Preamble

Data cybernetics ssc GmbH (“cybernetics”) has developed a SaaS Suite for Quantum Computing Services of called Q-Alchemy (“Q-Alchemy”) that enables researchers to encode their approximated quantum state so that the end-to-end error of the computation can be minimized. The service of cybernetics is to provide the Q-Alchemy (the “Service”) and is aimed at customers who are working in research for entrepreneurs or universities (the “Customer”).

These General Terms and Conditions (“GTC”) govern the contractual relationship between the Customer and cybernetics (the “Contract”).

1.           Scope

1.1          The conclusion of the Contract as well as the use of the Service are exclusively subject to these GTC, as amended, unless otherwise agreed in writing between the parties. Conflicting, deviating or supplementary terms and conditions of the Customer do not apply, unless cybernetics explicitly accepts these in writing on a case-by-case basis. The GTC also apply in the event that cybernetics performs the Service whilst being aware of conflicting or deviating terms and conditions of the Customer.

1.2          The Service is aimed exclusively at entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”). The Customer hereby confirms that the Customer will not use the Service as a consumer, i.e., not for purposes that are predominantly outside the Customer’s trade, business or profession.

1.3          cybernetics reserves the right to change and adapt these GTC at any time if new regulatory requirements arise due to the continuous technical development of the Service. In the event of an already existing contractual relationship with the Customer, the amended GTC will be sent to the Customer by e-mail at least one (1) month before its entry into force. The amended GTC shall be deemed approved by the Customer unless he/she objects in writing within three (3) weeks.

2.           Subject matter of the contract and Conclusion of the Contract

2.1          Subject matter of this Contract is the provision of the Service by cybernetics as described on the website of cybernetics (available under www.data-cybernetics.com, www.q-alchemy.com & www.q-ram.com) or in these GTC.

2.2          The Customer and cybernetics conclude a contract when the Customer registers on the cybernetics website and cybernetics confirms the registration. With registration, the Customer is required to enter their e-mail-address, and a password to create a user account.

2.3          Only the Customer (respectively the Customer’s employees) with whom the respective Contract exists, can use the Service. The Customer is prohibited from transferring the user account to any third parties or letting any third parties use its user account.

3.          Service

3.1          cybernetics offers various Service versions between which the Customer can choose after registration.

3.2          The Customer can select between a free version or paid versions. The Service include in particular the following three standard versions:

(a)            the Customer gains access to the Service on a free-of-charge basis (“Free Version”);

(b)           if the Customer wishes to use the Service for larger calculations, cybernetics provides a monthly subscription on a monthly fee (“Subscription Version”); or

(c)            if the Customer wishes to use the Service for larger calculation on an individual request basis, cybernetics provides the Service on a fee per use version (“Per Use Version”).

4.           Availability, Maintenance and Disruption

4.1          cybernetics provides an availability of the Service of at least 98% per year (calculated on a 365/24/7 basis) ("Availability"). Excluded from the Availability is (i) planned downtime for scheduled maintenance and technical improvement of the Service ("Maintenance Time"), (ii) any downtime caused by a third party beyond cybernetics' reasonable control (i.e. infrastructure provider as for example Google, AWS and Microsoft), (iii) any downtime due to operational disruption caused by an event of force majeure beyond cybernetics' reasonable control which could not be averted with commercially reasonable efforts, including acts of god, flood, fire, earthquakes and acts of terror and (iv) any downtime caused by modifications to the Service made by cybernetics. cybernetics will try to perform the Maintenance Time outside the regular working hours at cybernetics, i.e., between 22:00 and 05:00 (Central European Time/GMT).

4.2          cybernetics can only provide the Service as it exists to the limits of the current state of the art.

4.3          cybernetics points out that limitations or impairments of the Service may occur that are beyond the control of cybernetics. This includes, in particular, actions of third parties not acting on behalf of cybernetics, technical conditions beyond cybernetics’ control, and force majeure. The technical infrastructure used by the Customer (e.g., the internet connection) may also have an influence on the Service provided by cybernetics. Insofar as such circumstances have an influence on the availability or functionality of the Service, this shall have no effect on the contractual conformity of the Service provided.

5.           Customer’s Rights of Use

5.1          The Service and all information contained therein are the intellectual property of cybernetics except for the data supplied by the Customer. cybernetics grants the Customer a revocable, non-exclusive, non-transferable and non-sublicensable right to use the respective Service for its own business purposes in connection with the subject matter of the Contract. This right of use is limited in time to the term of the Contract and refers exclusively to the current status and scope of the Service provided during the term. The Customer shall not be granted any further rights beyond those set out above, e.g. to the operating software on which the respective Service are based. The Customer shall only use the Service for its own business purposes and only by its own employees.

5.2          Where cybernetics provides updates, upgrades and new versions during the term of the Contract, the right of use set forth in Section 5.1 shall apply to these in the same manner. cybernetics shall not be obliged to provide updates, upgrades or new versions of the Service unless this is required to remedy defects or otherwise agreed in writing elsewhere in these GTC.

5.3          The use of the Service by the Customer is only permitted within the scope described under Sections 5.1 and 5.2. In particular, the Customer is prohibited to reproduce, edit, decompile the software on which the Service is based in object or source code or make it readable or usable in any other way, make the software publicly accessible, to lease the software, to transfer it to third parties in any other way, to exploit it or use it or let it be used for the purposes of third parties without permission. Sections 69d and 69e German Act on Copyrights and related Rights (Urheberrechtsgesetz, "UrhG") remain unaffected by this provision.

5.4          cybernetics grants the right of use in the scope according to the selected Service version by the Customer (see Section 3.2).

5.5          cybernetics reserves the right to claim damages in the event that the Customer negligently enables unauthorized third parties to use the respective Service belonging to cybernetics. In the event of unauthorized transfer of use to third parties, the Customer shall provide to cybernetics without undue delay upon request of all information required to assert claims against such third party.

6.           Customer’s Obligations

6.1          The Customer is solely responsible for the provision of required interfaces and technical conditions for the use of the Service as well as for the selection of user settings in order to enable trouble-free use of the Service. cybernetics is not obliged to verify whether the Customer meets the technical requirements for the use of the Service.

6.2          The Customer shall ensure that the data supplied by the Customer to the Service is collected lawfully and stored securely. In particular, the Customer is – as controller – responsible for ensuring that the required consent (if applicable) of the data subject has been obtained.

6.3          The Customer shall, within its area of organisation and responsibility, ensure appropriate and state-of-the-art measures in the interests of data and information security, particularly regular data backups, the necessary security precautions in respect of its connection (e.g. firewalls, use of software suitable for access via the internet that guarantees secure data transmission).

6.4          The Customer shall not use the Service or have them used in an illegal or abusive manner, in particular not for processing transactions concerning items that violate statutory provisions. Customers with demonstrably improper business practices are also excluded from using the Service.

6.5          The Customer shall indemnify cybernetics against all actual and alleged third-party claims, including the costs of legal enforcement/prosecution, based on acts or omissions by the Customer, in particular claims based on unlawful or abusive use of the Service or non-compliance with applicable provisions or infringement of third-party rights by the Customer or with its endorsement.

6.6          cybernetics shall be entitled to a compensation for any additional costs incurred by the Customer if such costs are a result of the Customer’s failure to meet its obligations or failure to meet them in due time, in full or in a proper manner.

7.           Breach of Obligation

7.1          cybernetics may block the Customer's access to the Service at any time if (i) the Customer breaches its contractual obligations - in particular those arising from Section 6, (ii) there is a risk of damage to or impairment of the data or service of cybernetics or the systems or data of another Customer of cybernetics, or there is a risk of damage to the general public, or (iii) circumstances exist that entitle cybernetics to terminate the Contract without notice. The blocking is also possible if the Customer is in default of payment.

7.2          If the blocking of the Customer's access to the Service is based on a breach of the Contract by the Customer, access will only be restored when the breach has been permanently eliminated or the risk of repetition has been excluded by a cease-and-desist declaration with a penalty clause. cybernetics is not obliged to provide access again if this is unreasonable for cybernetics, e.g. if the reason for the blocking entitles cybernetics to terminate the Contract without notice.

7.3          A blocking of the Customer's access to the Service based on a breach of Contract by the Customer does not entitle the Customer to suspend payments or to assert claims for damages against cybernetics.

8.          Remuneration

8.1          Depending on the respective Service version, cybernetics offers the Customer either the Free Version, the Subscription Version or the Per-Use-Version. Details of the respective scope of performance and the respective price structure is described on website of cybernetics (available under www.q-alchemy.com).

8.2          Depending on the selected Service version, the Customer shall pay a fixed fee for the monthly subscription (the “Fixed Fee”) or a variable fee (the “Variable Fee”) for the Service.

8.3          Unless otherwise agreed in writing or expressly provided in these GTCs, the Fixed Fee shall be paid monthly at the first of each month.

8.4          The Variable Fee depends on the requests made by the Customer and is calculated on a monthly basis. The Variable Fee shall be paid at the first of the month following the month of usage.

8.5          The Customer shall pay via credit card.

8.6          In the event of payment default, cybernetics may suspend the provision of Service until payment is made.

9.           Default in Performance, Force Majeure

9.1          cybernetics shall be released from its obligation to perform if the non-performance is due to circumstances of force majeure or other unforeseen circumstances for which cybernetics is not responsible (e.g. war, strike, natural disasters, water intrusion, pandemics, system failures on the internet or sabotage by malware). The default of performance shall also apply in the event of delays due to circumstances in the Customer's area of responsibility, e.g. non-timely performance of Customer obligations or lack of availability of customer-side IT facilities with associated interfaces.

9.2          The release from the obligation to perform shall apply for the duration of the impediment plus a reasonable start-up period. If the impediment lasts longer than two (2) months, both parties shall be entitled to terminate the Contract with regard to the affected service after expiry of a reasonable grace period. The Customer shall not be entitled to claim for damages or reimbursement of expenses against cybernetics in such cases.

9.3          The parties shall inform each other of the occurrence of a case of force majeure or other circumstances referred to in this Section 9 immediately upon becoming aware thereof.

10.       Liability

10.1       cybernetics shall be liable to the Customer in all cases of contractual and non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions.

10.2       In other cases, cybernetics shall be liable - unless otherwise provided for in Section 10.3- only in the event of a breach of a contractual obligation, the fulfilment of which enables the proper performance of the Contract in the first place (Kardinalspflichten) and on the compliance with which the Customer may regularly rely. The liability is limited to the compensation of the foreseeable and typical damage.

10.3       The liability of cybernetics for damages arising from injury to life, body or health, according to statutory regulations and to the extent of a warranty assumed by cybernetics shall remain unaffected by the above limitations and exclusions of liability.

10.4       Any liability of cybernetics for damages of the Customer resulting from loss of data is excluded to the extent that the damage is based on the Customer's failure to regularly and properly perform data backups within the Customer's area of responsibility and to thereby ensure that lost data can be restored with reasonable effort.

10.5       Claims for damages shall become statute-barred within one (1) year after the Customer's knowledge or grossly negligent lack of knowledge of the circumstances giving rise to the claim, but no later than one (1) year after the end of the year in which the claim arose. This does not apply in the case of intent, gross negligence, damages arising from injury to life, body or health, or claims according to statutory regulations.

10.6       As far as the liability of cybernetics is excluded or limited according to the Contract and/or these GTC, this shall also apply to the personal liability of legal representatives and organs of cybernetics, its employees and its vicarious agents.

10.7       Any further liability of cybernetics is excluded on the merits.

11.       Warranty

11.1       The Customer is obliged to report defects (e.g., functional failures, malfunctions or impairments of the Service) to cybernetics without undue delay and as precisely as possible in text form to the support email address qalchemy-support@data-cybernetics.com. Furthermore, the Customer is obliged to support cybernetics to a reasonable extent in the analysis and elimination of defects and grants without undue delay access to documents from which more detailed circumstances regarding the occurrence of the defect arise. The Customer is obliged to bear any additional costs resulting from inaccurate or incomplete information on its part or resulting from delays in the analysis or elimination of defects for which he is responsible.

11.2       In case of update, upgrade and new version provided by cybernetics, the warranty claims shall be limited to the new features of these update, upgrade and new version compared to the previous version.

11.3       If the Customer wrongfully notifies the existence of a defect for reasons for which cybernetics is not responsible, cybernetics shall have a claim against the Customer for the expenses incurred by the Customer in analysing and remedying the defect.

11.4       Warranty claims are excluded if the Customer itself or a third party (i) modifies functionalities of the Service without prior authorisation by cybernetics or (ii) does not use the Service in the intended way or in an operating environment other than the intended one, including operating errors by the Customer, non-observance of use instructions or use of incorrect or missing processing data. This shall not apply if the Customer proves that any defects occurring are unrelated to such circumstances. If the analysis regarding defects is considerably impeded by such circumstances, the Customer shall bear any additional costs incurring.

11.5       In the event of defects for which cybernetics is responsible, statutory provisions shall in principle apply, especially sections 536b and section 536c of the German Civil Code (Bürgerliches Gesetzbuch, "BGB"). The application of section 536a para. 1 BGB is excluded insofar as the provision contains strict liability.

11.6       In the event of an insignificant reduction in the value and/or the suitability of the Service, the Customer shall not be entitled to any warranty claims.

12.       Term and Termination

12.1       If the Customer uses the Free Version, the Contract has an unlimited term and can be terminated at any time by the Customer. cybernetics can terminate the Contract with a one (1) month notice.

12.2       If the Customer selects the Subscription Version, the Contract has a minimum term of twelve (12) months and automatically renews for a further twelve (12) months unless terminated by either party with three (3) months' notice to the end of the relevant term.

12.3       Cybernetics can terminate the Contract with a three (3) months’ notice if the Customer objects to the amendment of these GTC according to Section 1.3.

12.4       The right to terminate for cause at any time without notice shall remain unaffected for either Party. Good cause shall be deemed to exist in particular, but not limited to, if (i) the other party persistently breaches material contractual obligations under this Contract and fails to remedy the breach within a reasonable period of time despite a warning, or (ii) if the other party suffers a material deterioration or threat to its assets or is in bankruptcy or liquidation (other than for the purpose of a solvent restructuring or merger).

12.5       The notice shall be in text form.

13.       Data Protection

13.1       Both parties undertake to comply with all the applicable statutory data protection provisions. By means of the Service, cybernetics provides technical conditions for data processing to the Customer. To the extent that the Customer enters personal data ("Customer Data") within the scope of Service's use, the Customer shall bear the exclusive responsibility for the data protection law compliance of the collection and processing of the Customer data. The Customer shall indemnify cybernetics against all actual and alleged third-party claims, including the costs of legal prosecution/defence, based on infringements of applicable statutory data protection provisions with respect to Customer data for which the Customer is responsible.

13.2       Further information on data protection can be found in the privacy policy of cybernetics www.data-cybernetics.com/privacy, as amended.

13.3       Cybernetics shall be entitled to anonymise or aggregate the data obtained from the Customer in way of using the Service so that it is no longer possible to identify individual data subjects, and to use it in this form for, amongst other things, the optimisation of the Service and their functions as well as for reporting and benchmarking, and transmitting it, where necessary, to third parties. The parties agree that anonymised and/or, as provided above, aggregated data will be deemed to no longer constitute Customer Data.

13.4       Cybernetics processes personal data on behalf of the Customer when using the Service. Therefore, the conclusion of a separate data processing agreement is required. The Parties acknowledge that the Customer is the controller of all personal data that is uploaded by the Customer and that the Customer may correct or delete such data if necessary. As cybernetics processes the data on behalf of and only on the instructions of the Customer, cybernetics is at all times a processor. As an annex to these GTC, the Parties enter into a Data Processing Agreement ("Data Processing Agreement"), which can be contractually entered by requesting this from the support at support@data-cybernetics.com.

14.       Miscellaneous

14.1       The transfer of the Contract or individual rights or obligations thereunder by the Customer to third parties requires the prior written consent of cybernetics. Section 354a HGB remains unaffected.

14.2       Offsetting (Aufrechnung) by the Customer is only permitted with an undisputed or legally established claim of cybernetics. The same applies to the assertion of rights of retention (Zurückbehaltungsrecht), whereupon the counterclaim has to be based on the same contractual relationship.

14.3       The place of contractual performance shall be Augsburg, Germany.

14.4       The performance and legal relationships between the parties shall be governed exclusively by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

14.5       The exclusive place of jurisdiction for all disputes arising from and in connection with the Contract shall be Augsburg, Germany.

14.6       Unless expressly provided otherwise in these GTC, all declarations and notifications within the scope of the contractual relationship and the business relationship with the Customer have to be made in written or electronic form. Amendments or supplements to the Contract existing between the parties have to be made in written form.

14.7       In case individual provisions of the Contract be or become invalid or unenforceable, this shall not affect the validity of the remaining contractual provisions. The parties shall endeavour to replace the invalid or unenforceable provision by a valid and enforceable provision that comes as close as possible in economic terms to the invalid or unenforceable provision. The same shall apply in the event of a gap in this Contract.

Version:  September 2023