Terms of Use

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Accelerated Discovery Platform Early Access Agreement

International Business Machines Corporation, 1101 Kitchawan Road, Yorktown Heights, New York 10598

Complete Agreement: This Accelerated Discovery Platform Early Access Agreement (ADEA) and applicable Transaction Documents and Attachments are the complete agreement regarding each transaction under this ADEA (together, the “Agreement”) under which Customer may use the services accessible in the Accelerated Discovery Platform (the “Platform”). Customer may be referred to as “Client” in certain related agreements or attachments. The Platform contains products and services owned or controlled by IBM (“IBM Product(s)”) and may contain products and services owned or controlled by other parties (“Non-IBM Product(s)” or “Third Party Product(s)”). Transaction Documents: Transaction Documents (TDs) provide the specifics of transactions, such as charges and a description of and information about the IBM Products and Third Party Products. Examples of TDs include statements of work, service descriptions, ordering documents and invoices, and the restrictions, which may include fees, described in the Platform specific to an Offering (the “Online Description”). There may be more than one TD applicable to a transaction. Attachments: Documents identified as Attachments provide supplemental terms that apply across certain types of transactions such as a solution attachment. In the event of conflict, an Attachment prevails over the ADEA and a TD prevails over both the ADEA and any Attachment. Any conflicting terms in an Attachment or TD that override the ADEA will be identified in the TD or Attachment accepted by the Customer and only apply to the specific transaction. For clarity, the Online Description may provide more specific details of an Offering, but does not override or supersede the terms and conditions contained in this ADEA, and does not include marketing materials.

Transaction Documents: Transaction Documents (TDs) provide the specifics of transactions, such as charges and a description of and information about the IBM Products and Third Party Products. Examples of TDs include statements of work, service descriptions, ordering documents and invoices, and the restrictions, which may include fees, described in the Platform specific to an Offering (the “Online Description”). There may be more than one TD applicable to a transaction.

Documents identified as Attachments provide supplemental terms that apply across certain types of transactions such as a solution attachment. In the event of conflict, an Attachment prevails over the ADEA and a TD prevails over both the ADEA and any Attachment. Any conflicting terms in an Attachment or TD that override the ADEA will be identified in the TD or Attachment accepted by the Customer and only apply to the specific transaction. For clarity, the Online Description may provide more specific details of an Offering, but does not override or supersede the terms and conditions contained in this ADEA, and does not include marketing materials.

1. Accelerated Discovery Offerings
a. Content Customer Provides	Content consists of all data, software, and information that Customer or its authorized users provides, authorizes access to, or inputs to an Offering or information or data Customer may provide, make available or grant access to, in connection with IBM providing other related Services. Customer grants the rights and permissions to IBM, its affiliates, and contractors of either, to use, provide, store, and otherwise process Content solely for the purpose of providing the Offering or other Services. Use of the Offering or other Services will not affect Customer's ownership or license rights in Content.
b. Third Party Products	Customer may choose to use Third Party Product(s) when accessible via the Platform. The Third Party Product will identify any applicable terms and fees that govern Customer's use of Third Party Products. IBM is not a party to any third party agreement governing Customer’s use of Third Party Products, and Customer is responsible for Customer’s access and use of Third Party Products. Access to ongoing Third Party Products may be discontinued at any time by the providing party or if IBM no longer makes available such Third Party Products.
c. Platform and Application Access	Customer accepts the applicable TD or Attachment for an Offering by ordering, enrolling, using, or making a payment, if applicable. IBM accepts Customer’s order by confirming the order or enabling access. Under this ADEA an Offering may be designated as: an Alpha or Early Access Offering with no warranties, Service Level Objectives (“SLOs”) or Service Level Agreements (“SLAs”); a Beta Offering with limited warranties, SLOs and SLAs;
d. Customer Responsibilities	Customer's authorized users may access Offerings only to the extent of authorizations Customer acquires. Customer is responsible for the use of an Offering by any user who accesses the Offering with Customer's account credentials. If a third party asserts a claim against IBM related to a Customer product or service or any advertising, marketing or product claim made by or on behalf of Customer, or resulting from an actual or alleged breach of Customer’s obligations under this Agreement, Customer will defend IBM against that claim at Customer’s expense and pay all costs, damages, and attorney's fees that a court finally awards against IBM with respect to the claim or that are included in a settlement approved in advance by Customer, provided that IBM: a) promptly notifies Customer in writing of the claim; and b) allows Customer to control, and cooperate with Customer in, the defense and any related settlement negotiations. Customer acknowledges that the use of Offerings or other Services meets Customer’s requirements and processing instructions required to comply with applicable laws.
e. Acceptable Use Terms	An Offering may not be used to undertake any activity or host Content that: is unlawful, fraudulent, harmful, malicious, obscene, or offensive; threatens or violates the rights of others; disrupts or gains (or intends to disrupt or gain) unauthorized access to data, services, networks, or computing environments within or external to IBM; sends unsolicited, abusive, or deceptive messages of any type; or distributes any form of malware. Customer may not use Offerings: i) for crypto-mining, unless otherwise agreed by IBM in writing; or ii) if failure or interruption of Offerings could lead to death, serious bodily injury, or property or environmental damage. Customer may not reverse engineer, disassemble, reverse compile, or reduce any software to human readable format from any portion of an Offering. Customer applications and services may make API calls to applicable Offerings in the Platform as specified in a TD. Such applications may not otherwise: i) directly resell Offerings to end users; ii) embed Offerings within the applications or service; or iii) sell access to IBM Platform account ids, without entering into a separate agreement with IBM.
f. Early Access Offerings	Offerings are considered "early access" when IBM makes such services or features available with limited or pre-release functionality, or for a limited time to try available functionality. Examples of early access Offerings include alpha, beta, trial, or preview-designated Offerings. IBM may change or discontinue an early access Offering at any time and without notice. IBM is not obligated to release an early access Offerings or make an equivalent service generally available.

2. Content and Data Protection
a. Content Customer Provides	Content consists of all data, software, and information that Customer or its authorized users provides, authorizes access to, or inputs to an Offering or information or data Customer may provide, make available or grant access to, in connection with IBM providing other related Services. Customer grants the rights and permissions to IBM, its affiliates, and contractors of either, to use, provide, store, and otherwise process Content solely for the purpose of providing the Offering or other Services. Use of the Offering or other Services will not affect Customer's ownership or license rights in Content.
b. Use of Content	IBM, its affiliates, and contractors of either, will access and use the Content solely for the purpose of providing and managing the applicable Offering or other Services. IBM will treat Content as confidential by only disclosing to IBM employees and contractors to the extent necessary to provide the Offering or perform other Services.
c. Customer Responsibilities	Customer is responsible for obtaining all necessary rights and permissions to permit processing of Content in the Offering or to provide other Services. Customer will make disclosures and obtain consent required by law before Customer provides, authorizes access, or inputs individuals' information, including personal or other regulated data, for processing in the Offering or use by IBM in providing other Services. Customer is responsible for maintaining and protecting all access keys generated for each Offering. If any Content could be subject to governmental regulation or may require security measures beyond those specified by IBM for the Offering or to provide other Services, Customer will not provide, allow access to, or input the Content for processing in the Offering or provide or allow access of Content to IBM to provide Services unless specifically permitted in the applicable TD, or unless IBM has first agreed in writing to implement additional security and other measures. Customer is responsible for adequate back-up of Content on Customer managed systems prior to providing or allowing access to IBM to provide Services.
d. Customer Responsibilities	IBM Data Security and Privacy Principles (DSP), at http://www.ibm.com/cloud/data-security, apply for generally available standard Offerings and other Services. Customer agrees Content will not contain personal data or data that may be subject to governmental regulation or that requires specific security measures, including data subject to European General Data Protection Regulations (GDPR), or other data protection law requirements. Specific security features and functions of an Offering or other Services, if any, will be described in the applicable TD. Customer is responsible for selecting, ordering, enabling, and using available data protection features appropriate to support Customer’s use of the Offering. Customer is responsible for assessing the suitability of the Offering for the Content and Customer's intended use or the use of Content with other Services IBM will provide. Customer acknowledges that the use of Offerings or other Services meets Client’s requirements and processing instructions required to comply with applicable laws.
e. Removal of Content	For Offerings with self-managed features, Customer can remove Content at any time. Otherwise, IBM will return or remove Content upon Customer's request. IBM does not archive Content; however, some Content may remain in the Offering backup files until expiration of such files as governed by IBM's backup retention practices.

3. Changes and Withdrawal of Offerings

a. IBM Right to Change Offerings

From time to time and at IBM’s discretion, IBM may change: (1) the Offerings, including the corresponding published descriptions; and (2) the published data security and privacy documentation for the Offerings. Changes to the published descriptions, or published other documents as specified above, will be effective when published or on the specified effective date. Continued use of the early access Offerings is Customer’s acceptance of any such change. If Customer does not accept a change, Customer is responsible to discontinue use upon such notice.

4. Warranties

a. Disclaimer of Warranties

For the purposes of the Offerings provided under this ADEA, IBM disclaims all warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. IBM does not warrant: (i) uninterrupted or error-free operation of the Offerings, (ii) that it will correct all defects, or (iii) that IBM can prevent all third party disruptions or unauthorized third party access. IBM warranties will not apply if there has been misuse, modification, damage not caused by IBM, or failure to comply with written instructions provided by IBM. IBM makes early access Offerings or Third Party Products under the Agreement as-is, without warranties of any kind. Third parties may provide their own warranties to Customer for Third Party Products.

5. Charges, Taxes, and Payment
a. Charges	Generally, there are no charges for use of the Platform during the early access period, unless specified by IBM or a third party service provider. If any authority imposes a custom, duty, tax (including withholding tax), levy or fee for the import or export, transfer, access or use of the Platform, then Customer is responsible to pay any such amount imposed.

6. Liability
a. Liability for Damages	IBM's entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Customer up to the greater of i) USD $10,000, or ii) the amounts paid (if recurring charges, up to 12 months' charges apply) for the service that is the subject of the claim, regardless of the basis of the claim. IBM will not be liable for special, incidental, exemplary, indirect or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings. These limitations apply collectively to IBM, its affiliates, contractors, and suppliers.
b. What Damages are Not Limited	Damages amounts that cannot be limited under applicable law are not subject to the above cap.
c. Claims Not Covered	IBM has no responsibility for claims based on: (1) Third Party Products; (2) items not provided by IBM; or (3) any violation of law or third party rights caused by Content, or any Customer materials, designs, or specifications.

7. Term and Termination
a. Term of an Offering	The term begins on the date IBM notifies Customer that Customer can access the Offering. The TD will specify whether Offerings renew automatically, proceed on a continuous use basis, or terminate at the end of the term. For automatic renewal, if applicable unless Customer provides notice of non-renewal to IBM through Customer’s account at least 5 days prior to the term expiration date, the Offering will automatically renew for the specified term.
b. Suspension of an Offering	IBM may suspend or limit, to the extent necessary, Customer's use of an Offering if IBM reasonably determines there is a: material breach of Customer's obligations; security incident; violation of law; or breach of the Acceptable Use Terms. IBM will provide notice prior to a suspension as commercially reasonable. If the cause of a suspension can reasonably be remedied, IBM will provide notice of the actions Customer must take to reinstate the Offering. If Customer fails to take such actions within a reasonable time, IBM may terminate Customer’s access to the Offering. IBM may at any time suspend, revoke, limit or refuse participation in or use of early access Offerings.
c. Termination of an Offering	Customer may cancel use of an early access Offering immediately at any time by notifying IBM.
d. Termination of this Agreement	Either party may terminate: (1) immediately if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving written notice of the breach; or (2) immediately for cause if the other is in material breach of the Agreement, provided the non-complying party is given notice and reasonable time to comply. Termination of the ADEA and Offering agreements does not terminate transactions in effect that are not affected by the cause of the material breach and provisions of the Agreement as they relate to such transactions remain in effect until fulfilled or otherwise terminated in accordance with their terms. Any terms, that by their nature extend beyond the Agreement termination, remain in effect until fulfilled and apply to successors and assignees Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Customer’s failure to pay, or Customer providing inaccurate or fraudulent Customer account or payment information to acquire IBM Products or Third Party Products, is a material breach.

8. Governing Laws and Geographic Scope
a. Applicable Laws	Both parties agree to the application of the laws of the State of New York, United States, without regard to conflict of law principles. The rights and obligations of each party are valid only in the country of Customer’s business address.
b. Compliance with Laws	Each party is also responsible for complying with: laws and regulations applicable to its business and Content; and import, export and economic sanction laws and regulations, including the defense trade control regime of the United States of America and any applicable jurisdictions that prohibit or restrict the import, export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. IBM will not serve as Customer's exporter or importer, except as required by data protection laws, for: i) any Content; or ii) use of any portion of an Offering from a country outside Customer's business address.
c. Enforcement and Other Rights	If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory rights that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement.

9. General
a. IBM’s Role	IBM is an independent contractor, not Customer's agent, joint venturer, partner, or fiduciary. IBM does not undertake to perform any of Customer's regulatory obligations or assume any responsibility for Customer's business or operations, and Customer is responsible for its use of IBM Products and Third Party Products. IBM is acting as an information technology provider only. IBM's direction, suggested usage, or guidance or use of an IBM Product does not constitute medical, clinical, legal, accounting, or other licensed professional advice. Customer should obtain their own expert advice. Each party is responsible for determining the assignment of its and its affiliates personnel, and their respective contractors, and for their direction, control, and compensation.
b. Agreement Changes	IBM may change this ADEA by providing Customer at least 30 days' notice, except that IBM may change the terms applicable to any early access Offering made available to Customer at no charge immediately upon providing notice to Customer at any time at IBM’s discretion. ADEA changes are not retroactive. They will only apply as of the effective date to: new orders; continuous IBM Products and Third Party Products that do not expire; and renewals. For transactions with a defined renewable contract period stated in a TD, Customer may request that IBM defer the change effective date until the end of the current contract period. Customer accepts changes by placing new orders, continuing use after the change effective date, or allowing transactions to renew after receipt of the change notice. Except as provided in this section, or otherwise specified a TD, all other changes to the Agreement must be in writing accepted by both parties.
c. Business Conduct	IBM maintains a robust set of business conduct and related guidelines covering conflicts of interest, market abuse, anti-bribery and corruption, and fraud. IBM and its personnel comply with such policies and require contractors to have similar policies.
d. Business Contact and Account Usage Information	IBM, its affiliates, and contractors of either require use of business contact information and certain account usage information. This information is not Content. Business contact information is used to communicate and manage business dealings with the Customer. Examples of business contact information include name, business telephone, address, email, user ID, and tax registration information. Account usage information is required to enable, provide, manage, support, administer, and improve IBM Products. Examples of account usage information include digital information gathered using tracking technologies, such as cookies and web beacons during use of an Offering. The IBM Privacy Statement at https://www.ibm.com/privacy/ provides additional details with respect to IBM's collection, use, and handling of business contact and account usage information. When Customer provides information to IBM and notice to, or consent by, the individuals is required for such processing, Customer will notify individuals and obtain consent.
e. Assignment	Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. IBM may assign rights to receive payments. IBM will remain responsible to perform its obligations. Assignments by IBM in conjunction with the sale of the portion of IBM's business that includes an IBM Product or Third Party Products is not restricted. IBM may share this Agreement and related documents in conjunction with any assignment.
f. Enterprise Companies	This Agreement applies to IBM and Customer accepting this Agreement and their respective Enterprise companies that provide or acquire IBM Products or Third Party Products under this Agreement. The parties shall coordinate the activities of their own Enterprise companies under the Agreement. Enterprise companies include: (1) companies within the same country that Customer or IBM control (by owning greater than 50% of the voting shares); and (2) any other entity that controls, is controlled by, or is under common control with Customer or IBM and has signed a participation agreement.
g. Notices and Administration	Notices under the Agreement from IBM to Customer will be provided by posting a notice on the Platform, or by a message sent to the email address associated with the Customer account. Notices from Customer to IBM must be sent to the email address specified in the Platform “Contact Us” page. The parties consent to the use of electronic means for communications as a signed writing. The Agreement supersedes any course of dealing, discussions, or representations between the parties. Where approval, acceptance, consent, access, cooperation, or similar action by either party is required, such action will not be unreasonably delayed or withheld.
h. Cause of Action	No right or cause of action for any third party is created by the Agreement or any transaction under it. Neither party will bring a legal action arising out of or related to the Agreement more than two years after the cause of action arose. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control.
i. Global Resources	IBM may use personnel and resources in locations worldwide, including contractors, to support the delivery of IBM Products and Third Party Products. Customer’s use of the IBM Products and Third Party Products may result in the transfer of Content, including personal data, across country borders. All information, instructions, and TDs will be provided by IBM in English, and the English language version of such documents prevails over any translated version.
j. Use of Name/Logo	This Agreement does not confer any rights to use any name, trade name, trademark, or other designation of either party in advertising, publicity or other marketing activities without the prior written approval of the other party.
k. Feedback	“Feedback” means any comments, suggestions, or recommendations provided by Customer to IBM related to an Offering. Customer is under no obligation to provide Feedback. Any Feedback provided by Customer is not confidential or proprietary and may be used or disclosed by IBM for any purpose, including improving or enhancing IBM products and services.
l. No Third Party Beneficiariesk	This Agreement is not intended to, and shall not be construed to, give any third party any interest or rights including any third-party beneficiary rights.
m. General Disclaimers	IBM’s statements regarding its plans, directions, and intent are subject to change or withdrawal without notice at IBM’s sole discretion. Information regarding potential future products is intended to outline IBM’s general product direction and should not be relied on in making a purchasing decision. The information mentioned regarding potential future products is not a commitment, promise, or legal obligation to deliver any material, code or functionality. The development, release, and timing of any future features or functionality for IBM products remain at IBM’s sole discretion. This Agreement is not a commitment by IBM to make available or deliver any technologies which are not publicly announced or generally available from IBM. IBM Business Partners who use or make available IBM Offerings or Third Party Products are independent from IBM and unilaterally determine their prices and terms. IBM is not responsible for their actions, omissions, statements, or offerings.