Welcome to Q-CTRL's Black Opal™, which helps you harness the power of quantum control engineering to extract maximum performance from your quantum hardware. We're glad you're here.
By accepting these terms of service you are entering into a binding agreement that applies to any use of Black Opal™. 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 Black Opal™.
For your convenience, a short non-binding summary of the full legal terms follows.
1. Definitions - Here we introduce key nomenclature used in this agreement.
2. Use of Black Opal™ - We describe your rights to access Black Opal as a paying customer.
3. Your Obligations - We explain what we expect of you to maintain access.
4. Payment - We describe terms of payment and refunds as appropriate.
5. Intellectual Property - We describe your ownership rights and our ability to use data in order to provide you with this service.
6. Confidentiality and Privacy - Here we explain privacy rights and discuss use of the Q-CTRL name in public, including in publications (which we encourage).
7. Warranties and Liability - Limits on warranties offered on the product's capabilities.
8. Termination - This describes both parties rights in terminating this agreement.
9. Technical Support and Hosting - We introduce the parameters under which we provide support for this product.
10. General - A few miscellaneous legal issues.
11. Interpretation - 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 this product.
Access Method - the means through which Q-CTRL makes Black Opal™ available to users, such as websites, mobile applications, application programming interfaces (APIs) or any form of user interface.
Black Opal™ - the Software as a Service (SaaS) platform made available by Q-CTRL from time to time via the Access Method, as may be changed or updated from time to time by Q-CTRL. The features of Black Opal™ available to you will depend on the Plan you have subscribed for.
Confidential Information - includes all information exchanged between you and Q-CTRL, whether in writing, electronically or orally, including via Black Opal™, 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 is independently developed without access to the Confidential Information.
Credentials - credentials used by Users to access Black Opal™, including passwords, access codes, authentication keys and other log in methods.
Data - any data inputted or uploaded by you or with your authority into Black Opal™, including that automatically inputted by your computer systems or other equipment.
Fee - 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 Black Opal™ and the provision of Support, as may be varied pursuant to clause 4.1.
Hosting Provider - the company or companies contracted by us to host Black Opal™, provide the Access Methods and store or process your data.
Intellectual Property - 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 - the particular subscription plan for Black Opal™ that you subscribed to (or subsequently change to), with such access rights, support services, features and limitations published by Q-CTRL at the time of subscription (or change).
Q-CTRL - Q-CTRL Pty Ltd (ABN 78 622 325 535) of Level 10, 171 Clarence Street, Sydney NSW 2000 Australia (also referred to as we or us).
Subscriber - the person who registers to use Black Opal™, and, where the context permits, includes any entity on whose behalf that person registers to use Black Opal™.
Support - the support services offered to you by Q-CTRL, the nature and extent of such are determined by your Plan.
User - anyone that uses Black Opal™ with the authorization of the Subscriber from time to time.
You - the Subscriber, and where the context permits, a User.
2. Use of Black Opal™
Q-CTRL grants you the right to access and use Black Opal™ according to your Plan. 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 Black Opal™;
(c) the Subscriber controls each User's level of access to Black Opal™ 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 Black Opal™, the Subscriber shall decide what access or level of access to the relevant Data or Service that User shall have, if any.
3. Your Obligations
3.1 General Obligations
You must only use Black Opal™ and the Access Method for your own lawful internal business purposes, in accordance with this agreement.
You acknowledge that Black Opal™ is an evolving product subject to ongoing development and improvement, and may not be suitable for all uses. Black Opal™ 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.
You are solely responsible for the interoperability of Black Opal™ with your computer systems, software and hardware. We accept no responsibility for any liability in connection with the manner in which Black Opal™ interoperates (or fails to interoperate) with your or any third party systems, software or hardware.
3.2 Access Conditions
You must ensure that all Credentials required to access Black Opal™ are kept secure and confidential. You must immediately notify Q-CTRL 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 Q-CTRL's computing systems and networks and your access to Black Opal™.
When accessing and using Black Opal™, you must:
(a) not attempt to undermine the security or integrity of Q-CTRL's computing systems or networks or, where Black Opal™ is hosted by a third party, that third party's computing systems and networks;
(b) not use, or misuse, Black Opal™ in any way which may impair the functionality of Black Opal™ or the Access Methods, or other systems used to deliver Black Opal™ or impair the ability of any other user to use Black Opal™ or the Access Methods;
(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 Black Opal™ is hosted;
(d) not transmit via, or input into, the Access Method or Black Opal™ 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 Black Opal™ 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 Black Opal™, including: offers of goods or services for sale, unsolicited commercial e-mail, 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. Q-CTRL is under no obligation to ensure that any communications are legitimate or that relate only to the use of Black Opal™. As with any other web-based service, you must exercise caution when using communication tools available via or relating to Black Opal™. However, Q-CTRL reserves the right to remove any communication at any time in its sole discretion.
Unless you are accessing a trial, or free, version of Black Opal™ then 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 Q-CTRL no more than once every 12 months. Q-CTRL 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 Q-CTRL's 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 Q-CTRL's 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 and also available to be viewed and printed via our website. 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 Q-CTRL 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 processes 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 Black Opal™ 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) 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 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 Black Opal™, the Access Method and any documentation relating to Black Opal™ remain the property of Q-CTRL (or its 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 the Data is contingent on full payment of the Fee when it is due.
You grant Q-CTRL 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 Black Opal™ and for any other purpose related to the provision of services to you.
We will also collect information relating to your use of Black Opal™, 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
Q-CTRL adheres to its best practice policies and procedures to prevent data loss, including a frequent system data backup regime, but does not make any guarantees that there will be no loss of Data. Q-CTRL expressly excludes 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 Q-CTRL. 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 Black Opal™, you acknowledge that Q-CTRL may allow the providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with Black Opal™. Q-CTRL 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 Black Opal™ and the Access Methods belong exclusively to Q-CTRL or its licensors and that you will not dispute such ownership. In the event that Q-CTRL provides 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 Q-CTRL, and that you will not be compensated for the request or suggestion. You hereby assign to
Q-CTRL 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 Black Opal™ or the Access Methods, you grant Q-CTRL 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 authorise 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 Black Opal™ 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 Black Opal™ 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 Q-CTRL, our personnel or products that is 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 Q-CTRL personnel, you must adhere to accepted principles of academic honesty and credit.
6.3 Use of Names
Neither party may issue a media release, or use the name, brands or logos of the other party in any promotional materials, regarding this agreement without prior written consent of the other.
Q-CTRL will comply with its 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.
7. Warranties and Liability
You warrant that:
(a) where you have registered to use Black Opal™ 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 Black Opal™ 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 Black Opal™ and that you are authorized to access the information and Data that is made available to you through your use of Black Opal™ (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, Black Opal™ and Support is on an "as is" basis and at your own risk;
(b) it is your sole responsibility to determine that Black Opal™ meets the needs of your business and is suitable for the purposes for which it is used, including that Plan you have subscribed to is adequate for your needs;
(c) Black Opal™ 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) Q-CTRL does not warrant that the use of Black Opal™ will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing Black Opal™, including telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to Black Opal™. Q-CTRL is not in any way responsible for any such interference or prevention of your access or use of Black Opal™ or Access Methods; and
(e) it is your responsibility to check that storage of and access to your Data via Black Opal™ and the Access Method will comply with laws applicable to you.
7.3 Limitation on Warranties
Where any prescribed terms apply, the liability of Q-CTRL 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, Q-CTRL's 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' mean 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 Q-CTRL, 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, Q-CTRL 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, Black Opal™, 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 Q-CTRL 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 Black Opal™ 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 Q-CTRL
Q-CTRL may terminate this agreement at any time without cause, and in such 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.
Q-CTRL 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) you become insolvent, go into liquidation or have a receiver or manager appointed over any of your assets or if you make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,
then Q-CTRL may take any or all of the following actions, at our sole discretion:
(d) terminate this agreement and your use of Black Opal™ and the Access Method;
(e) suspend for any definite or indefinite period of time, your use of Black Opal™ 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 Black Opal™ to you. No refunds will made in such 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 Black Opal™ and the Access Method.
Clauses 5 (other than 5.3), 6, 7, 10 and 11 survive the expiry or termination of this agreement.
8.5 Deletion of Data
Q-CTRL is 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
Q-CTRL 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 Black Opal™ 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 Black Opal™.
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 Q-CTRL 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 Black Opal™ 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-a-day, seven days-a-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 Q-CTRL or its contractors.
9.3 Data Sovereignty
Your Data will be hosted in the United States. Users will be able to connect to Black Opal™ 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 Q-CTRL's 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 Q-CTRL 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 Q-CTRL must be sent via the contact page located at https://q-ctrl.com/company/#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 Black Opal™.
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:
5. Intellectual Property except for "Backup of Data"
The following additional terms apply to free trial and non-paying users and if any conflict arises these additional terms will prevail:
(a) Q-CTRL may terminate your use of Black Opal™ at any time and for any reason;
(b) you agree that your Data has no commercial value and that Q-CTRL may delete your Data upon termination of your access to Black Opal™, and
(c) you will not be entitled to technical support, although Q-CTRL may elect to provide this at its sole discretion.