COPYRIGHT 2023 D-WAVE SYSTEMS INC. (“D-WAVE”) All Rights Reserved.
End-User License Agreement (“EULA”)
This software (the “Software”) is licensed as follows:
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.
LICENSE. 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 for Licensee’s internal product development purposes. Licensee may 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.
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.
NO SUPPORT. D-Wave is not obligated to provide any technical or other support for the Software to Licensee.
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”). Licensee’s use of such Third Party Software is governed by such the acknowledgements, licensing terms and disclaimers associated with such Third Party Software. 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.
NO WARRANTY. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE MAY INCLUDE THIRD PARTY COMPONENTS NO LONGER AVAILABLE OR DEPRECATED THAT MAY BE INCOMPATIBLE WITH THE SOFTWARE. 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.
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.
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.
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.
TERMINATION. This EULA is effective from the date on which the 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. 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, and all copies thereof, or at the request of D-Wave, destroy the Software, and all copies thereof, and deliver to D-Wave certification that Licensee has complied with these termination obligations. 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.
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.