiration date indicated on the applicable Quote, or (b) thirty (30) days after the Quote date.

3. PRODUCT DELIVERY

3.1 Shipment and Delivery. Qubit shall arrange for shipment and delivery of the Products to the ship to address indicated in the applicable Order. Delivery dates represent a best approximation of current lead times. Qubit shall ship Products in standard commercial packaging, unless Customer has opted out of Qubit’s shipping methods and has requested to use their own shipping account. Should Customer use their own shipping account for delivery of the Products, Qubit will not be liable for any shipping damage.

3.2 Transfer of Risk and Title; Costs

Domestic Orders. All shipments are made FOB Origin. Unless otherwise agreed, all transportation costs, any special or export packaging requested by Customer, and Qubit transit insurance on behalf of Customer shall be included in the total price stated on the Order. Notwithstanding the foregoing, Customer shall be solely responsible for obtaining additional liability insurance.

International Orders. For international shipments outside the United States, the applicable International Commercial Terms shall be Ex Works (EXW) as published by the International Chamber of Commerce. For the avoidance of doubt, Customer assumes all responsibilities for all costs associated with transportation to the destination, including duties and other costs payable upon import.
4. RETURN MERCHANDISE AUTHORIZATION (“RMA”) AND EXCHANGES

4.1 Repairs or Replacements within 30 Days. If the Hardware has concealed damage (i.e., there is no evident damage to external packaging related to shipping), is defective, malfunctions, does not conform to the specifications in the Order, or is dead on arrival (“DOA”), Qubit will provide a repair or replacement of the Hardware provided that:

Customer has contacted Qubit Support and obtained a RMA Number, which will be associated with a Qubit designated facility return address;
The Hardware being returned is in its original packaging and condition; and
The Hardware being returned is in transit to Qubit within 30 calendar days of its delivery to Customer.
Replacements are provided at Qubit’s discretion. Qubit’s replacement will not include any third party component customizations by Customer. Products returned via this RMA process may be, at Qubit’s sole discretion, replaced by new, refurbished, or similar versions of the same components rather than being repaired.

4.2 Returns. Hardware may be returned to Qubit within 30 days of receipt for a refund, at Qubit’s sole discretion. Customer is responsible for the cost of shipping the Hardware to Qubit. A 15% restocking fee will be subtracted from the total refund amount to Customer.

5. SOFTWARE LICENSE

Customer’s rights to use the Software delivered by Qubit are governed by the terms of the applicable end-user license agreement(s). Qubit will provide a copy of the applicable terms upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Products with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Products.

6. SUPPORT SERVICES

6.1 Scope and Term. Qubit shall provide Support Services for the product purchased during the term listed on the Order. The scope of the Support Service can be found at Hardware Support. Unless otherwise agreed in an Order, the Support Services start on the commencement date of the applicable Warranty Period.

6.2 Repairs. For any issues with the Products, Customers must first contact Qubit Support to obtain an RMA Number. Qubit Support will attempt to troubleshoot the issue remotely. However, in cases where the root cause cannot be fully determined through remote diagnostics, a physical inspection and repair of the Hardware is required. For Hardware that is out of the Warranty Period, Customer is responsible for covering the cost of shipment of the defective unit to our repair facility. Upon inspection, Qubit will: (a) repair or replace the faulty Hardware (at our discretion), and (b) ship the Hardware back to the Customer.’

7. INVOICING, PAYMENT TERMS, & TAXES.

7.1 Fees. Customers shall pay all fees for the Product(s) within the payment terms specified in the Order. Qubit shall invoice Customer upon the shipment of the Product. Payment obligations are non-cancelable and fees paid are non-refundable, except as otherwise expressly set forth in this Agreement. All fees are to be paid by Customer in United States Dollars (USD).

7.2 Invoices and Payment. Customer shall provide a valid credit card or other payment method accepted by Qubit (“​Payment Method”). Customer agrees that Qubit is authorized to charge the elected Payment Method for all fees in the applicable Order, when due, and any other charges Customer may incur in connection with the Products. If Customer provides a credit card as Payment Method, Customer agrees to provide Qubit with complete and accurate billing contact information and notify Qubit of any changes to such information. Customer shall reimburse Qubit for all chargebacks and fees for declined or disputed transactions charged to Qubit by its third party payment processor. If Qubit does not collect a Payment Method from Customer at the time of purchase, Qubit will invoice Customer for the fees at the bill to the email address on file with Qubit. Invoices not paid by the due date specified in the applicable invoice shall be overdue and subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection including reasonable attorneys fees. Interest shall not accrue if a good faith dispute exists as to Customer’s obligation to pay all or a portion of the fees. Qubit reserves all rights, remedies, claims and causes of action available in law and equity related to Customer’s failure to pay.

7.3 Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from Qubit’s provision of the Products hereunder, except any taxes assessed upon Qubit’s net income (collectively, “Taxes”). Unless otherwise stated, Qubit’s pricing policies and invoices do not include and are not discounted or enhanced for any such Taxes. If Qubit is required to directly pay Taxes related to Customer’s use or receipt of any Products, Customer agrees to promptly reimburse Qubit for any amounts paid by Qubit. Customer shall provide Qubit with all reasonable information and documentation requested by Qubit regarding the Taxes which are or were due (or which may be due) under this Agreement. Customer is responsible for complying with all applicable use tax and consumption tax in the applicable jurisdiction.

8. WARRANTY

8.1 Generally. Qubit standard limited warranty extends exclusively to the original purchaser of the Hardware and is void in the event that the title to the Hardware has transferred. QUBIT STANDARD LIMITED WARRANTY DOES NOT INCLUDE ONSITE SERVICE.

8.2 Product Warranty. Qubit warrants that the Products (including all systems built/configured or components installed by Qubit), under normal usage and with regular recommended service, will be free from material defects (“Standard Limited Warranty”) during the Warranty Period. The following are excluded from the Standard Limited Warranty: (a) damage caused by accident, abuse, misuse, improper installation, or unauthorized modification, (b) operation outside of recommended environmental or electrical specifications, (c) cosmetic damage or wear and tear not affecting hardware function, or (d) data loss or third-party applications. For any breach of the above warranty, Qubit will, at no additional cost to Customer, use commercially reasonable efforts to provide remedial services necessary to enable the Product(s) to conform to the warranty. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranty.

Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE PRODUCTS ARE PROVIDED “AS-IS”; (2) QUBIT MAKES NO ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO CUSTOMER OR ANY USER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) QUBIT HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) QUBIT’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES.
8.3 Third Party Products.

Software. Third party software applications, including operating systems, installed by Customer are not covered under Qubit’s Standard Limited Warranty. Qubit’s Standard Limited Warranty covers system support only for Software installed by Qubit.
9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

9.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.

10. INDEMNIFICATION

10.1 Qubit Indemnification. Qubit will defend, indemnify and hold Customer, its employees, directors and officers (the “Customer Indemnified Parties”) harmless from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party against a Customer Indemnified Party alleging that the Product purchased by Customer infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Product is likely to, in Qubit’s sole opinion, or does become the subject of an Infringement Claim, Qubit may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Orders and refund to customer prepaid unused Fees for the infringing items. Qubit shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use of the Product in combination with any software, hardware, network or system not supplied by Qubit if the alleged infringement relates to such combination; (2) any modification or alteration of the Services (other than by Qubit); or (3) Customer’s violation of applicable law, third party rights or this Agreement (collectively, the “Excluded Claims”). THE FOREGOING STATES THE ENTIRE LIABILITY OF QUBIT AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS RELATING TO THE PRODUCTS. EXCEPT AS EXPRESSLY STATED HEREIN, ALL WARRANTIES, REPRESENTATIONS AND/OR CONDITIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED, ARE DISCLAIMED.

10.2 Indemnification Conditions. The Parties’ obligations under this Section 9 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 9, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party (except to the extent affecting Customer’s continued use of the Service) without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 9 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.

10.3 Limitation. Neither Qubit nor Customer shall be liable for any claims brought more than two years after purchase.

11. CONFIDENTIALITY

11.1 Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, or agents who need to know such information in connection with such Party’s exercise of its rights or performance of its obligations hereunder and who are bound by written agreements requiring the protection of such Confidential Information.

11.2 Compelled Disclosure. If the Receiving Party is compelled by law, any court or law enforcement agency or authority (e.g., via a valid court order or subpoena) to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (if legally permitted). In such case, the Disclosing Party shall reimburse Qubit for excessive costs incurred by Qubit in connection with complying with such request, including costs of attorneys for time spent retrieving, reviewing and preparing responsive documents.

12. TERM AND TERMINATION

12.1 Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 10.3.

12.2 Term of any Order. The term of each Order shall commence on the effective date stated in the Order and continue for the period stated therein.

12.3 Termination. Either Party may terminate this Agreement by providing written notice to the other Party in the event the other Party (i) materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (a) cure such breach within 30 days after receipt by the breaching Party of written notice specifying the breach, or (b) if the breaching Party is incapable of curing such breach within 30 days, provide the other Party with an acceptable plan for curing such breach within 10 days after receipt of such notice and thereafter curing such breach in accordance with such plan; or (ii) ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within 90 days of filing. Where there are no Orders in effect, either Party may terminate this Agreement by providing written notice to the other Party.

12.4 Surviving Provisions. Any provision which by its nature is intended to survive the termination or expiration of this agreement shall survive.

13. MISCELLANEOUS

13.1 Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Qubit will be considered an independent contractor when performing any Services hereunder.

13.2 Customer Affiliates. An Affiliate of Customer may purchase Products subject to the terms of this Agreement by executing Orders with Qubit hereunder. By entering into an Order hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

13.3 Notice to California Residents. If Customer is a California resident, under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint or to receive further information regarding use of the Services.

13.4 Modification; Waiver. No modification of this Agreement will be legally binding against the other Party unless in writing and signed or electronically accepted by both Parties; provided, however, if Qubit updates this Agreement, the updated version of this Agreement shall be binding upon the. The failure of any Party in any one or more instances to insist upon strict performance of any terms or provisions of this Agreement or any Order, or to exercise any option or remedy which is conferred in this Agreement or any Order, shall not be construed as a waiver, or relinquishment to any extent of the right to assert or rely upon any such terms, provisions, options, or remedies on any future occasion. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of the Party granting the waiver.

13.10 Government Use. Qubit provides the Products, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, then it must negotiate with Qubit to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

13.11 Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Qubit not being able to provide the Services for a period of more than 30 days, then either Party may terminate the Agreement upon written notice to the other Party.

13.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.13 Customer Reference. Customer agrees that Qubit may identify you as a customer of Qubit goods and services, use your name and logo in sales collateral, marketing materials, case studies, web customer profiles, and for promotional purposes.

13.14 Entire Understanding. This Agreement (including all Order(s), which are incorporated herein by reference) constitute the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order, the terms of such Order shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation provided by Customer are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.

Qubit Refund Policy
Qubit stands by our hardware products. That’s why we offer a 30 day return policy for any hardware purchased at retail pricing as listed on Qubit’s website.. However, we do not offer returns for custom orders quoted by one of our sales representatives, orders with custom components, or otherwise quoted at a price that is discounted from retail pricing. For more details, please see our Terms of Sale.

Qubit Acceptable Use Policy
This Acceptable Use Policy (“AUP”) describes material and activities that are not allowed in connection with products, systems, and services offered by Qubit, Inc. (“Qubit”). This AUP applies to all users of the Services and is incorporated by reference into any applicable agreement between You and Qubit. Capitalized terms used herein, but undefined will have the meaning given to such terms in the Agreement. This AUP is not exhaustive, and Qubit reserves the right to take remedial action in connection with content or uses that are not specifically described below. THIS AUP APPLIES EQUALLY TO CUSTOMER AND CUSTOMER’S USERS. CUSTOMER IS RESPONSIBLE TO ENSURING USERS COMPLY WITH THIS POLICY. IF YOU DO NOT AGREE TO BE BOUND BY THIS AUP, YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICES.

No infringing, illegal, threatening, defamatory, or offensive uses. You shall not use the Services to violate any applicable laws, rules, or regulations issued or promulgated by any competent government authority. Without limiting the foregoing, You shall not use the Services for, or in connection with, the following:

theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property or proprietary information;fraud, forgery, or theft or misappropriation of funds, credit cards, or personal information;
fraud, forgery, or theft or misappropriation of funds, credit cards, or personal information;
export, re-export, or transfer of restricted software, algorithms, or other data in violation of applicable export control laws;
deceptive practices such as posing as another service for the purposes of phishing or pharming;
distributing any materials of a threatening or harmful nature, including, without limitation, threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, which harm Qubit’s reputation, or which facilitate extortion; or
distributing any offensive materials, including, without limitation, materials that are obscene, constitute illegal pornography, indecent, or hateful and materials which promote illegal gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Security and Interference. You shall not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with Qubit’s ability to provide the Services, or that otherwise may create legal liability for Qubit in Qubit’s sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider or domain name registry. Without limiting the foregoing, You shall not use the Services for, or in connection with, the following:

hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization;
unauthorized probes or port scans for vulnerabilities;
unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system;
web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled;
unauthorized network monitoring or packet capture;
forged or non-standard protocol headers, such as altering source addresses;
flooding;
Denial of Service (DoS) attacks of any kind;
distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code;
operating network services such as: open proxies; open mail relays; or open, recursive domain name servers;
use that is beyond commercially reasonable limits and that negatively impacts Qubit’s ability to provide the Services; or
sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the terms and this AUP.
Certain High Risk Activities. You shall not use the Services in support of mining of cryptocurrency including but not limited to BitCoin or any similar currency. Additionally the Services are not intended for use with high risk activities such as the operation of nuclear facilities, air traffic control, life supporting systems, or any other use where failure of service could lead to death, personal injury, or environmental damage.‍
Spam. You shall not use the Services for purposes of distributing “spam” emails, bulk unsolicited instant messages, or any other form of unsolicited electronic communications distributed on a bulk basis including commercial advertising and informational announcements. Additionally, You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather, or assemble information or data of users, including, but not limited to, email addresses, without their consent. You must comply with the laws and regulations applicable to bulk or commercial email in your jurisdiction. In addition, your bulk or commercial email must meet the following requirements:
Export. You shall ensure Products and Services are not used in breach of export laws, controls, regulations or sanction policies of the United States and any other relevant export laws and regulations applicable to the Services including Customer’s applicable jurisdiction. You shall ensure Products and Services are not used by any person or entity suspected of involvement or affiliation with those involved in activities or causes relating to: human trafficking; illegal gambling; terrorism; narcotics trafficking; arms trafficking or the proliferation, development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction, or missiles. You acknowledge that the Services are designed with capabilities for You and Your Users to access the Services without regard to geographic location and to transfer or otherwise move Your content between the Services and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer or Your content. By using the Services You represent and agree that You are not located in a prohibited geographic area nor are You subject to sanctions or applicable trade control restrictions.
Other. You must have valid and current information on file with your domain name registrar for any domain hosted on the Qubit network. You may only use IP addresses assigned to you by Qubit in connection with your Qubit Service. You agree that if you register a DNS record or zone on Qubit-managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars’ WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, Qubit may modify, transfer, or delete such records or zones.
Violations. To report any violation of this AUP or make related inquiries, please contact us at legal@qubit.ai. We reserve the right, but have no obligation, to investigate any suspected violation of this AUP or misuse of Qubit’s products and services. In connection with such investigations, we may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Such reporting may include disclosing, reviewing and preserving appropriate customer information consistent with applicable law.
Rights and Remedies. If we determine, in our sole discretion, that you have violated this AUP, we may remove, disable access to, or modify any content or resource and/or to suspend or terminate your use of the Services. We also may intercept or block any content or traffic belonging to you or to users where the Services are being used unlawfully or not in accordance with this AUP. Our right to suspend or terminate your use of the Services applies even if a violation is committed unintentionally or without your authorization. Such right is not an obligation on us to act at any given time or with respect to any given Subscriber, and we may exercise such right at any time within our sole discretion.
Changes to this Policy. We may modify this AUP by posting a revised version on the Qubit site. By using the Services or accessing the site, you agree to the latest version of this Policy.

Qubit Cloud Terms of Service
YOU AGREE THAT BY PLACING AN ORDER THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THESE TERMS OR BY ENTERING INTO AN ONLINE TRANSACTION FOR SERVICES (THE “ORDER”), OR BY USING QUBIT CLOUD SERVICES, YOU ARE AGREEING TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER AND THESE TERMS. IF YOU ARE PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THE ORDER AND THESE TERMS AND, IN SUCH EVENT, “YOU”, “YOUR”, AND “CUSTOMER” AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER AND THESE TERMS, YOU SHALL NOT PLACE AN ORDER OR USE PRODUCTS OR SERVICES OFFERINGS.

These Cloud Terms of Service (the “Agreement”) are between You (the Customer) and Qubit, Inc. or its Affiliate (“Qubit”) each a Delaware company with offices at 2510 Zanker Rd. San Jose, CA 95131. Customer and Qubit are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions
   “Acceptable Use Policy” means the Acceptable Use Policy published at qubit.ai/legal/terms-of-service#acceptable-use-policy as may be updated from time to time at Qubit’s sole discretion.

“Affiliate” of a Party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

“Authentication Key” means any access key, application key or authentication key necessary for utilizing an Authorized API.

“Authorized API” means the application programming interfaces developed and enabled by Qubit that permit Customer to access certain functionality provided by the Services.

“Beta Services” means the features and/or functionality of the Services that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.

“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Qubit’s Confidential Information shall include the Qubit Property and the terms of this Agreement and all Orders. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

“Customer Property” means any data (including source code, content, text, images, illustrations, charts, tables and other materials) supplied by Customer to Qubit, either directly or indirectly (for example, through the Service or integration with a Third Party Product).
“Documentation” means all documentation and other instructional material made generally available by Qubit to its customer base regarding the use of the Services.

“Qubit Property” means (i) the Services, (ii) the Documentation, and (iii) all content and other materials and software supplied by Qubit in connection with, or used by Qubit in providing, the Services.

“Order” means an order for the Services that has been accepted by Customer (if online) or otherwise mutually agreed to by the Parties and which is governed by this Agreement.

“Privacy Policy” means the Privacy Policy published at qubit.ai/legal/privacy-policy as may be updated from time to time at Qubit’s sole discretion.

“Subcontractor” means any third-party data processor engaged by Qubit that receives Customer Property from Qubit for processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by Qubit) and the terms of its written subcontract with Qubit, including a third party data center, and/or development, production, maintenance, marketing, financing, and customer support providers in connection with any of the Services.

“Services” means the software services and platform provided by Qubit, including (i) the web and other user interfaces, applications, and software provided to Users, (ii) the Authorized APIs and (iii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.

“Third Party Products” means certain third party applications, systems, or services used by Customer, but not supplied by Qubit, that are designed to interoperate with the Services (for example, third-party cloud services purchased by Customer from the applicable third party, independent of this agreement).

“Users” means all users that access Customer’s account on the Services.

2. Services

a. Provision of Services. Subject to the payment of all applicable Fees and for the Term, Qubit hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Services in accordance with the terms and conditions of this Agreement and all Orders.

b. Orders. Each Order for the Services will describe additional mutually agreed-upon limitations on use of the Service, including, the applicable Fees and other relevant terms and conditions. Unless otherwise specified in an Order, the Fees applicable to each Order shall be made available to customer at qubit.ai/service/gpu-cloud/pricing (which may be updated from time to time by Qubit) and/or in the user interface prior to Customer accepting an Order.

c. Platform Guidelines. Customer hereby acknowledges that it will at all times comply with, and ensure that all of its Users comply with, the platform guidelines published at qubit.ai/legal/terms-of-service#platform-guidelines, which are hereby incorporated by reference (the “Platform Guidelines”).

3. Fees and Payment Terms

a. Fees. Customer will pay Qubit all fees specified in or otherwise incurred pursuant to an Order (“Fees”) in accordance with this Section 3 and the applicable Order. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.

b. Invoices and Payment. Unless otherwise specified in the Order, all fixed fees are due at the time of order or according to the interval indicated. By providing a credit card or other payment method accepted by Qubit (“​Payment Method”) for the Services, Customer agrees that Qubit is authorized to charge the elected Payment Method on a recurring basis for all applicable Fees, when due, and any other charges Customer may incur in connection with Customer’s use of the Services. For all purchased Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order. In addition, Customer shall reimburse Qubit for all chargebacks and fees for declined or disputed transactions charged to Qubit by its third party payment processor. If Qubit does not collect a Payment Method from Customer at the time of purchase, Qubit will invoice Customer for the charges at the email address on file with Qubit. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection including reasonable attorneys fees.

c. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from Qubit’s provision of the Services hereunder (collectively, “Taxes”), except any taxes assessed upon Qubit’s net income. Unless otherwise stated, Qubit’s pricing policies and invoices do not include and are not discounted or enhanced for any such Taxes. If Qubit is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse Qubit for any amounts paid by Qubit. Customer shall provide Qubit with all reasonable information and documentation requested by Qubit regarding the taxes which are or were due (or which may be due) under this Agreement.

d. Credits. Qubit may, at its sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns, prepaid credits and discretionary customer service fee adjustments. Qubit reserves the right to award credits at its sole discretion. Credits have no monetary or cash value, can only be used by Customer to offset Customer’s subsequent payments of Fees for the Services, and are revocable or subject to early expiration at any time and for any reason or no reason by Qubit, including for abuse, misrepresentation of account information, unauthorized transfer, or illegal conduct. Credits may only be applied to Fees due for the Services specifically identified by Qubit when issuing the credit and may be subject to other disclosures, terms and conditions presented to Customer at the time the Credit is issued. Credits can only be used by Customer and are non-transferable. Unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.

4. Proprietary Rights

a. Customer Property. As between Customer and Qubit, Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to Qubit or implied hereby, and for any Customer Property that is licensed to Qubit, no title or ownership rights are transferred to Qubit with such license.

b. Qubit Property. As between Qubit and Customer, Qubit retains all right, title, and interest in and to the Qubit Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Qubit Property. Except as expressly set out in this Agreement, no right, title, or license under any Qubit Property is granted to Customer or implied hereby, and for any Qubit Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license.

c. Licenses to Qubit. Customer hereby grants Qubit a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Customer Property made available to Qubit or any of its Affiliates, solely as necessary for Qubit to provide the Services to Customer and exercise its rights pursuant to this Agreement. Additionally, unless otherwise agreed to on the Order Form, Customer grants Qubit a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services. By submitting to Qubit any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Services (“Feedback”), Customer and its Users (as applicable) grant to Qubit a perpetual, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Services in any manner.

5. Data Privacy and Security

a. Hosting and Processing. When purchasing Services, Customer consents to the hosting of Customer Property in, and transfer of Customer Property into, the United States. Unless otherwise agreed in writing between the Parties in the Order Form, Customer (i) agrees that Qubit may transfer and store Customer Property in other geographic regions or jurisdictions at its sole discretion and (ii) Customer represents and warrants that such hosting and transfer are adequately consented to by Customer and permissible pursuant to applicable laws, regulations, rules, and third party rights.

b. Security. Subject to Customer’s compliance with its obligations in this Agreement to properly configure and implement necessary security controls in connection with its use of the Services, Qubit will implement reasonable and appropriate measures to secure the Customer Property against accidental or unauthorized access, transmission, loss or disclosure. Unless otherwise expressly specified by an applicable Order, Qubit shall have no obligation to maintain Customer Property, backup Customer Property, or otherwise store Customer Property on behalf of Customer or any User.

c. Data Processing Agreements. Where the Parties execute a Data Processing Agreement (“DPA”), the DPA shall be hereby incorporated by reference herein and become a part of this Agreement.

d. Subcontractors. Customer acknowledges and agrees that Qubit may use Subcontractors, who may access Customer Property, to provide, secure and improve the Services. Qubit shall be responsible for the acts and omissions of its Subcontractors to the same extent that Qubit would be responsible if Qubit was performing the services of each Subcontractor directly under the terms of this Agreement.

e. In-Product Cookies. Whenever Customer or Users interact with the Services, Qubit automatically receives and records information on its server logs from the browser or device, which may include an IP address, “cookie” information, and the type of browser and/or device being used to access the Services. When Qubit collects this information, it only uses this data to (i) provide the Services or (ii) in aggregate form, and not in a manner that would identify Users personally.

6. Confidentiality

a. Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, or agents who need to know such information in connection with such Party’s exercise of its rights or performance of its obligations hereunder and who are bound by written agreements requiring the protection of such Confidential Information.

b. Compelled Disclosure. If the Receiving Party is compelled by law, any court or law enforcement agency or authority (e.g., via a valid court order or subpoena) to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (if legally permitted). In such case, the Disclosing Party shall reimburse Qubit for excessive costs incurred by Qubit in connection with complying with such request, including costs of attorneys for time spent retrieving, reviewing and preparing responsive documents.

7. Warranties; Disclaimers

a. Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

b. Customer Warranties. Customer represents, warrants and covenants, that at all times it (a) exclusively owns, or has all necessary rights and authorizations to process or otherwise use or handle Customer Property, and (b) will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party.

c. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) QUBIT MAKES NO ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO CUSTOMER OR ANY USER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) QUBIT HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) QUBIT’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES.

d. Beta Services. Qubit may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered “Services” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by Qubit); however, all restrictions, Qubit’s reservation of rights and Customer’s obligations concerning the Service, and use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by Qubit. Qubit may discontinue Beta Services at any time in its sole discretion and may never make them generally available.

8. Indemnification

a. Indemnification by Qubit. Qubit will defend, indemnify and hold Customer, its employees, directors and officers (the “Customer Indemnified Parties”) harmless from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party against a Customer Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Services is likely to, in Qubit’s sole opinion, or does become the subject of an Infringement Claim, Qubit may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Orders and refund to customer prepaid unused Fees for the infringing items. Qubit shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to Qubit of any Customer Property; (2) use of the Services in combination with any software, hardware, network or system not supplied by Qubit if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Qubit); or (4) Customer’s violation of applicable law, third party rights or this Agreement (collectively, the “Excluded Claims”).

b. Indemnification by Customer. Customer will defend, indemnify and hold Qubit, its employees, directors and officers (the “Qubit Indemnified Parties”) harmless from and against any and all Losses, suffered or incurred by any Qubit Indemnified Party, arising from or related to: (i) any allegation that any Customer Property or Customer’s use of the Services beyond the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, (ii) arising from Customer’s breach of the Platform Guidelines, or (iii) any Excluded Claim.

c. Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 8, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party (except to the extent affecting Customer’s continued use of the Service) without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.

9. Limitation of Liability

a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EITHER’S PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS