Updated 22 February 2022
BY ACCEPTING THESE TERMS OF SERVICE YOU ARE ENTERING INTO A BINDING AGREEMENT THAT APPLIES TO ANY USE OF THE PLATFORM. WE HAVE ENDEAVORED TO MAKE THE TERMS SIMPLE AND CLEAR. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, AND REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF ANY ORGANIZATION OR PERSON FOR WHOM YOU ARE USING THE PLATFORM.
We introduce key nomenclature used in this agreement.
2. Use of the platform
We describe your rights to access the platform.
3. Your obligations
We explain what we expect of you to maintain access.
We describe terms of payment and refunds.
5. Intellectual property
We describe your ownership rights and our ability to use data in order to provide you with access to the platform.
6. Confidentiality and privacy
We explain privacy rights and discuss use of the Q-CTRL name in public - including in publications (which we encourage).
7. Warranties and liability
We explain limits on warranties offered on the capabilities of the platform.
We describe both parties rights in terminating this agreement.
9. Technical support and hosting
We introduce the parameters under which we provide support for the platform.
A few miscellaneous legal issues.
Legal information on how to read and interpret this agreement.
12. Addendum for free trial and non-paying users
Information on what changes when you're using a free or trial version of the platform.
13. Addendum for Black Opal users
Information on what changes when you're using Black Opal.
"Access Method" shall mean the means through which we make the platform available to users, such as websites, mobile applications, application programming interfaces (APIs), software development kits (SDKs), software packages, or any form of user interface.
"Confidential Information" shall mean all information exchanged between you and us, whether in writing, electronically or orally, including via the platform, but does not include any information that:
(a) is or becomes public knowledge other than by a breach of this agreement;
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the confidential information.
"Credentials" shall mean credentials used by users to access the platform, including email addresses, passwords, authentication tokens, API keys, hardware keys, license keys and other log in, authentication and/or access control methods.
"Data" shall mean any data inputted or uploaded by you, or with your authority, into the platform, including that automatically inputted by your computer systems or other equipment.
"Fee" shall mean the periodic fee (including value added, goods and services or similar taxes if applicable) payable by you in accordance with your plan for access to the platform and the provision of support, as may be varied pursuant to clause 4.1.
"Hosting Provider" shall mean the company or companies contracted by us to host the platform, provide the access method and store or process your data.
"Intellectual Property" shall mean any pending or granted patent, trademark, copyright, design, know-how or any other intellectual or industrial property rights, anywhere in the world whether or not registered, other than moral rights of individual creators of copyright work.
"Plan" shall mean the particular subscription plan for the platform that you subscribed to (or subsequently change to) with such access rights, support, features and limitations published by us at the time of subscription (or change).
"Platform" shall mean the software made available by us from time to time via the access method, as may be changed or updated from time to time by us. The features of the platform available to you will depend on the plan you have subscribed to and whether the platform is hosted by us, hosted on-premises, or installed locally.
"Q-CTRL" shall mean Q-CTRL Pty Ltd (ABN 78 622 325 535) of Level 10, 171 Clarence Street, SYDNEY NSW 2000 Australia (also referred to as "we", "us" or "our").
"Subscriber" shall mean the person who registers to use the platform and, where the context permits, includes any entity on whose behalf that person registers to use the platform.
"Support" shall mean the support services offered to you by us, the nature and extent of such are determined by your plan.
"User" shall mean anyone that uses the platform with the authorization of the subscriber from time to time.
"You" shall mean the subscriber and, where the context permits, a user.
2. Use of the platform
We grant you the right to access and use the platform and the outputs of the platform according to your plan. If your plan includes an academic discount, it is designated for academic, non-commercial use. This right is non-exclusive, non-transferable and limited by, and subject to, this agreement.
You acknowledge and agree that, subject to any applicable written agreement between the subscriber and the users, or any other applicable laws:
(a) the subscriber determines who is a user;
(b) the subscriber is responsible for all users use of the platform;
(c) the subscriber controls each user's level of access to the platform at all times and can revoke or change a user's access at any time, and for any reason, in which case that person or entity will cease to be a user and
(d) if there is any dispute between a subscriber and a user regarding access to the platform, the subscriber shall decide what access, or level of access, to the platform that user shall have, if any.
3. Your obligations
3.1 General obligations
You must only use the platform and the access method for your own lawful internal business purposes and in accordance with this agreement. You must never use the platform and the access method for the creation of publicly accessible tools and applications.
You acknowledge that the platform is continuously evolving, subject to ongoing development and improvement, and may not be suitable for all uses. The platform must not be used for any purposes on which critical infrastructure or human life depends, or in circumstances where any failure or malfunction may result in personal injury.
In most circumstances, you are solely responsible for the interoperability of the platform with your computer systems, software and hardware. We accept no responsibility for any liability in connection with the manner in which the platform interoperates (or fails to interoperate) with your, or any third party, systems, software or hardware.
In the case of a subscription to an enterprise plan, which includes the incorporation of software customization and professional services, specifications on interoperability will be covered under a separate agreement.
3.2 Access conditions
You must ensure that all credentials required to access the platform are kept secure and confidential. You must immediately notify us of any unauthorized use of your credentials or any other breach of security and you must take all other actions that we reasonably deem necessary to maintain or enhance the security of our computing systems and networks and your access to the platform.
When accessing and using the platform, you must:
(a) not attempt to undermine the security or integrity of our computing systems or networks or, where the platform is hosted by a third party, that third party's computing systems and networks;
(b) not use, or misuse, the platform in any way which may impair the functionality of the platform or the access method, or other systems used to deliver the platform or impair the ability of any other user to use the platform or the access method;
(c) not attempt to gain unauthorized access to any data, information or materials (other than those to which you have been given express permission to access) or to the computer systems on which the platform is hosted;
(d) not transmit via, or input into, the platform any files that may damage any computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use); and
(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or algorithms forming part of, or used to deliver, the platform or the access method.
3.3 Communication conditions
If you use any communication tools available through the access method (such as email, chat or forums), you must agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the platform, including: offers of goods or services for sale, unsolicited commercial email, files that may harm any other person's computing devices or software, content that may be offensive or in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).
When you make any communication via the access method, you represent that you are permitted to make such communication. We are under no obligation to ensure that any communications are legitimate or that relate only to the use of the platform. As with any other software, you must exercise caution when using communication tools available via, or relating to, the platform. However, we reserve the right to remove any communication at any time in our sole discretion.
Unless you are accessing a trial or free version of the platform, an invoice for the fee will be issued either annually or each month starting one month (the "billing period") from the date you first agreed to the terms of this agreement. All invoices will include the fee for the following billing period. We will continue invoicing you according to the agreed schedule until this agreement is terminated in accordance with clause 8.
The fee may be varied by us no more than once every 12 months. We will give you at least 30 days' notice of any changes. If you do not accept any increase in the fee then you may terminate this agreement or elect to change to a different plan within such notice period.
If you elect to upgrade to a plan with additional features, your fee will increase to our then current list price for such plan, unless we have agreed to give you access at a different price. You may elect to downgrade to a plan with fewer features, however, no refund will be given for any fee previously paid or payable. The fee for the subsequent billing period will decrease to our then current list price for such plan, unless we have agreed to give you access at a different price.
4.2 Invoicing and payment
All invoices will be sent to your nominated email address. You must pay all amounts specified in any invoice by the due date on the invoice. If you have set up auto-billing arrangements with us then we will deduct the payment automatically under the terms of those arrangements. You must ensure that you have adequate funds in your nominated bank account or a valid credit card to enable all automatic payments to be processed when due.
If invoices are not paid in full by the due date (including due to any failure of an automatic payment) then, in addition to any other rights we have, we may:
(a) suspend your access to the platform immediately and without further notice, and
(b) charge you interest on the overdue amount at the United States Federal Reserve Federal Funds Rate plus four per cent (4%) per annum, calculated from the date the payment became due to the date of full and final payment.
Unless expressly stated otherwise, all amounts stated to be payable in this agreement (or related documents such as quotations or invoices) exclude GST.
If GST is imposed on any supply made under, or in accordance with, this agreement, the recipient of the taxable supply must pay an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment of the taxable supply is required to be made in accordance with this agreement.
If this document requires a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(a) the amount of the reimbursable expense less the input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense; and
(b) if the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply.
In this clause, "GST" and other words defined in the "A New Tax System (Goods and Services Tax) Act 1999 (Cth)" or subordinate legislation have the meaning given in that legislation.
If we are required to charge you value added, goods and services or similar taxes and duties under the laws of any other jurisdiction, you must pay all such additional amounts at the same time as payment of the taxable supply is required to be made.
5. Intellectual property
Title to, and all intellectual property rights in and relating to the platform, the access method and any documentation relating to the platform remain the property of us (or our licensors).
5.2 Ownership and licenses of data
Title to, and all intellectual property rights in, the data remain your property. However, your access to, and use of, the data is contingent on full payment of the fee when it is due.
You grant us a non-exclusive, royalty-free license to use, copy, transmit, store, and backup your information and data for the purposes of enabling you to access and use the platform and for any other purpose related to the provision of services to you.
We will also collect information relating to your use of the platform, such as the access method used, profile of your system, type and brands of hardware, and configuration settings. You irrevocably grant us and our collaborators the non-exclusive right to use such information for further research, product development and benchmarking purposes. We will not publish such information in a manner that identifies it as yours.
5.3 Backup of data
We adhere to our best practice policies and procedures to prevent data loss, including a frequent system data backup regime, but do not make any guarantees that there will be no loss of data. We expressly exclude liability for any loss of data no matter how caused.
You can request a backup of your data at any time. Backups will be provided in a common export format determined by us. Additional costs may apply depending on the frequency, size, and delivery requirements of the backups.
5.4 Third-party applications and your data
If you enable third-party applications for use in conjunction with the platform, you acknowledge that we may allow the providers of those third-party applications to access your data as required for the interoperation of such third-party applications with the platform. We will not be responsible for any disclosure, modification or deletion of your data resulting from any such access by third-party application providers.
5.5 Ownership and protection of proprietary rights
You acknowledge that all intellectual proprietary rights in the platform and the access method belong exclusively to us or our licensors and that you will not dispute such ownership. In the event that we provide new or customized features or improvements based on requests or suggestions made by you, you acknowledge that all rights in any such features or improvements belong exclusively to us, and that you will not be compensated for the request or suggestion. You hereby assign to us all intellectual property rights you may have in any features or improvements suggested by you, and agree to sign such documentation as we may reasonably require to further assure our title to such features or improvements.
In the event you, or anyone on your behalf, obtains patent protection for any invention regarding, involving or derived from the use of the platform or the access method, you grant us a perpetual, irrevocable, non-exclusive, worldwide, fully paid up license (capable of sublicense and transfer) of such patent right, including the right to make, have made, use, sell, offer for sale, and import any product and to practice any method the subject of such patent right and to authorize others to do so. Any assignment of such patent rights is, and must be made subject to, such license.
5.6 Open source files and libraries
Certain files and libraries used in the platform may be the subject of open source licenses. The terms of such licenses apply to your use of such files and libraries, and prevail in the event of any inconsistency with this agreement.
6. Confidentiality and privacy
Each party will preserve the confidentiality of all confidential information of the other obtained in connection with this agreement. Neither party will, without the prior written consent of the other, disclose or make any confidential information available to any person, or use the same for its own benefit, other than as contemplated by this agreement.
This clause above does not apply to the extent that any information is required to be disclosed by law.
We encourage our users to publish or present the results of their use of the platform in peer-reviewed journals and at academic conferences. Any such publications must not be misleading or deceptive in any respect, or contain material relating to us, our personnel or products that are libelous, defamatory or otherwise likely to bring us into disrepute or prejudice the goodwill of our brand. We encourage you to share copies of proposed publications with us beforehand. If publishable outcomes arise from joint development or efforts in collaboration with our personnel, you must adhere to accepted principles of academic honesty and credit.
6.3 Use of names
You will not issue any media release or use our name, brands or logos in any promotional materials regarding this agreement without prior written consent.
We will not use any personally identifying information in any media release or promotional materials regarding this agreement without prior written consent of the other party. We may use non-identifying information, such as your organization name or logo, for general promotional purposes.
We will comply with our obligations under the "Privacy Act 1998 (Cth)", and if you are a European resident we will comply with our obligations to you under the European Union General Data Protection Regulation (GDPR).
7. Warranties and liability
You warrant that:
(a) where you have registered to use the platform on behalf of another person, you have the authority to agree to this agreement on behalf of that person and agree that by registering to use the platform you bind the person on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of this agreement, without limiting your own personal obligations under this agreement; and
(b) you are authorized to use the platform and that you are authorized to access the information and data that is made available to you through your use of the platform (whether that information and data is your own or that of anyone else).
Subject to clause 7.3, you acknowledge and agree that:
(a) quantum computing is at an early stage of development and the provision of, access to, and use of, the platform and support is on an "as is" basis and at your own risk;
(b) it is your sole responsibility to determine that the platform meets the needs of your business and is suitable for the purposes for which it is used, including that the plan you have subscribed to is adequate for your needs;
(c) the platform and support are supplied without any representations, assurances, or warranties (express or implied), including warranties as to quality, safety, merchantability, fitness for any purpose, or non-infringement of intellectual property and other rights of third parties;
(d) We do not warrant that the use of the platform will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the platform, including telephone services, computer networks and the Internet, can be unpredictable and may, from time to time, interfere with or prevent access to the platform. We are not in any way responsible for any such interference or prevention of your access to, or use of, the platform or access method; and
(e) it is your responsibility to check that storage of, and access to, your data via the platform and the access method will comply with laws applicable to you.
7.3 Limitation on warranties
Where any prescribed terms apply, the liability of us to you for a breach of such a term is limited to the maximum extent permitted by law. Certain guarantees and rights may be conferred on you which cannot be excluded, restricted or modified. If so, then the parties agree that, to the maximum extent permitted by law, our liability under those guarantees and rights is limited to the re-supply of the relevant goods or services or the payment of the cost of re-supplying the relevant goods or services (at our option). "Prescribed terms" means terms, conditions and warranties implied by law into some contracts for the supply of goods or services, and which the law expressly provides, may not be excluded, restricted or modified or may be excluded, restricted or modified only to a limited extent (including rights you may have as a consumer under the "Competition and Consumer Act 2010 (Cth)").
You indemnify us, our affiliates, licensors and our respective employees, officers, agents and contractors against all claims, costs, damage and loss arising from your breach of this agreement, including our legal fees and expenses, and any costs relating to the recovery of any fees that are due but have not been paid by you.
7.5 Limitation of liability
To the maximum extent permitted by law, we excludes all liability and responsibility to you (or any other person) in contract, tort (including negligence) or otherwise, for any loss (including loss of information, data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the platform, the access method or support.
If you suffer loss or damage as a result of our negligence or failure to comply with this agreement, any claim by you against us arising from such negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the fees paid by you in the previous 12 months.
If you are not satisfied with the platform or the support, your sole and exclusive remedy is to terminate this agreement in accordance with clause 8.2.
8.1 No-fault termination and refunds by us
We may terminate this agreement at any time without cause and in such an event we will refund such fees paid in advance in respect of the period after termination to your nominated credit card or bank account in the same currency as the fees were originally paid by you.
We will not otherwise provide any refund for any remaining prepaid period for a prepaid fee subscription unless required to do so under a legal obligation that cannot be contracted out of.
8.2 No-fault termination by you
This agreement will continue for the period covered by the fee paid or payable. At the end of each billing period this agreement will automatically continue for another period of the same duration as that period, provided you continue to pay the prescribed fee when it is due, unless either party terminates this agreement by giving notice to the other party at least 30 days before the end of the relevant payment period.
If you terminate this agreement you remain liable for all relevant fees for the then current billing period up to and including the day of termination of this agreement. No refunds will be given if you terminate prior to the end of a billing period.
(a) breach any provision of this agreement (including by non-payment of any fees) and do not remedy the breach within 10 business days after receiving notice of the breach if the breach is capable of being remedied;
(b) breach any provision of this agreement and the breach is not capable of being remedied; or
(c) become insolvent, go into liquidation, have a receiver or manager appointed over any of your assets, make any arrangement with your creditors or become subject to any similar insolvency event in any jurisdiction, then we may take any or all of the following actions, at our sole discretion:
(d) terminate this agreement and your use of the platform and the access method;
(e) suspend, for any definite or indefinite period of time, your use of the platform and the access method;
(f) suspend or terminate access to all or any data;
(g) limit, suspend or terminate provision of support to you; or
(h) take any or all of the above actions in respect of any or all other persons whom you have authorized to have access to your information or data.
We may also terminate this agreement immediately if it becomes unlawful for us to supply access to the platform to you. No refunds will be made in such an event.
8.4 Accrued rights
Termination of this agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination or which relate to the consequences of termination. On termination of this agreement you will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease using the platform and the access method.
8.5 Deletion of data
We are entitled to delete all copies of your data after 30 days following termination of this agreement. You are entitled to receive a backup of your data provided the request is made within 20 days following termination of this agreement.
9. Technical support and hosting
We will provide you with the support as described in your plan, subject to the following conditions and any other conditions, limitations or exclusions described in your plan:
(a) all fees due under this agreement are fully paid at the time of the support request;
(b) the person making the request has valid credentials;
(c) the support request is solely related to the platform as delivered by us, and not related to ancillary hardware, software or systems such as computers or networks used by you to access, or in conjunction with, the platform.
Unless otherwise specified in your plan, the support provided under this agreement is not intended to be a replacement for end-user training, system configuration or consulting. If we consider that a support request does not meet the criteria for support under your plan then we may decline to respond to the support request and may suggest alternative means of satisfying the support request such as via professional services for additional training or consulting or by entering into a more comprehensive support agreement that better meets your requirements.
9.2 Service availability
We will use all reasonable endeavors to ensure that the platform is available to the user for 90.0% of all scheduled available time, solely as it relates to the hosting provider's network and server Internet access. Scheduled available time shall be defined as 24 hours per day, seven days per week, excluding:
(a) routine system maintenance downtime of up to six hours per week, which shall be scheduled outside of normal business hours if practical;
(b) downtime to address specific critical software issues; and
(c) any downtime caused by circumstances beyond the immediate control of us or our contractors.
9.3 Data sovereignty
Your data will be hosted in the United States. Users will be able to connect to the platform from anywhere on the Internet and thus some of your data may be transmitted outside the United States in response to user queries.
10.1 Entire agreement
10.2 Amendment and waiver
This agreement may only be amended by agreement of the parties in writing. No delay or indulgence by a party in enforcing this agreement will prejudice or restrict the rights of that party. Any waiver of a party's rights must be expressly stated in writing and will not operate as a waiver of any subsequent breach.
Neither party will be liable for any delay or failure in performance of its obligations under this agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10.4 No assignment
You may not assign or novate any of your rights or obligations under this agreement to any other person without our prior written consent (not to be unreasonably withheld). We may assign or novate all or some of our rights or obligations under this agreement to an affiliate, a purchaser of our business or as we otherwise see fit.
10.5 Governing law and jurisdiction
This agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of that state (without regard to its conflicts of laws principles). lf you breach your obligations under this agreement then we may suffer irreparable harm. In addition and without prejudice to any other remedies that we may have, we are entitled to seek and obtain injunctive relief in any court of competent jurisdiction
The provisions of this agreement are severable. If any provision is found or held to be invalid or unenforceable or capable of termination by a party in any jurisdiction in which this agreement is performed, then the meaning of that provision will be construed, to the extent feasible, to render the provision enforceable.
Any notice given under this agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to us must be sent via the contact form located at https://q-ctrl.com/contact or as we otherwise notify to your nominated email address. Notices to you will be sent to the email address that you provided when setting up your access to the platform.
The following rules of interpretation apply unless the context requires otherwise.
(a) Headings and the summary above are for convenience only and do not affect interpretation.
(b) The singular includes the plural and conversely and a reference to "a thing" (including a right) includes a reference to a part of that thing.
(c) A reference to:
(i) a person includes incorporated and unincorporated bodies and other entities;
(ii) any party to this agreement or any other entity includes the party's or entity's successors and permitted assigns;
(iii) any document is to that document as amended, novated, supplemented or replaced from time to time, except to the extent prohibited by this agreement or that other document;
(iv) legislation includes any amendment or superseding legislation; and
(v) conduct includes any omission and any statement or undertaking, whether or not in writing.
(d) Where examples of a thing or set of things are given by reference to the word "including", the meaning of references to the thing or set of things is not to be limited by reference to the examples.
(e) This document, or any part of it, is not to be construed against a party because that party drafted or proposed it.
12. Addendum for free trial and non-paying users
The following clauses apply to free trial and non-paying users:
2. Use of the platform
3. Your obligations
5. Intellectual property (except for 5.3 Backup of data)
6. Confidentiality and privacy
7. Warranties and liability
The following additional terms apply to free trial and non-paying users and if any conflict arises these additional terms will prevail:
(a) We may terminate your use of the platform at any time and for any reason;
(b) you agree that your data has no commercial value and that we may delete your data upon termination of your access to the platform, and
(c) you will not be entitled to technical support, although we may elect to provide this at our sole discretion.
13. Addendum for Black Opal users
13.1 License to use
Unless otherwise specified, Black Opal is licensed as a personal, non-exclusive, non-transferable, limited license product, solely for internal, non-commercial use. Examples of non-commercial uses include academic research, personal experimentation, or teaching and educational purposes. Non-commercial means that the licensee is prohibited from using the product and its content to derive commercial advantage or monetary compensation. Please contact Q-CTRL if you want to reuse the content for any purpose other than for personal education.
You agree that you shall not, and shall not authorize any third party to:
(a) use Black Opal or any part thereof for any commercial or for-profit purpose or any other purpose other than as permitted in this agreement;
(b) modify, adapt, decompile, disassemble, translate into another computer language, create derivative works of, or otherwise reverse engineer Black Opal, or disclose any trade secrets or any other intellectual property relating to Black Opal;
(c) license, sublicense, distribute, sell, lease, transfer, assign, trade, rent or publish Black Opal or any part thereof and/or copies thereof, to any third party;
(d) make copies of Black Opal;
(e) remove any copyright or other notices from Black Opal; or
(f) use, without its express permission, the name of Q-CTRL.