# Quantum Machines End User License Agreement for OpenQASM-QUA Compiler

PLEASE READ CAREFULLY THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE INSTALLING, ACCESSING, DOWNLOADING OR OTHERWISE USING THE SOLUTION (AS DEFINED BELOW) (“USER”, “YOU”) BY QM (AS DEFINED BELOW). BY INSTALLING, HAVING INSTALLED, CONTROLLING, ACCESSING, OR OTHERWISE USING THE SOLUTION IN ANY MANNER, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS EULA AND CONDITIONS HEREOF AND REPRESENTING THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND PERFORM HEREUNDER. YOU MAY NOT INSTALL, DEPLOY, CONTROL, ACCESS, OR USE THE SOLUTION IN ANY MANNER BEFORE YOU HAVE ACCEPTED THIS EULA. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION THAT REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. THIS EULA IS MADE BETWEEN YOU AND Q.M TECHNOLOGIES LTD. AND ITS AFFILIATES (AS DEFINED BELOW) (“QM”). WITH RESPECT TO THE SOLUTION YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOLUTION, FOR YOUR RELIANCE ON THE RESULTS OF THE USE OF THE SOLUTION AND RELATED SERVICES, AND FOR ANY USE OF THE SOLUTION NOT IN ACCORDANCE WITH THE EULA HEREOF OR AS CONTEMPLATED HEREUNDER.

THE PARTIES AGREE THAT UNLESS EXPRESSLY AND SPECIFICALLY AGREED TO IN WRITING BY QM, NO OTHER “CLICK THROUGH”, “CLICK WRAP”, TERMS AND CONDITIONS OR OTHER STANDARD TERMS (INCLUDING WITHOUT LIMITATION CUSTOMERS’ PURCHASE TERMS INCLUDING AS REFERENCED IN A  QUOTE, OR ORDER), SHALL HAVE ANY FORCE OR EFFECT WITH RESPECT TO THE SOLUTION, THE USE THEREOF AND QM’S RIGHTS, RESPONSIBILITIES AND LIABILITIES, AND IN THE EVENT OF CONFLICT BETWEEN THIS EULA AND THE PROVISIONS OF ANY SUCH OTHER INSTRUMENTS, THIS EULA SHALL PREVAIL.

## 1. DEFINITIONS

1.1 "**Affiliate**" means any entity which controls, is controlled, or is under common control with either of the parties. Any entity shall be deemed to "control" another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of another entity or other comparable equity with respect to an entity other than a company.

1.2 "**Documentation**" means the standard written materials regarding the Solution issued and generally provided by QM to its customers.

1.3 "**Third Party Components**" shall mean collectively any devices and products, whether hardware or software, which are (i) licensed by third parties and that are integrated into or with the Solution, or (ii) third-party equipment operated and/or used with the Solution, including any quantum computer equipment.

1.4 "**Software**" shall mean QM’s proprietary software components, provided with and/or incorporated into the Solution.

1.5 "**Solution**" shall mean QM’s proprietary dedicated Software, OpenQASM-QM Compiler, for the compilation of OpenQASM programs to QM’s pulse programming language, QUA™. The Solution specifically excludes QM’s proprietary OPX1000 products and any SW and HW in such products (or any other related products, either HW, or SW).

## 2. LICENSE RIGHTS; RESTRICTIONS

2.1 QM grants you, subject to full compliance with the EULA and conditions set forth, a non-exclusive, non-transferable, non-sublicensable, limited license to:

2.1.1 use, access, and operate the Solution as provided, installed, and configured by QM, solely for your internal or personal use and in any event not for any further commercialization or provision of the Solution or any parts thereof, to any third party, and solely for use with QM’s proprietary products previously purchased by you from QM and other Third Party Components, which are specifically allowed under the Documentation ("**Purpose**") all strictly in accordance with the technical instructions set forth in the Documentation; and

2.1.2 access, use, and make verbatim copies of the Documentation provided to you by QM, solely in connection with your internal or personal use of the Solution as permitted hereunder solely for the Purpose, and provided that all copyright notices are included and maintained therein.

2.2 **Use Restrictions**.

2.2.1 Unless otherwise expressly provided herein, you agree that you will not, nor will you allow any third party whether or not on your behalf to: (a) distribute, license, rent, lease, sublicense, loan, sell or otherwise allow any third party to access the Solution; (b) modify (except as specifically allowed by QM in the Documentation as part of your standard use of the Solution, and subject to Section 5 below), alter, copy, transfer, emulate or create any derivative works of the Solution or of any part thereof (including any of the Software components thereof); (c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code or designs from the Solution or any part thereof (including of any of the Software components thereof); (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Solution, any of its components and/or the Documentation; (e) bundle, integrate, or attempt to integrate with the Solution or with any component thereof, any third-party software, hardware or technology other than as expressly permitted in writing by QM (including through the Documentation); (f) use the Solution for any benchmarking or for competing development activities, (g) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Solution, except for your internal use or as expressly permitted by QM in writing; or (h) disable or otherwise circumvent any license management measures included in the Software and/or the Solution. You shall limit access to the Solution to your authorized employees, Affiliates, and personnel, and will administer account information and passwords accordingly, and will cause all such employees, Affiliates, and personnel to comply with this EULA.

2.2.2 Without derogating from the foregoing, you shall take all commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Solution. You shall be responsible and liable for any act or omission by anyone acting on your (or your Affiliates’) behalf or authorization, and/or anyone having obtained use of or access to the Solution from you (or your Affiliates), including without limitation your employees, representatives, personnel, or your Affiliates, and such Affiliates’ employees, representatives, and personnel ("**Representatives**"), as if performed by you.

2.3 Marks and Use of Name. This EULA does not grant you any rights to QM’s trademarks or service marks.

2.4 **Third Party Software**. IN ACCEPTING THIS EULA, YOU CONFIRM AND ACKNOWLEDGE THE UTILIZATION OF THIRD-PARTY COMPONENTS, IN THE SOLUTION, OR THE USE OF THE SOLUTION WITH CERTAIN THIRD PARTY COMPONENTS ALLOWED TO UNDER THE DOCUMENTATION AND ACKNOWLEDGE THAT SUCH THIRD-PARTY COMPONENTS ARE BEING INSTALLED WITH YOUR CONSENT. THIRD PARTY COMPONENTS ARE UTILIZED ON AN "AS-IS" BASIS WITHOUT ANY WARRANTY WHATSOEVER AND QM HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY SUCH THIRD PARTY COMPONENTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

2.5 **Export Restrictions**. You acknowledge that the Solution may be subject to applicable export jurisdiction and any other applicable laws and regulations concerning the transfer of the Solution or any part thereof across international borders. You will comply with all applicable national and international laws that apply to your use of the Solution, including the United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions that may be issued by the United States and other governments from time to time.

## 3. SUPPORT; DISCLAIMERS

3.1 Alpha Version. You acknowledge that the Solution including all components thereof, is an Alpha/Beta version that is still under development, and as such (i) is not at the level of performance or compatibility of final, generally available products; (ii) may not operate correctly, (iii) may be further developed or modified; (iv) may not be made for general release, and (v) should not be used in a commercial production environment.

3.2 THE SOLUTION, IS PROVIDED BY QM "AS-IS" AND QM MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, REGARDING THE SOLUTION, ARISING FROM THE COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INTERFERENCE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS EULA IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY CONTAINED IN THIS EULA.

## 4. FEES.

4.1 If you are a paying customer, you shall pay QM the fees described in the Quote added with any applicable VAT or sales taxes (as applicable). Payment shall be due as described in the Quote and made in United States Dollars by wire transfer to QM’s designated bank account. All fees shall be non-cancellable, and the sums paid non-refundable. If you are a paying customer, you are responsible for payment of any taxes resulting from the possession and use of the Solution, except for payment of any taxes based on or related to QM’s income.

## 5. PROPRIETARY RIGHTS*

5.1 You agree and acknowledge that QM is and shall remain the sole and exclusive owner of any and all Intellectual Property rights in or to the Solution, including any Feedback provided by you or generated by QM, and any part thereof, including any modifications, enhancements, improvements, updates and upgrades, and derivative works thereof including if originates, learned or derived from the use of the Solution or any part thereof by you or by any Representatives or from the information you or any Representatives provide to QM in connection with the Solution.

5.2 "**Feedback**" shall mean any feedback, including any code, documentation, or any original work of authorship, including any modifications or additions to an existing work, made by you as part of your use of the Solution.

5.3 "**Intellectual Property**" shall mean all inventions, ideas, concepts, analyses, (whether patented, or patentable, or not), methods, methodologies, designs, processes, patents, patent applications, rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights, any information, ancillary materials, devices, results, know-how, and all rights relating to the protection of trade secrets and confidential information; design rights and industrial property rights; mask works, software, all code including source code, object code, firmware; and any other proprietary rights relating to intangible property. Other than as explicitly stated hereunder, no right or license, express or implied, in or to the Intellectual Property of QM, is granted to you or any Representative under this EULA.

## 6. LIMITATION OF LIABILITY. 
IN NO EVENT WILL QM, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDER, AND EMPLOYEES’ ("QM’S PARTIES") AGGREGATE LIABILITY TO YOU, EXCEED THE AMOUNTS PAID BY YOU TO QM IN RESPECT OF THE SOLUTION. IN NO EVENT WILL QM OR QM PARTIES, HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION ARISING FROM THE INSTALLATION, OPERATION, USE OF OR INABILITY TO USE THE SOLUTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS EULA MAY BE BROUGHT AGAINST QM MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THIS EULA.

## 7. TERM AND TERMINATION. 
You will have the rights set forth herein for the duration set forth by QM at its discretion (unless otherwise agreed between QM and you under an applicable written agreement) and only for so long as you comply with this EULA. This EULA and all rights and licenses granted hereunder shall automatically terminate if you breach the EULA hereof and such breach is not cured within fourteen (14) days of written notice of such breach. Sections 1, 2.2, 2.3, 2.4, 2.5, 5, 6, 7, and 8, will survive any termination or expiration of This EULA.

## 8. GENERAL

8.1 **Severability**. In the event any provision or part of This EULA is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal, and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.

8.2 **Waiver**. No waiver of any breach of This EULA will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

8.3 **Entire Agreement; Updates**. This EULA is in addition to QM’s Terms of Sale and End User License Agreement that related to QM’s proprietary products and services, including without limitation QM’s proprietary Quantum Orchestration™ Platform and applies only with respect to the subject matter hereof between you and QM – i.e., the use of the QM OpenQASM-QM Compiler, any other EULA not specifically changed and/or modified by this EULA, shall be as set forth in QM’s Terms of Sale and End User License Agreement.

8.4 **Governing Law**. The validity, interpretation, and performance of this EULA shall be controlled by and construed under the laws of the State of Israel as if performed wholly within Israel and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts of Tel Aviv.
