COPYRIGHT 2017 D-WAVE SYSTEMS INC. All Rights Reserved.
D-WAVE SYSTEMS INC. (“D-WAVE”) END-USER LICENSE AGREEMENT (“EULA”)
The software subject to this EULA is/are known as “dwave_system_tuning”.
IMPORTANT - READ CAREFULLY BEFORE COPYING, INSTALLING OR OTHERWISE USING: THIS EULA IS A LEGAL BINDING CONTRACT BETWEEN YOU AND D-WAVE. DO NOT COPY, INSTALL, OR USE THIS SOFTWARE UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS EULA AND YOU AGREE THAT THIS EULA IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS EULA IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED, FOR EXAMPLE, YOUR EMPLOYER. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THIS SOFTWARE.
IF YOU OR THE LEGAL ENTITY ON WHOSE BEHALF THE SOFTWARE WAS OBTAINED HAVE A SEPARATE CONTRACT WITH D-WAVE (“ALTERNATE CONTRACT”), ADDITIONAL OR DIFFERENT TERMS MAY APPLY TO YOUR USE OF THIS SOFTWARE. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS EULA AND THE ALTERNATE CONTRACT, THE TERMS OF THE ALTERNATE CONTRACT APPLY.
US GOVERNMENT USERS: The Software and related documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Government end users acquire the Software and related documentation with only those rights set forth in the EULA. Use of either the Software or the related documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
D-WAVE AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY IN THIS SOFTWARE. D-WAVE PERMITS YOU TO COPY, INSTALL, USE AND DISTRIBUTE THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS EULA. USE OF SOME THIRD PARTY MATERIALS ASSOCIATED WITH THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT OR A “READ ME” OR “LICENCE.TXT” FILE PROVIDED IN ASSOCIATION WITH SUCH MATERIALS.
BY INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU (THE “LICENSEE”) AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
This EULA applies to the evaluation of the attached software product by Licensee during the evaluation period, which is without charge.
In this EULA, “Software” means (a) the object and/or source code version of the computer programs identified above as being subject to this EULA; (b) the object and/or source code version of any computer program related to the software of clause (a); (c) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media with which this EULA is provided; (d) related explanatory written materials, user manuals, electronic files and other documentation accompanying or published for such program or files (“Documentation”); (e) upgrades, updates, additions to, and copies of the foregoing, if any, provided to you by D-WAVE or an authorized licensee, for example, downloaded software updates (collectively, “Updates”); and (f) any copies of the foregoing.
“D-WAVE” means D-Wave Systems Inc., a Canadian corporation, 3033 Beta Avenue, Burnaby, British Columbia, Canada.
a. In order to use the Software, Licensee must first agree to this EULA. Licensee may not use the Software if Licensee does not accept this EULA.
b. If Licensee is agreeing to be bound by this EULA on behalf of Licensee’s employer or other entity, Licensee represents and warrants that Licensee has full legal authority to bind Licensee’s employer or such entity to this EULA. If Licensee does not have the requisite authority, Licensee may not accept the EULA or use the Software on behalf of Licensee’s employer or other entity.
c. Licensee can accept this EULA by: i. clicking to accept or agree to the EULA before downloading the Software where this option is made available to Licensee; or ii. using the Software. d. Upon Licensee’s agreement to be bound by the terms of this EULA and subject to the terms of this EULA and Licensee’s compliance with same, D-WAVE grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable copyright license to use the Software solely to develop applications to run on or with D-WAVE’s product(s) for (i) non-commercial use, or (ii) Licensee’s internal product development purposes.
e. No Support. D-WAVE is not obligated to provide any technical or other support for the Software to Licensee.
f. Fees. D-WAVE may choose in the future to charge for use of the Software. If D-WAVE in its sole discretion chooses to establish fees and payment terms for such use, D-WAVE will provide notice of such terms as provided in Section 12 below, and Licensee may elect to stop using the Software rather than incurring fees.
USE RESTRICTIONS. At all times during the term of this EULA:
a. Permitted Users. Licensee may: (i) if an individual, himself or herself use the Software as permitted by this EULA; or (ii) if a corporation or other entity, allow only its then current employees to use the Software as permitted by this EULA; but may not allow any other persons to use the Software.
b. Permitted Computers. Licensee may install the Software and make the Software available for use only on computers owned or leased by Licensee which are located at the premises of Licensee. Licensee may make one backup copy of the Software, provided that the backup copy is not installed or used on any computer. Any copy of the Software made by Licensee must contain the same copyright and other proprietary notices that appear on or in the Software and may not be provided to any other person.
c. Other Restrictions. Except to the extent required by applicable third party licenses, Licensee may not:
i. use the Software except in accordance with this EULA; ii. copy, modify, adapt, translate or create any derivative works of or based upon the Software; iii. decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive the source code for the Software; iv. load any part of the Software onto a mobile handset or any other hardware device except a personal computer, combine any part of the Software with other software, or distribute any software or device incorporating a part of the Software; v. distribute, sell, rent, lease, sublicense, assign or otherwise transfer this EULA or its rights to the Software; or vi. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Software.
d. Use, reproduction and distribution of components of the Software licensed under a third party license are governed solely by the terms of that third party license and not this EULA.
e. Compliance with Laws. Licensee will comply with all export laws and regulations of Canada, the United States, or any other government having jurisdiction and agrees that it will not export or re-export the Software in violation of any such laws or regulations. Licensee will also comply with all applicable laws and regulations with respect to the import into any country or the use in any country of the Software. Licensee agrees to use the Software and write applications only for purposes that are permitted by this EULA and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from Canada, the United States or other relevant countries). In addition, if the Software is identified as export controlled items under any applicable law, Licensee represents and warrants that it is not a citizen of, or otherwise located within, a nation sanctioned or embargoed by Canada, the United Nations, or the United States (including without limitation Belarus, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Egypt, Eritrea, Iran, Iraq, Lebanon, Liberia, Libya, Myanmar (Burma), North Korea, Sierra Leone, Somalia, Sudan, Syria, Tunisia, and Zimbabwe) and that it is not otherwise prohibited by law from receiving the Software. Licensee agrees not to use the Software for any military or defense-related purpose.
f. Licensee acknowledges and agrees that the form and nature of the Software that D-WAVE provides may change without prior notice to Licensee and that future versions of the Software may be incompatible with applications developed on previous versions of the Software. Licensee acknowledges and agrees that D-WAVE may stop (permanently or temporarily) providing the Software (or any features within the Software) to Licensee or to users generally at D-WAVE’s sole discretion, without prior notice to Licensee.
3. CONSENT TO USE OF DATA AND USER SUBMISSIONS. Licensee agrees that D-WAVE and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about Licensee’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Updates, product support and other services to Licensee (if any) related to the Software, and to verify compliance with the terms of this EULA. D-WAVE may use this information in compliance with applicable privacy laws to provide and improve D-WAVE’s products and services or distribute the information to D-WAVE’s partners and third party developers to improve their software, hardware and services designed for use with D-WAVE products. Licensee agrees that any material, information or other communication, including all data, images, sounds, text, computer code in source or object form, and other things embodied therein, Licensee transmits or posts to any D-WAVE website or provides to D-WAVE under this EULA or through Licensee’s use of the Software will be deemed non-confidential (“Communications”). D-WAVE shall have no confidentiality obligations with respect to the Communications. Licensee agrees that D-WAVE will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the Communications, including derivative works thereto, for any and all commercial or non-commercial purposes.
4. OWNERSHIP. Except for the limited license rights expressly granted to Licensee hereunder, D-WAVE and its suppliers retain all right, title and interest in the Software (including any copies that Licensee makes in accordance with this EULA), including any rights under the patent, trademark, copyright, trade secrets and other intellectual property laws, and this EULA does not grant to Licensee any intellectual property rights in the Software. D-WAVE reserves all rights not expressly granted to Licensee in this EULA. The structure, organization and code underlying the Software are the valuable rights of D-WAVE and its suppliers. Licensee agrees that Licensee will not take any action to jeopardize, limit or interfere in any manner with such ownership by D-WAVE and its suppliers.
5. THIRD PARTY SOFTWARE APPLICATIONS AND DATA SERVICES. Portions of the Software may utilize or include third party software and other copyrighted material (“Third Party Software”). Acknowledgements, licensing terms and disclaimers for such Third Party Software are contained in the Documentation, and Licensee’s use of such Third Party Software is governed by such acknowledgements, licensing terms and disclaimers. The Software may interoperate with and allow Licensee to use software applications, information and data not developed or offered by D-WAVE (“Third Party Information”). Licensee’s use of any Third Party Software or Third Party Information is governed by the terms and conditions made available to Licensee by the party from whom Licensee obtained such information. Neither Third Party Software nor Third Party Information is the responsibility of D-WAVE, and LICENSEE’S USE OF THIRD PARTY SOFTWARE OR THIRD PARTY INFORMATION IS AT LICENSEE’S OWN RISK. D-WAVE MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THIRD PARTY SOFTWARE OR THIRD PARTY INFORMATION.
6. NO WARRANTY. THE SOFTWARE IS MADE AVAILABLE TO THE LICENSEE ON AN “AS-IS” BASIS AND WITH ALL FAULTS. D-WAVE MAKES NO WARRANTY OR REPRESENTATION AS TO THE USE OR PERFORMANCE OF THE SOFTWARE OF ANY KIND. EXCEPT TO THE EXTENT TO WHICH THE SAME MAY NOT BE EXCLUDED AND/OR LIMITED UNDER APPLICABLE LAW, D-WAVE DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING OF THIRD PARTY RIGHTS, AND DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE), WITH RESPECT TO THE SOFTWARE, ITS USE, PERFORMANCE OR APPLICATION, OR ANY INFORMATION PROVIDED REGARDING THE SOFTWARE. D-WAVE PROVIDES NO TECHNICAL SUPPORT OR REMEDIES FOR THE SOFTWARE.
7. LIMITATION OF LIABILITY. D-WAVE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE POSSESSION OF, USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM OR LIABILITY IS BASED UPON ANY CONTRACT, TORT, BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY AND NOTWITHSTANDING THAT ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE MAXIMUM LIABILITY OF D-WAVE TO LICENSEE SHALL IN ANY EVENT NOT EXCEED THE LESSER OF (A) THE SUM OF THE LICENSE FEE PAID BY LICENSEE FOR THE SOFTWARE; OR (B) CAD$250. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND PARAGRAPHS 3 AND 4 WILL NOT APPLY ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES LIABILITY NOTWITHSTANDING THE LIMITATIONS OR EXCLUSIONS THEREIN.
8. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS NOT DESIGNED, INTENDED, AUTHORIZED OR SUITABLE FOR USE IN ANY TYPE OF SYSTEM, APPLICATION, SITUATION OR ENVIRONMENT WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, MEDICAL SYSTEMS OR WEAPONS SYSTEMS AND THAT LICENSEE WILL NOT USE THE SOFTWARE IN SUCH SYSTEM, APPLICATION, SITUATION OR ENVIRONMENT.
9. INDEMNIFICATION. To the maximum extent permitted by law, Licensee agrees to defend, indemnify and hold harmless D-WAVE, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Licensee’s use of the Software, (b) any application Licensee develops using the Software that infringes or violates any right of any person or defames any person, and (c) any non-compliance by Licensee with this EULA.
a. This EULA is effective from the date on which the attached Software is installed or used by Licensee until terminated. This EULA will terminate automatically without notice from D-WAVE if Licensee fails to comply with any provision of this EULA or if D-WAVE is required to do so by law. If Licensee commences or participates in any legal proceeding against D-WAVE, then D-WAVE may, in its sole discretion, suspend or terminate this EULA during the pendency of such legal proceedings. Licensee may voluntarily terminate this EULA at any time by ceasing to use the Software.
b. Upon termination of this EULA at any time and for any reason, Licensee will immediately discontinue any and all use of the Software, purge the Software from all computer systems, storage media and other files, including any back-up copy, and return to D-WAVE the Software, including the Documentation, and all copies thereof, or at the request of D-WAVE, destroy the Software, the Documentation, and all copies thereof, and deliver to D-WAVE certification that Licensee has complied with these termination obligations.
c. If this EULA is terminated at any time and for any reason, Licensee will not be entitled to compensation of any kind, financial or otherwise.
d. Paragraphs 3 through 9, 13(a) and 13(f) of this EULA and such other provisions as may reasonably be expected to remain in force will survive the termination of this EULA and will remain in full force and effect following such termination.
11. NO WAIVERS. A waiver expressed or implied by a party of any default of the other party in the observance or performance of this EULA must be in writing, and such waiver does not constitute and is not to be construed as a waiver or condonation of any subsequent or other default, and a waiver of any provision of this EULA will not be effective unless in writing and signed by an authorized officer of D-WAVE.
12. MODIFICATIONS AND NOTICES. No reseller, distributor or dealer of the Software is authorized to make any modifications, extensions, or additions to this EULA. D-WAVE may, in its sole discretion, modify this EULA. If D-WAVE elects to do so, D-WAVE will notify Licensee of such change. If Licensee does not agree to the change, then this EULA automatically terminates and Licensee must stop using the Software and comply with Section 10(b) of this EULA. If Licensee does not stop using the Software, then Licensee’s use of the Software will continue under the changed EULA. D-WAVE may give notices to Licensee, at D-WAVE’s option, by posting on any portion of www.dwavesys.com or by electronic mail to any e-mail address provided by Licensee to D-WAVE.
GOVERNING LAW AND GENERAL PROVISIONS.
a. Governing Law and Other General Provisions. This EULA will be governed by and construed in accordance with the substantive laws in force in the Province of British Columbia, Canada, excluding its conflict of law rules. The courts of the Province of British Columbia shall have exclusive jurisdiction over all disputes relating to this EULA. Licensee and D-WAVE agree to submit to the exclusive jurisdiction of the courts of British Columbia. This EULA will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Time. Time is of the essence of this EULA.
c. Severance. If any provision in this EULA should be held invalid or unenforceable, such provision shall be modified to the extent necessary to render it valid or enforceable or severed from this EULA if no such modification is possible, and the other provisions of this EULA shall remain in full force and effect.
d. Assignment. Licensee may not assign its rights or delegate its obligations under this EULA without the prior written consent of D-WAVE, which consent may be withheld in the sole discretion of D- WAVE. D-WAVE may assign its rights or delegate its obligations under this EULA to any person in its sole discretion. This EULA shall be binding on and inure to the benefit of the parties and their successors and permitted assigns.
e. No Other EULAs. This EULA is the entire agreement of the parties with respect to the Software, and there are no other agreements, written, oral, electronic or otherwise, with respect to the Software, and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
f. Compliance with Licenses. If Licensee is a business or organization, Licensee agrees that upon request from D-WAVE or D-WAVE’s authorized representative, Licensee will within thirty (30) days fully document and certify that use of any and all Software at the time of the request is in conformity with Licensee’s valid licenses from D-WAVE.
g. English Language. Licensee and D-WAVE confirm that it is their wish that this EULA, as well as other documents relating hereto, including notices, have been and shall be written in English only. Licensee et D-WAVE confirment leur desir que cet accord ainsi que tous les documents, y compris tous avis qui s’y rattachent, soient rediges en anglais.
Updated January 4, 2017