Agreement
1. Structure
1.1 Products
This Agreement sets forth the terms and conditions on which SandboxAQ provides to Customer the Hosted Services (defined below) (collectively, “Products”).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 and SOWs are incorporated into and governed by this Agreement. References to this “Agreement” shall include, as applicable, this Master Agreement, the SOWs, and all Addenda.1.4 Order of Precedence
Any conflict between a Statement of Work, Addendum, or this Master Agreement will be resolved according to the following order of precedence: (a) the Statement of Work (as applicable to the specific Products or 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
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 the Hosted Services, as applicable, and any accompanying documentation that SandboxAQ makes generally available to its customers (“Documentation”) solely (a) as licensed during the Term, (b) in accordance with the applicable Documentation (defined below), including the limitations on usage set forth therein 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 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 (a) the purpose of providing the Products and Services and performing its obligations and exercising its rights under the Agreement and (b) strictly with respect to output that is generated by the Products, for SandboxAQ’s own internal use for any purpose.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 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.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 set forth in this Agreement and the Documentation (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 in this Agreement and the Documentation. 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”) 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 SandboxAQ Pricing or Statement of Work, without deduction or set-off. The credit card used by Customer to obtain access to the Hosted Services will be charged upon the earlier of (a) incurring one thousand dollars ($1,000) in fees based on usage of the Hosted Service, which will be charged in one thousand dollar increments as incurred, or (b) the end of the calendar month. For balances under five dollars ($5.00), SandboxAQ may choose not to charge your credit card for a period of up to ninety (90) days.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
Unless earlier terminated by SandboxAQ upon immediate written notice at any time, this Agreement is effective as of the date Customer begins using or accessing the Products and will remain in effect unless terminated (the “Term”). Upon termination of this Agreement, the license granted hereunder will terminate and Customer shall immediately cease using any Products and Documentation5.2 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. 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.5.3 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 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.