This IBM Research Scenario Planning Advisor (SPA) User Agreement (“Agreement”) is between International Business Machines Corporation, a New York corporation ("IBM"), through its Thomas J. Watson Research Center, at 1101 Kitchawan Road, Route 134, Yorktown Heights, NY 10598 and you the end user (“You” or “Your”).
This Agreement has restrictions and limitation on use of the SPA System by You, the breach of which may subject You to legal liability. By clicking “Accept” below, You hereby attest and affirm that You are an End User (as defined below) and agree to the terms of this Agreement.
Definitions
“End User” means an end user of the IBM SPA System and IBM SPA Data under this Agreement for evaluation purposes only and enrolled in or employed by a Permitted Institution.
“Copyrightable Materials” means IBM SPA Data and an IBM SPA application programming interface (the “IBM SPA API”) to the IBM SPA System, which are owned by IBM and licensed to You under this Agreement, and excluding any software. For clarity under this Agreement You will not have access to software in source code or object form, but You will have access to the IBM SPA System which executes software via a web interface and the IBM SPA API, and provided to You under Article 2 of this Agreement.
“IBM SPA Data” means the results that are generated by IBM for You during the Term, and that are retrievable by You from the IBM SPA System, access to which is provided to You under Article 4.1 of this Agreement. For avoidance of doubt, IBM shall own the IBM SPA Data which shall be licensed to You under this Agreement.
“IBM SPA System” means IBM’s Scenario Planning Advisor cloud-based data processing platform that automatically projects many plausible high-impact future scenarios to provide insights for strategic decision making and created by IBM.
“IBM Subsidiary” means a corporation, company, or other entity that IBM controls by directly or indirectly owning or controlling more than fifty percent (50%) of the voting shares, or other ownership interest, along with the right to manage the business or control the disposition of assets of such entity.
“Permitted Institution” means (i)government entities of any transnational, national, regional or local government, (ii) non-governmental organizations engaged in for profit or not-for-profit activities, and (iii) any university or educational institution.
“User Data” means any data or information (i.e., risk drivers, business documents) You upload to the IBM SPA System under this Agreement.
1. Purpose: The IBM SPA System allows domain experts to generate diverse alternate scenarios of the future, enhancing their ability to imagine various possible outcomes, including unlikely but potentially impactful futures. IBM operates, through its IBM Research cloud, the IBM SPA System, which may be updated or modified by IBM at its sole discretion at any time. IBM will provide access to the IBM SPA System solely to You via IBM’s password protected website and the IBM SPA API operated on a server owned and controlled by IBM, at no charge, for You to learn how the IBM SPA System can be used by You. Access to the IBM SPA System is provided to You by IBM solely for non-commercial evaluation purposes by You. IBM will immediately terminate your access to the IBM SPA System if you breach the terms stated above, or any other terms of this Agreement. Any use beyond the above will require a separate signed agreement, which IBM may enter at its sole discretion. Subject to the provisions of Article 3c., the parties may publish the results in scientific journals, periodicals, or conference proceedings. Each party will bear its own expenses in connection with this Agreement.
2. Ownership, Licenses and Restrictions
a. Access to the IBM SPA System is provided to You by IBM solely for non-commercial evaluation purposes by You. You are strictly prohibited from using the IBM SPA System or IBM SPA Data for any content that requires an export license. Any use beyond the above will require a separate signed agreement, which IBM may enter at its sole discretion.
b. Subject to Articles 4, 7 and 3. c., IBM hereby grants to You a nonexclusive, nontransferable, internal copyright license to the Copyrightable Materials, not including IBM SPA Data, provided to You by IBM, revocable only in accordance with the provisions of Article 7, to use, execute, display, reproduce, perform, (all the foregoing internally only) such Copyrightable Materials, solely for internal research and evaluation purposes by You within the context of your enrollment at or employment by the Permitted Institution.
c. Subject to Articles 4, 7 and 3. c., IBM hereby grants to You, during the Term (as defined in Section 7. below) of this Agreement, a nonexclusive, nontransferable, revocable, internal copyright license to the IBM SPA Data generated by IBM under this Agreement to use, execute, display, reproduce, perform, disclose, distribute and transmit internally, and prepare derivative works from such IBM SPA Data, solely for the purpose of exercising rights granted by IBM to You under this Article 2 b. (the preceding paragraph), and provided that reproductions and embodiments of the IBM SPA Data shall include the copyright notices or acknowledgments contained in the IBM SPA Data and a statement that the IBM SPA Data is provided “as is”.
d. IBM owns all rights in the IBM SPA System and IBM SPA Data. IBM has and retains all right, title and interest in and to copyrights and know how in all IBM SPA APIs authored by IBM under the Agreement. You hereby assign to IBM any copyright in any work(s) of authorship (“Works of Authorship”) provided by You to IBM. You agree to execute any documents necessary to perfect IBM’s rights in the Works of Authorship. You represent and warrant that You have all necessary rights to use any User Data or information You upload for use in conjunction with the IBM SPA System or otherwise provide to IBM, and that no part of any Works of Authorship provided by You to IBM violates any intellectual property rights of any third party.
e. Subject to Articles 2. d., 4 and 7, IBM will make available to You access to the IBM SPA System through the IBM SPA API by which You will have access to run queries on the IBM SPA System and to download certain IBM SPA Data based on such queries, solely for internal evaluation purposes only for use within the context of your enrollment in or employment by the Permitted Institution. IBM will be responsible for coordinating the access given to You to the IBM SPA System. You are licensed to access the IBM SPA System only to access certain IBM SPA Data and to upload User Data owned by You during the Term. You shall use the IBM SPA System for no other purpose.
f. You represent and warrant that You are the original author of all User Data You will provide to IBM under this Agreement and that You have all necessary rights to provide such User Data to IBM.
g. You assume all risks associated with its access to the IBM SPA System all component(s) thereof. The risks You assume include, but are not limited to, the risks of IBM SPA System; damage to or loss of Your end user’s programs or equipment; and unavailability or interruption of operations.
h. You will not and shall not allow any third party to: 1) copy, modify, link to, distribute or access the IBM SPA System or any component thereof, except as expressly provided in this Agreement; or 2) reverse engineer or otherwise attempt to discover or decode any component of the IBM SPA System.
i. You will, at your sole expense, defend, indemnify and hold harmless IBM, its Subsidiaries, its officers, directors, agents, representatives and employees from and against any and all claims, demands, damages, liabilities, penalties, and expenses, including, but not limited to, attorney's fees and costs, whether arising in contract, tort or otherwise, wherever and by whomever brought, arising out of, or in connection with any claim brought against IBM relating to the use of the IBM SPA System that is in breach this Agreement.
j. Neither IBM nor its suppliers are responsible for the accuracy, completeness, timeliness, reliability, content or availability of the IBM SPA System.
3. Security Description / User Data:
a. Security Policies: Any change to IBM’s data security and privacy principals will not degrade the security of the IBM SPA System. You recognize this IBM SPA System does not offer features for the protection of content that contains personal data, sensitive personal data, or data subject to additional regulatory requirements. You are responsible for ensuring that no personal data, sensitive data, or data subject to additional regulatory requirements is provided within this IBM SPA System. You are solely responsible for the collection of User Data used for the purpose of this Agreement. You hereby grant to IBM and IBM Subsidiaries an internal nonexclusive, worldwide, and fully paid-up license to use the User Data provided to IBM for the purpose of this Agreement. You acknowledge that IBM has no knowledge of or obligation to review the types of data that have been included in the User Data, and cannot make an assessment as to the suitability of the IBM SPA System or the security protections in place. You represent and warrant You have all necessary consents and licenses to permit the licensing and use of User Data such that the use of User Data such that the use of User Data by IBM in accordance with this Agreement will not violate any laws, including privacy laws. You will be solely responsible for and will control access to the IBM SPA System. You will ensure that all equipment which can access the IBM SPA System will be physically and technically protected, including without limitation, screen and keyboard locks, and will prevent IP forwarding or other services such as DNS or DHCP, and maintain security for Your facilities and computer networks. You agree to protect all passwords from unauthorized users and use. You will not: (i) use the IBM SPA System for activity unrelated to the purpose set forth in this Agreement; (ii) connect remote devices to the IBM SPA System for non-Purpose related activity; (iii) saturate the IBM SPA System or consume its resources such that the IBM SPA System is forced to reset or its performance is degraded such that it can no longer provide its intended use; (iv) use the IBM SPA System or any equipment You connected for any unlawful or improper activity; (v) provide access to any third party other than as set forth in this Agreement; or (vi) use the IBM name, or any IBM trademark without IBM’s prior written approval. You will ensure that no Harmful Code will enter IBM as a result of Your access. “Harmful Code” means any computer programming code constructed with the intent or likelihood of damage to or interference with other computer programs, data files or hardware, without the knowledge or consent of the computer user, and includes self-replicating and self-propagating program instructions such as viruses, worms, or the like. You will promptly notify IBM if You discover or suspect that Harmful Code has entered IBM, and will fully cooperate with IBM’s efforts to remove Harmful Code and protect the IBM SPA System, which may include, without limitation, termination of Your access rights to the IBM SPA System. Upon reasonable notice, IBM may verify Your compliance with the terms of this Agreement. You agree to cooperate with such verification. IBM may use an independent auditor to assist with such verification, provided IBM has a written confidentiality agreement in place with such auditor.
b. Security – No Encryption of Data: The IBM SPA System does not encrypt content during data transmission between the IBM network and You or at rest awaiting data transmission. You are responsible for any encryption of content and for addressing any encryption and obfuscation of any personally identifiable (PI) information within the IBM SPA System, and to ensure that no PI or SPI (sensitive personal information) is provided to the IBM SPA System. You also agree not to submit or upload any materials or software through the IBM SPA System.
c. Authorization to Process Personal Data: IBM, its affiliates, and contractors of either, may, wherever they do business, store and otherwise process your personal information that may be collected in connection with your access and use of the IBM SPA System in accordance with the terms of this Agreement. The collected information may include your business contact information, for example, your email, your anonymized password, the name of the institution you are affiliated with, and the purpose for which you are accessing the IBM SPA System, and information, that You provides to IBM to enable your use of the IBM SPA System or that IBM collects using tracking technologies, such as cookies and web beacons, regarding Your use of the IBM SPA System (collectively, “Personal Data”). Access to and use of the Personal Data shall be limited to IBM, its affiliates, and contractors of either, personnel, having a “need to know” with regard to the provisions of access to the IBM SPA System agreed to in this Agreement. The IBM Privacy Statement at https://www.ibm.com/privacy/ and the IBM Online Privacy Statement at https://www.ibm.com/privacy/details/us/en/ provide additional details. By accepting this Agreement, You are giving IBM your consent to collect, access, store and use Your Personal Data, all in accordance with the terms of this Agreement and the IBM privacy statements referenced above. Unless expressly requested by you as described below, your Personal Data will be retained for as long as it is needed, for the term of this Agreement, after which IBM shall delete the Personal Data, except as required to be retained by applicable law, rule or regulation. You can request IBM to delete your Personal information by contacting scenplan@us.ibm.com, and upon deleting your Personal Data, IBM will revoke your access to the IBM SPA System and this Agreement will terminate.
4. Confidentiality: Each party agrees not to disclose any information to the other party which is considered by the disclosing party to be confidential. You specifically agree all User Data is non-confidential. Each party will be free to use and disclose any information provided by the other party, including use by IBM of the User Data You provide, for any purpose, subject to valid patent rights and copyrights.
5. User Feedback: Technical communications and issue reporting will be conducted via a web feedback form provided by the IBM SPA System. IBM will be notified of these communications and examine them during business hours, Monday through Friday, 8:00am to 5:00pm Eastern Time, excluding local holidays and IBM site holidays. Such communications will include usage questions and issues encountered via use, etc. You are under no obligation to provide User Feedback. You understand and agree that if provided such User Feedback is not confidential, and that IBM shall be free to act on and use such User Feedback for any purpose. For avoidance of doubt, IBM is under no obligation to maintain, correct, or otherwise support the IBM SPA System. IBM does not represent that the IBM SPA System will be made generally available, nor does IBM commit to any Service Level Agreement regarding questions asked or issues raised. IBM does not represent that any system made generally available will be similar to or compatible with the IBM SPA System provided under this Agreement.
6. Charges: Each party will bear its own expenses in connection with this Agreement.
7. Term and Renewal: The term of this Agreement begins on the date this Agreement is accepted by You and will continue for a period of thirty (30) days upon which the IBM SPA System will prompt You to accept a new thirty (30) days term. IBM reserves the right to revoke your access to the IBM SPA System without cause and at any time. Upon the expiration or termination of this Agreement IBM will destroy all User Data.
8. Disclaimers: THE IBM SPA SYSTEM, IBM SPA DATA, COPYRIGHTABLE MATERIALS AND ANY INFORMATION PROVIDED BY IBM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT OF PATENTS, COPYRIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT. IBM is under no obligation to maintain, correct, or otherwise support the IBM SPA System. IBM does not represent that the IBM SPA System will be made generally available. IBM does not represent that any system made generally available will be similar to or compatible with the IBM SPA System provided under this Agreement. Except for claims arising out of a breach by You of Article 2. i., neither party will be liable for any consequential damages, lost profits, lost savings, loss of anticipated revenue, or any exemplary, punitive, special or indirect damages, even if advised of their possibility.
9. Limitation of Liability: IBM’s entire liability for all claims in the aggregate arising from or related to this Agreement or any harm or otherwise arising under this Agreement will not exceed the amount of any (1) damages for bodily injury (including death) and damage to real property and tangible personal property, (2) other actual direct damages up to U.S. $5,000 (or equivalent in local currency), and (3) damages that cannot be limited under applicable law. This limit also applies collectively to IBM, its affiliates, contractors, and suppliers, and is the maximum for which they are collectively responsible.
10. General Provisions: 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, copyright or other intellectual property right of the other party. This Agreement does not confer any right to use in advertising, publications or promotional activities any name, trade name, trademark or other designation of either party (including any contraction, abbreviation or simulation of any of the foregoing). Each party agrees not to use or refer to this Agreement or its terms in any such activities without the express written approval of the other party. Notwithstanding the foregoing, if You publish any results in scientific publications, or any other publications permitted under this Agreement, you will acknowledge that you have used the IBM SPA System by stating: "Contributions from IBM's SPA Technology are acknowledged - https://spa-service.draco.res.ibm.com". End User agrees to comply with all applicable import and export laws and regulations, including those of the United States regarding embargo and sanctions regulations and prohibitions on export by certain end users or for any prohibited end uses (including nuclear, space or missile, and chemical and biological weapons). You are responsible for compliance with all applicable laws, and You agree to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Your use of the IBM SPA System and to not, in violation of any laws, transfer, or authorize the transfer of, any services (a) into or for the benefit of an entity located in a country subject to a U.S. and/or U.N. embargo, or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. You represent that User Data will not, in whole or part, be controlled under the U.S. International Traffic in Arms Regulation (ITAR) or the defense trade control regime of any country and that no User Data accessible to IBM will require an export license or is restricted from export to any IBM global resource or personnel under applicable export control laws. You further represent that User Data will not be described on the Commerce Control List of the U.S Export Administration Regulations or the dual-use control list of any country. You acknowledge that IBM may use global resources (non-permanent residents used locally and personnel in locations worldwide) to remotely support the delivery of IBM SPA. End User represents that no Content accessible to IBM will require an export license or is restricted from export to any IBM global resource or personnel under applicable export control laws. Each party acknowledges that these obligations survive the termination of this Agreement. This Agreement does not create a joint venture, partnership, employment relationship or other agency relationship between the parties. Neither party may assign, or otherwise transfer, its rights or delegate its duties or obligations under this Agreement without prior written consent of the other party. Any attempt to do so is void. Neither party may bring an action, regardless of form arising out of the performance of this Agreement, more than one year after the cause of action has accrued. Each party represents that it has appropriate agreements with its employees or others whose services the party may require, sufficient to enable it to comply with all the terms of this Agreement. You do not have any obligations nor will You assume any obligation which call for a disposition of rights which is inconsistent with the terms of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby as long as the intent of the parties can be preserved. This Agreement is governed by the laws of the State of New York, without regard to its conflict of laws provisions. The parties expressly waive the right to trial by jury in any matter which arises under this Agreement. Any rights and obligations which by their nature survive and continue after the end of this Agreement will survive and continue and will bind the parties and their successors and assigns, until such obligations are fulfilled. Upon reasonable notice, IBM may verify Your compliance with the terms of this Agreement. You agree to cooperate with such verification. IBM may use an independent auditor to assist with such verification, provided IBM has a written confidentiality agreement in place with such auditor. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes any prior oral or written communications or understandings between the parties related to its subject matter.