In this article
Agreement
This Master Customer Agreement ("Master Agreement") is made and entered into as of the date that Customer signs or otherwise enters into the initial Order Form incorporating this Master Agreement ("Effective Date") and is between SB Technology, Inc. ("SandboxAQ") and the customer identified on the Order Form ("Customer"). SandboxAQ and Customer may each be referred to herein individually as a "Party" and, together as the "Parties". The Parties agree as follows:
1. Structure
1.1 Products and Order Forms
This Agreement sets forth the terms and conditions on which SandboxAQ provides to Customer the Hosted Services (defined below) (collectively, "Products") as identified in an order form entered into by the Parties substantially in the form attached hereto as Exhibit A (each, an "Order Form").
1.2 Addenda
Customer's receipt and use of the Products, Deliverables (as defined below), and Professional Services (as defined below) shall be referred to collectively herein as the "Services". The Services are also subject to any additional relevant SandboxAQ terms or policies (each, as may be made available by SandboxAQ or referenced herein, an "Addendum" and collectively the "Addenda").
1.3 Incorporation
All Addenda, Order Forms, and SOWs are incorporated into and governed by this Agreement. References to this "Agreement" shall include, as applicable, this Master Agreement, the Order Forms, the SOWs, and all Addenda.
1.4 Order Form Term
Unless earlier terminated in accordance with this Agreement, each Order Form is effective as of the effective date set forth in the applicable Order Form and will continue for the duration of the initial term specified in such Order Form ("Initial Order Form Term") and, if such Order Form provides for automatic renewal, then, unless either Party provides the other with written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Order Form Term, such Order Form will automatically renew for successive twelve (12) month terms (or such other renewal terms agreed in the Order Form) (each, a "Renewal Order Form Term"), (the Initial Order Form Term and each Renewal Order Form Term, if any, collectively, the "Order Form Term"). Renewal of any Order Form may be conditioned upon and subject to Customer's agreement to changes and/or updates to the Services, the Documentation, or this Agreement (including the terms and conditions of the Order Form).
1.5 Order of Precedence
Any conflict between an Order Form, Statement of Work, Addendum, or this Master Agreement will be resolved according to the following order of precedence: (a) the Order Form (as applicable to the specific Products) or the Statement of Work (as applicable to the Professional Services described therein), in each case only to the extent it expressly states an intent to supersede the Master Agreement; (b) the Addenda (with respect to the applicable Products, Deliverables, and/or Professional Services that are the subject matter thereof); and (c) this Master Agreement.
2. Product Rights and Restrictions
2.1 Users
Customer may use the mechanisms designated by SandboxAQ ("Log-in Credentials"), to provide access to the Services and Documentation only to its and its Affiliates' employees and contractors who are using the Products on Customer's behalf in connection with its internal business purposes ("Users"). Log-in Credentials must be kept confidential and may not be shared with anyone else. Customer is responsible for its Users' compliance with this Agreement and all actions taken through their Log-in Credentials. Customer will promptly notify SandboxAQ if it becomes aware of any compromise of any Log-in Credentials or unauthorized access to or use of the Services or Documentation.
2.2 Licenses and Access/Use Grants
If Customer orders a license to hosted software or a software-as-a-service product (the "Hosted Services"), then SandboxAQ hereby grants to Customer and its Users a limited, non-exclusive, revocable (as set forth herein), non-transferable, non-sublicensable, subscription license to access and use such Hosted Services, as applicable, and any accompanying documentation that SandboxAQ makes generally available to its customers ("Documentation") solely (a) as licensed during the Order Form Term, (b) in accordance with the applicable Documentation (defined below), and (c) subject to Customer's compliance with the terms and conditions of this Agreement.
2.3 Additional Features
Customer acknowledges that the features and functionality of a Product are subject to the limitations on quantity, and description of features and functionality of the applicable license purchased by Customer as set forth in the Order Form and/or Documentation, and that access to additional quantities, or features or functionality not included in a Product as licensed to Customer may require payment of additional fees and/or the purchase of additional licenses.
2.4 Use Restrictions
Except as otherwise explicitly permitted in this Agreement, Customer and its Users will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to access or use the Services, or the Documentation; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) use the Services in connection with the development of a competitive or similar product or service; (d) circumvent or disable any security or other technological features or measures of a Product or use the Product in a manner that poses a threat to the security of SandboxAQ-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of a Product or Service (except to the extent that applicable law prevents the prohibition of such activities); (f) circumvent any access restrictions, or conduct any security or vulnerability test of any Product; (g) transmit any viruses or other harmful materials to any Product; (h) use or access the Services in a manner, or take any action, that risks harm to others or to the security, availability, operation, or integrity of a Product or SandboxAQ's servers and systems; (i) remove or obscure any proprietary notices in a Product or Deliverable; or (j) publish benchmarks or performance information about any Product.
2.5 Third-Party Products
In the event that any third-party software or other products (e.g., cloud hosting instances or data analysis tools) that integrate or interoperate with or are identified in the Documentation as being required to use such Product ("Third-Party Products"), the relevant Third-Party Products and their use by Customer are subject to the applicable terms and conditions, and restrictions that apply to the use of such Third-Party Products ("Third-Party Terms"). Customer agrees to read, abide by, and comply with all such Third-Party Terms as applicable to Customer's use of Third-Party Products. Except as otherwise expressly agreed to in writing by SandboxAQ to the contrary, SandboxAQ does not provide any warranties, representations or support in respect of any Third-Party Products of any kind and has no liability for or in connection with Customer's use of Third-Party Products. SandboxAQ cannot guarantee the continued availability of any Third-Party Products and, may suspend or terminate access to any Third-Party Products without entitling Customer to any refund, credit, or other compensation.
2.6 Compliance with Laws
Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
2.7 Customer Data
Except as expressly provided in this Agreement and except for Usage Data, as between SandboxAQ and Customer, Customer retains all right, title, and interest, including all patents, copyrights, trademarks, trade secrets, and any other proprietary or intellectual property rights ("Intellectual Property Rights"), in and to (a) any data or information that Customer uploads or inputs into a Product or otherwise makes available to SandboxAQ in connection with Customer's use of a Product or receipt of Professional Services; and (b) output that is generated and made available to Customer by any Product through use of the data described in part (a) above (excluding Usage Data) ((a) and (b) collectively, "Customer Data"). Customer Data does not include any of SandboxAQ's underlying inventions, ideas, methods, data, models, algorithms or proprietary information or technology used by SandboxAQ to provide the Products and Services, or any Intellectual Property Rights therein. Customer hereby grants SandboxAQ and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, license to access, use, process, transmit, store, display, and disclose Customer Data during the Term, for the purpose of providing the Products and Services, and performing its obligations and exercising its rights under the Agreement.
2.8 Usage Data
Customer acknowledges that SandboxAQ and its Affiliates may monitor Customer's, its Affiliates' and their Users' use of the Products and Services and may, directly or indirectly through the use of third-party providers, collect, create, store, and process any and all information reflecting the access or use of the Products and Services by or on behalf of Customer or any User, including any end user profile-, visit-, session-, impression-, click through-, or click stream-data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing, including without limitation, technical information and metrics about Customer's, its Affiliates' and their Users' access to or use of the Products and Services, such as end user profile-, visit-, session-, impression-, click through-, or click stream-data, in perpetuity, in a form that does not (and cannot reasonably be used to) identify Customer or its Users as the source thereof ("Usage Data") for SandboxAQ's internal business purposes and use, including without limitation, to develop, maintain, and improve SandboxAQ's and its Affiliates' products and services.
2.9 Customer Data Representations and Warranties; Prohibited Data
Customer represents and warrants that (i) Customer has made and provided all legally required disclosures, and notices, and has obtained and will continue to obtain during the Term all rights, consents, and permissions necessary to provide the Customer Data to SandboxAQ and to grant the access and rights granted by Customer under this Agreement; and (ii) Customer Data shall not include any Prohibited Data. For purposes of this Agreement, "Prohibited Data" means any: (1) special categories of data or personal data relating to criminal convictions or offences as defined in the GDPR (as defined in the Data Protection Addendum); (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented); (3) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (4) other information subject to regulation or protection under specific laws such as the Children's Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (5) social security numbers, driver's license numbers, or other government ID numbers; or (6) any other sensitive and/or regulated data similar to the above.
2.10 Ownership
Except as expressly provided in this Agreement, as between the Parties, SandboxAQ and its licensors retain and own all right, title, and interest, including all Intellectual Property Rights, in and to the Products, Documentation, Deliverables, Professional Services, Services, and any updates or improvements to any Services (or other SandboxAQ products or services) made as a result of SandboxAQ's use, processing, or generation of Customer Data.
2.11 Updates; Upgrades; and Optional Features
SandboxAQ may, in its sole discretion, make updates, modifications, or bug fixes to Products as SandboxAQ makes them generally available to its customers. SandboxAQ may also offer optional features within the Products, which may have their own terms and conditions and be offered on an optional basis to Customer, including tools that may use artificial intelligence to enhance Customer's use of the Products. Customer's purchase of access to Products is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by SandboxAQ regarding future functionality or features of the Products. From time to time, SandboxAQ, in its sole discretion, may make available optional additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Products ("Upgrades") for an additional fee and which may be subject to additional or different terms. Nothing in this Agreement obligates SandboxAQ to make Upgrades available to Customer as part of the Products or otherwise unless specifically included in an Order Form.
2.12 Feedback
If Customer provides any feedback to SandboxAQ concerning the functionality or performance of the Services or Documentation (including identifying potential errors and improvements) ("Feedback"), Customer hereby grants SandboxAQ a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable, and sublicensable (through multiple tiers) license to use Feedback without restriction, and without compensation or attribution to Customer of any kind.
3. Security; Privacy
3.1 Security
SandboxAQ will maintain, if and for as long as it processes Customer Data, the information security measures set forth in the Data Security Requirements accessible at [URL] (as such measures may be updated by SandboxAQ from time to time, provided that the updated measures are not materially less protective of Customer Data than those accessible at [URL]. SANDBOXAQ'S SOLE RESPONSIBILITY FOR HANDLING CUSTOMER DATA AND CUSTOMER'S SOLE REMEDY FOR SANDBOXAQ'S FAILURE TO PROPERLY HANDLE CUSTOMER DATA SHALL BE AS SET FORTH IN THE DATA SECURITY REQUIREMENTS AND DPA (TO THE EXTENT THERE IS ANY PERSONAL DATA IN THE CUSTOMER DATA).
3.2 Privacy
The Parties do not anticipate SandboxAQ processing any personal data of Customer. If SandboxAQ does process any personal data of Customer, the Parties agree to comply with their respective obligations in the Data Protection Addendum ("DPA") found at [URL] in connection with the processing of any such personal data within the Customer Data.
4. Fees and Payment
4.1 Fees and Payment Terms
Customer will pay SandboxAQ the fees and any other amounts owing under this Agreement as specified in the applicable Order Form or Statement of Work, without deduction or set-off. Customer will pay all amounts due within thirty (30) days of the date of the invoice. Any amount not paid when due will be subject to a late charge of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less.
4.2 Taxes
Other than net income taxes imposed on SandboxAQ, Customer will bear all taxes, duties, and other governmental charges (collectively, "Taxes") resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by SandboxAQ after all such Taxes are paid are equal to the amounts to which SandboxAQ would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
5. Term and Termination
5.1 Term
This Agreement will commence on the Effective Date and remain in effect until the expiration (without renewal) or termination of all outstanding Order Forms (the "Term").
5.2 Termination; Suspension
Either Party may terminate this Agreement in its entirety for any or no reason with sixty (60) days written notice to the other Party. Additionally, either Party may terminate this Agreement, in whole or in part, immediately upon written notice to the other Party if: (a) the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice of the breach from the other Party; or (b) commences bankruptcy or dissolution proceedings, is unable to pay its debts as they come due, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. Notwithstanding the foregoing, SandboxAQ may immediately terminate this Agreement upon notice to Customer if SandboxAQ reasonably believes that Customer has made or distributed any unauthorized copies of any Product, has violated Section 2.4, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge SandboxAQ's Intellectual Property Rights, including rights in and to any Product. Without limiting any other provision of this Section 5.2, if Customer fails to timely pay any fees (and such failure is repeated or is not cured within seven (7) days), SandboxAQ may, without limitation to any of its other rights or remedies, suspend access to the Products or performance of the Professional Services under all Order Forms until it receives all amounts due.
5.3 Post-Termination and Expiration Obligations
Upon expiration or if this Agreement is terminated for any reason, (a) Customer will pay to SandboxAQ any fees or other amounts that have accrued through the effective date of the expiration or termination, and (b) any and all liabilities (including payment obligations under Section 4) accrued through the effective date of the termination or expiration will survive, and. If Customer terminates any Order Form prior to the expiration of the Order Form Term for any reason other than termination for cause as permitted in Section 5.2, in addition to any other amounts due and owing from Customer as set forth herein, Customer shall pay to SandboxAQ, as a genuine pre-estimate of the damages SandboxAQ would suffer for such termination and not as a penalty, the amount of all fees for Software and Hosted Services that would have been due for the remainder of the Order Form Term, within thirty (30) days of Customer's receipt of an invoice for such amounts. Customer Data and other Confidential Information, as defined in Section 6, may be retained in Receiving Party's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement's confidentiality and use restrictions.
5.4 Survival
Sections 1.5, 2.4, 2.6, 2.7, 2.8, 2.9, 2.11, 4, 5.3, 5.4, 6, 7, 8.4, 9, 10, 11, and 12 will survive termination or expiration of this Agreement.
6. Confidentiality
6.1 Definition
As used herein, "Confidential Information" means all confidential information disclosed by or otherwise obtained from a Party ("Disclosing Party") to or by the other Party ("Receiving Party"), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. "Confidential Information" of a Disclosing Party includes such Disclosing Party's business and marketing plans, technology and technical information, pricing, product plans and designs, and business processes. Without limiting the foregoing, SandboxAQ's "Confidential Information" includes each Product, all Documentation, all SandboxAQ technical information, and all information concerning Product-related database structure information and schema. However, "Confidential Information" does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of or reference to any of the Disclosing Party's Confidential Information.
6.2 Protection of Confidential Information
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, agents, and representatives who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, SandboxAQ is permitted to disclose Confidential Information of Customer on a need-to-know basis to its and its Affiliates' employees, contractors, agents, representatives, and advisors (collectively "Representatives"), in each instance, provided such Representatives are informed of the confidential nature of the information and are bound by confidentiality obligations no less restrictive than those contained herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, if the Disclosing Party wishes to contest the disclosure. "Affiliate" means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
7. Audit
7.1 Compliance Records
Customer will maintain accurate records to enable SandboxAQ to verify Customer's compliance with this Agreement. Customer will provide a copy of such records to SandboxAQ upon request. Customer acknowledges that SandboxAQ will have the right to implement in the Products testing, compliance, and monitoring tools and technologies to collect Usage Data concerning Customer's usage of such Products. Nothing in this Agreement will be construed to limit SandboxAQ's right to use such Usage Data to verify Customer's compliance with this Agreement.
8. Warranties and Disclaimer
8.1 Mutual Warranties
Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery, or performance of this Agreement.
8.2 SandboxAQ Warranties
SandboxAQ offers the following limited warranties (collectively, the "Performance Warranty") during the applicable warranty periods set forth below (as applicable, the "Warranty Period"):
- The functionality of the Hosted Services will perform as described in the applicable Documentation in all material respects during the applicable Order Form Term.
- SandboxAQ will perform any Professional Services in a professional and workmanlike manner in substantial accordance with the applicable Statement of Work, and the Deliverables (as and when delivered by SandboxAQ) will conform in all material respects to the specifications set forth in the applicable Statement of Work.
8.3 Warranty Remedy
If SandboxAQ breaches the Performance Warranty during the applicable Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by SandboxAQ within the Warranty Period (or in the case of Section 8.2(c) above, within seven (7) days of performance or delivery), then SandboxAQ will use reasonable efforts to correct the non-conformity within a reasonable time period. If SandboxAQ cannot do so, either party may terminate the affected Order Form as it relates to the non-conforming Product or Professional Services. SandboxAQ will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Order Form (for breach of the Performance Warranty) or for the non-conforming Professional Services. This Section sets forth Customer's exclusive remedy and SandboxAQ's entire liability for breach of the warranties set forth in Section 8.2 of this Agreement. These warranties do not apply to and SandboxAQ shall have no liability for: (a) issues caused by Customer's misuse of or unauthorized modifications to the applicable Product; (b) issues in or caused by Third-Party Products or other third-party systems; (c) use of the applicable Product other than according to the Documentation; (d) Tier 2 Software, or (e) Trials and Betas or other free or evaluation use.
8.4 Disclaimer
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, THE PRODUCTS, DOCUMENTATION, SUPPORT AND MAINTENANCE AND ANY OTHER SERVICES PROVIDED BY SANDBOXAQ ARE PROVIDED "AS IS" AND "AS AVAILABLE". SANDBOXAQ MAKES NO ADDITIONAL REPRESENTATION OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SANDBOXAQ EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SANDBOXAQ DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, DELIVERABLES OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE PROFESSIONAL SERVICES OR DELIVERABLES WILL BE SECURE OR UNINTERRUPTED. SANDBOXAQ DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY A PRODUCT OR DOCUMENTATION, OR IN CONNECTION WITH THE PROFESSIONAL SERVICES, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. SANDBOXAQ EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER'S USE OF THE PRODUCTS OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES. SANDBOXAQ DOES NOT PROVIDE ANY LEGAL ADVICE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY PROFESSIONAL DECISIONS CUSTOMER MAKES. IN ADDITION TO THE FOREGOING, THE RESULTS OF THE PRODUCTS, SERVICES, PROFESSIONAL SERVICES, DELIVERABLES, AND THE OPINIONS, ADVICE, RECOMMENDATIONS, AND/OR CERTIFICATION OF OR BY SANDBOXAQ THEREOF DOES NOT CONSTITUTE A REPRESENTATION, WARRANTY, OR GUARANTY THAT CUSTOMER'S SYSTEMS ARE SECURE FROM EVERY KIND OF ATTACK, EVEN IF FULLY IMPLEMENTED.
9. Trials and Betas
If Customer receives access to Products or features thereof on a free or trial basis or as an alpha, beta, or early access offering ("Trials and Betas"), Customer may only use the Trials and Betas only for Customer's internal evaluation during the period designated by SandboxAQ (or if not designated, thirty (30) days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that SandboxAQ may never release, and their features and performance information are SandboxAQ's Confidential Information. Notwithstanding anything else in this Agreement, SandboxAQ provides no warranty, indemnity, or support for Trials and Betas, and its aggregate liability for Trials and Betas will not exceed US $50.
10. Indemnification
10.1 By SandboxAQ
SandboxAQ will: (a) at its expense, either defend Customer from or settle any claim, proceeding, or suit brought by a third party ("Claim") against Customer alleging that Customer's use of the Product as permitted under this Agreement infringes or misappropriates any patent, copyright, or trademark, subject to Section 10.3, and (b) reimburse Customer for and pay the applicable Losses (defined below) actually incurred by Customer in connection with such Claim. SandboxAQ will have no obligation under this Section 10.1 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the "Excluded Claims"): (1) use of the Product in combination with other products or services not provided by SandboxAQ if such infringement or misappropriation would not have arisen but for such combination; (2) the Product having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (3) use of the Product by Customer for purposes not intended or outside the scope of the license granted to Customer under this Agreement; (4) Customer's failure to use the Product in accordance with instructions provided by SandboxAQ, if the infringement or misappropriation would not have occurred but for such failure; (5) any modification of the Product not made or authorized in writing by SandboxAQ where such infringement or misappropriation would not have occurred but for such modification; or (6) any Third-Party Product if such infringement or misappropriation would not have arisen but for such Third-Party Product.
10.2 By Customer
Customer shall defend and indemnify SandboxAQ and its Affiliates and their officers, directors and employees against any Claim(s) (including those brought by a government entity), and all related Losses, resulting from: (1) an actual or alleged infringement or violation by the Customer Data of such third-party's patent, copyright, trademark, trade secret or other proprietary right; (2) SandboxAQ's use of the Customer Data violating applicable law including Data Protection Legislation (as defined in the Data Protection Addendum), provided that such use is permitted under this Agreement; (3) Customer's breach of Section 2.4 of this Agreement; or (4) any Excluded Claims.
10.3 Mitigation; Limited Remedy
If SandboxAQ becomes aware of, or anticipates, a Claim subject to Section 10.1, SandboxAQ may, at its option: (a) modify the Product so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party Intellectual Property Rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice and refund to Customer any unused prepaid fees. Sections 10.1 and 10.3 state SandboxAQ's sole and exclusive liability, and Customer's sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other breach of any third-party Intellectual Property Right by the Services.
10.4 Procedures
A party's obligations as the indemnifying party ("Indemnitor") with respect to a Claim for which the indemnified Party ("Indemnitee") is indemnified under this Section 10 (an "Indemnified Claim") are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor's prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim provided that Indemnitor cannot settle any Claim that requires Indemnitee to admit liability, take or refrain from taking any action, or pay money, without Indemnitee's prior written consent. "Losses" means: (i) all damages, costs, and attorneys' fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys' fees and costs incurred without Indemnitor's consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
11. Limitations of Liability
11.1 Disclaimer of Indirect Damages
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SANDBOXAQ WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, ENHANCED, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE, LOSS OF DATA, OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER SANDBOXAQ IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, SUCH DAMAGES WERE FORESEEABLE, OR THE THEORY OF LIABILITY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, OR WHETHER ANOTHER REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
11.2 Cap on Liability
EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 10, UNDER NO CIRCUMSTANCES WILL SANDBOXAQ'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SANDBOXAQ UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
11.3 Independent Allocations of Risk
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SANDBOXAQ TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
12. General
12.1 Relationship
SandboxAQ will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
12.2 Assignability
Neither Party may assign its right, duties, or obligations under this Agreement without the other Party's prior written consent, which consent will not be unreasonably withheld or delayed, except that SandboxAQ may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. "Change of Control" means a merger, acquisition, divestiture, sale of all or substantially all of the assets or voting securities of SandboxAQ, or similar transaction.
12.3 Export
Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer's activities under this Agreement. Customer acknowledges that it is Customer's responsibility to obtain any required licenses to export and re-export Products. The Products, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Products are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
12.4 U.S. Government Restricted Rights
The Software is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
12.5 Subcontractors
SandboxAQ may utilize subcontractors or other third parties to perform its obligations under this Agreement so long as SandboxAQ remains responsible for all of its obligations under this Agreement.
12.6 Notices
Any notice required or permitted under the terms of this Agreement or required by law in connection with this Agreement (each, a "Notice") must be provided in writing to the other party as follows: (1) for notices to Customer, at the applicable address below the Customer's signature line through one of the following methods: (a) in person; (b) by certified or registered mail, or air mail, as appropriate, return receipt requested; (c) by nationally recognized overnight courier service; or (d) via email (and, if receipt is not confirmed within two business days, supplemented by one of the methods specified in (a), (b), or (c) of this section), and (2) for SandboxAQ, via email at legal-notices@sandboxquantum.com. Notices to Customer will be considered to have been given (i) at the time of actual delivery in person, (ii) three business days after deposit in the mail as set forth above, (iii) one business day after delivery to an overnight courier service, or (iv) for email, the earlier of the date receipt is acknowledged by recipient and the date the supplemental Notice would otherwise be deemed given in accordance with this section, and notices to SandboxAQ will be considered to have been given two (2) business days after delivery without any bounce back email redirecting the Company to another method of delivery. Either party may change its address for Notice by providing Notice of the change in accordance with this section. If an individual named as the recipient for Notices to a party ceases to work in the role specified or ceases to work for a party and that party fails to notify the other party of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at that party is deemed compliant with the Notice obligations.
12.7 Force Majeure
Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses commercially reasonable efforts to avoid or remove the causes of non-performance.
12.8 Governing Law
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New York City, New York in connection with any action arising out of or in connection with this Agreement.
12.9 Waiver
The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party's right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.10 Severability
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of a Product under this Agreement is found to be illegal, unenforceable, or invalid, Customer's right to use Products will immediately terminate.
12.11 Interpretation
For purposes of this Agreement, (a) the words "include," "includes" and "including" will be deemed to be followed by the words "without limitation;"; (b) the words "such as", "for example" "e.g." and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word "or" is used in the inclusive sense of "and/or" and the terms "or," "any," and "either" are not exclusive; (d) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to "$" and "dollars" are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
12.12 Entire Agreement
This Agreement, including any exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of SandboxAQ that are not described in an Order Form and with respect to which Customer has executed a separate agreement with SandboxAQ that remains in effect. No employee, agent, or other representative of SandboxAQ has any authority to bind SandboxAQ with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. The terms of this Agreement may be changed only by a written amendment executed by both Parties. SandboxAQ will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless SandboxAQ specifically provides a written acceptance of such provision signed by an authorized agent of SandboxAQ.