9.1 Client Representatives’ Personal Information.

1. IBM, its affiliates, and contractors of either, wherever they do business, may collect, store and otherwise process the following personal identifiable information (“PI”) of Client’s Client Representatives: (a) business contact information (“BCI”), for example name, business telephone, address, email addresses and user IDs, as may be required by IBM under this Agreement, and (b) email addresses, IP addresses, and as part of the normal operation and support of IBM Quantum, Client Representatives’ personal information from accessing IBM Quantum Systems related to the use of IBM Quantum Systems, through tracking and other technologies (such as cookies) (“Account Data”), as detailed at the IBM Quantum Privacy Page (“Privacy Page” located at https://quantum-computing.ibm.com/terms/privacy) and for the purposes and duration specified in the Privacy Page (please see specifically the section “IBM Quantum Experience access under a Governing Contract Between IBM and IBM Quantum Client”). The IBM Privacy Statement at https://www.ibm.com/privacy/us/en/ and IBM Online Privacy Statement at https://www.ibm.com/privacy/details/us/en/ (together, the “IBM Privacy Policies”) provide additional details. Where notice to or consent by individuals is required, the Client will notify and obtain such consent from Client Representatives.

9.2 Data

“Data” means any data that Client may upload to IBM Quantum Systems or grant access to IBM in connection with this Agreement.

1. Client must have obtained all necessary consents and licenses such that use or access of Data by IBM in accordance with this Agreement will not violate any laws, including privacy laws, and Client is responsible for assessing any regulatory or security requirements with respect to the Data. Client hereby grants IBM permission to process the Data pursuant to this Agreement.
2. Client understands and agrees that IBM Quantum Systems is not designed to any specific security requirements for regulated data, such as personal or sensitive personal information (“PI”). Accordingly, Client represents and warrants that all Data fits entirely within one of the following categories:
   (i) Data which does not contain PI, whether or not anonymized or de-identified in any fashion, and is not otherwise subject to governmental regulation in connection with use of IBM Quantum Systems;
   (ii) personal data of Client Representatives, as detailed in Article 9.1 above; or
   (iii) Data which may have contained PI, but which has been fully anonymized prior to upload to IBM Quantum Systems so as to ensure that the Data no longer contains personal information and a person without prior knowledge of the Data and its collection cannot, from the Data and any other available information, identify any personal information.
3. Client acknowledges that IBM has no obligation to review Data uploaded to IBM Quantum Systems to determine if such Data contains PI. However, if IBM becomes aware of PI provided by Client, IBM will delete or return the PI and in either event will notify Client.
4. Client agrees that it will not deliver or otherwise provide IBM with access to any data that may include PI (except as detailed in Article 9.1 above) or any data that may be subject to the EU DP Law unless and until the Parties have reached agreement in writing on requirements for receipt and processing of any such data.

11. Miscellaneous

1. Client may not circumvent any restrictions placed on Client Representatives’ IBM Quantum Systems accounts, including employing practices to mask physical location.
2. Client may not use IBM Quantum Systems with an intent or potential effect to harm IBM, IBM Quantum Systems, other users of IBM Quantum Systems, or other computer systems, and intellectual property rights therein. Client will promptly notify IBM if Client discovers or suspects that Content may harm IBM Quantum Systems or its users, and will fully cooperate with IBM’s efforts to protect IBM Quantum Systems and its users.
3. Client may not use IBM Quantum Systems in any application or situation where failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage, such as aircraft, motor vehicles or mass transport, nuclear or chemical facilities, life support or medical equipment, or weaponry systems.
4. Client must ensure that Client’s equipment which can access IBM Quantum Systems will be protected, and will maintain security for Client’s computer network.
5. IBM Quantum Systems may not be used for unlawful, obscene, offensive or fraudulent activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, deceptive or disparaging messages, viruses or harmful code, or violating third-party rights. In addition, IBM may remove or refuse to accept or use any Content without limitation. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. In addition, IBM may remove or refuse to accept or use any Content without limitation.
6. Client may not reverse engineer or otherwise attempt to discover or decode any component of IBM Quantum Systems.
7. Each Party represents and certifies, to the best of its knowledge and belief, that it has, or will have, in place appropriate agreements with its customers, vendors, employees, or others, including users, whose services the Party may require, to enable the Party and its customers, vendors, employees, and such others to comply with all the provisions of this Agreement, including compliance with export rules and regulations.
8. Each Party acknowledges that it has not relied on any promises, inducements, representations or other statements made by the other Party regarding the commercial viability, profitability or success in the marketplace of any products or services, and that each Party’s decision to enter into this Agreement is made independently.
9. Both Parties agree that all information exchanged under this Agreement is non-confidential. If either Party requires the exchange of confidential information, it will be made under a separate signed confidentiality agreement. Accordingly, Client agrees that it has not disclosed, nor will it disclose, any information to IBM which is considered to be confidential to Client or any third-party. Subject to valid patent rights and copyrights, IBM will be free to use and disclose any information provided by Client to IBM for any purpose.
10. This Agreement is nonexclusive. Neither Party is a legal representative nor legal agent of the other. Neither Party is legally a partner of the other, and neither Party is an employee or franchise of the other, nor does this Agreement create a joint venture between the Parties. Notwithstanding any provision of this Agreement, either Party may offer (either by itself or together with third-parties) to provide any products and/or services to others without any obligation to the other Party. Either Party may independently develop, acquire and market materials, products and services that may be competitive with the other Party’s products or services, and is free to enter into similar agreements with others.
11. Client will indemnify, defend and hold harmless IBM against any third-party claims arising from use or provision of any product or service provided or developed by Client which incorporates Results or Quantum Inputs.
12. Each Party shall comply with all applicable export and import laws and associated embargo and economic sanction regulations, including those of the United States, that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to certain countries, or for certain end uses or end users. Technology, software, and items furnished under this Agreement are subject to United States export/re- export control laws and regulations, including the U.S. Export Administration Regulations (EAR). The Parties will not provide technical data, defense articles, or services controlled under the U.S. International Traffic in Arms Regulations (ITAR) or the defense trade control regime of any country. IBM may provide EAR99 information under this Agreement and, if shared, will mark such information accordingly and/or execute a separate agreement to the extent necessary to protect the information and ensure ongoing compliance. Notwithstanding the foregoing, unless and until it obtains the advance written consent of of the other Party, a Party shall not disclose or deliver any EAR or ITAR restricted materials/technology to the other Party for any reason, including for purposes of conducting the research program(s) contemplated under this Agreement. In the event that a Party learns that it has (a) disclosed or delivered EAR or ITAR restricted materials/technology to the other Party, or (b) otherwise breached this Section, or (c) is in imminent risk of either (a) or (b) above, then the disclosing Party shall provide immediate notice to the other Party and also to the Client Representative(s) of such underlying facts. Client and IBM will work together to remedy and law violation and / or secure any necessary licenses to perform the activities under this Agreement. In addition, Client represents that Content will not, in whole or part, be (1) regulated data of any kind, including but not limited to sensitive healthcare or financial data, (2) Content controlled under the U.S. International Traffic in Arms Regulation (ITAR) or the defense trade control regime of any country, (3) Content that requires an export license under applicable export control laws, or (4) Content described on the Commerce Control List of the U.S. Export Administration Regulations or the dual-use control list of any country. Client acknowledges that IBM may use personnel in locations worldwide to support the delivery of the Licensed Technology and IBM Quantum System. Further, unless authorized by applicable government license or otherwise permitted by regulation, including but not limited to any U.S. authorization, each Party may not directly or indirectly export or re-export, at any time, any technology, software, and/or commodities furnished or developed under this Agreement between the Parties, or its direct product, to any prohibited country (including release of technology, software, and/or commodities to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, and sanctions regulations. Prohibited countries include Sudan, Ukraine (including Crimea, Donetsk and Luhansk regions of Ukraine), and those in Country Group D:1, E:1 or E:2 of the U.S. Export Administration Regulations Supplement No. 1 to Part 740 of the EAR. Client will use commercially reasonable efforts to ensure that their Client Representatives, partners (i.e., the Members) comply with such laws, regulations, orders, and policies. The Parties acknowledge that these obligations survive the termination of this Agreement.
13. Neither Client nor IBM are responsible for failure to fulfill any obligations due to causes beyond its control.
14. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
15. Nothing in this Agreement affects any statutory rights that cannot be waived or limited by contract.
16. Each Party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The Parties will attempt to resolve disputes or claims between the Parties relating to this Agreement in good faith.
17. No right or cause of action for any third-party is created by this Agreement, nor is IBM responsible for any third-party claims against Client.
18. Except as explicitly provided in this Agreement, this Agreement does not grant any licenses, either directly or indirectly, by implication, estoppel or otherwise, to either Party under any patent, trademark or copyright.
19. Client may not assign this Agreement, in whole or in part, without IBM’s prior written consent. Any attempt to do so is void.
20. Any terms of this Agreement that by their nature extend beyond termination of this Agreement remain in effect until fulfilled, and apply to both Parties’ respective successors and assignees.
21. This Agreement and all related claims is governed by the laws of the State of Illinois, without regard to its conflict and choice-of-law principles. The Parties consent to the exclusive jurisdiction and venue of the U.S. federal or state courts in the State of Illinois to resolve disputes or claims related to this Agreement. The Parties expressly waive the right to trial by jury in any matter which arises under this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this Agreement.
22. This Agreement is the complete and exclusive agreement between the Parties regarding the subject matter hereof and supersedes any prior oral or written communications or understandings between the Parties related to the subject matter hereof.