Terms of Use Demonstrator Fraunhofer-Gesellschaft

Preamble

As part of the publicly funded project "PhoQuant", the Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V., through its legally dependent Fraunhofer Institutes for Applied Optics and Precision Engineering (IOF) and for Photonic Microsystems (IPMS), together with a number of cooperation partners, is developing a new photonic computing network based on lithium-niobate-on-insulator (LNOI), which is intended to enable Gaussian Boson Sampling ("GBS") ("Demonstrator").

As part of the PhoQuant project, the Paderborn University has the task of setting up an academic test platform for GBS ("Demonstrator Uni Paderborn"), which is to be made available for use by certain users.

Furthermore, a software-based GBS simulator ("Simulator") is to be made available by HQS Quantum Simulations GmbH to certain users via a web-interface as part of the PhoQuant project.

Clarification: The use of the Demonstrator Uni Paderborn and the Simulator are not the subject of these Terms of Use. These Terms of Use govern solely the use of the Demonstrator of the Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V.

The Demonstrator is a test facility that is still under development and is made available by the Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V. on the basis of these Terms of Use exclusively for the purposes provided for in these Terms of Use (see Sec. 4.2).

The provision of the Demonstrator by the Fraunhofer-Gesellschaft is limited in time and currently planned until December 31, 2027 ("Project Period").

Contractual Partner; Gratuitousness; Scope; Changes; Form; Exclusion of Sec. 312i para. 1 sentence 1 no. 1 to 3 and sentence 2 BGB, Translation
1. The contractual partner of these Terms of Use is the Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V. with its registered office in Munich, registered in the register of associations of the Local Court of Munich under registration number VR 4461 (herein: „Fraunhofer-Gesellschaft“, „wir“ or „us“).
2. These Terms of Use apply to the use of the Demonstrator as made available for use from time to time by the Fraunhofer-Gesellschaft at the URL www.phoquant.net and the associated services, such as any support services (hereinafter collectively referred to as "Services").
3. The Fraunhofer-Gesellschaft provides the Services free of charge.
4. These Terms of Use apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the User shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing.
5. The User will be notified of changes to these terms of use by e-mail. If the User does not object to such amendments within six weeks of receipt of the notification, the amendments shall be deemed to have been agreed. The User will be informed separately of the right to object and the legal consequences of remaining silent in the event of changes to the Terms of Use. If the User objects to the changes, we shall be entitled to terminate these Terms of Use extraordinarily, but at the earliest with effect from the date on which the changes come into force.
6. Sec. 312i para. 1 sentence 1 no. 1 to 3 and sentence 2 German Civil Code (Bürgerliches Gesetzbuch, “BGB”) are hereby waived purely as a precaution.
7. These Terms of Use can be accessed at any time at https://www.phoquant.net/en-US/terms-of-use.html
8. Only the German version of these Terms of Use is legally binding; the English version of these Terms of Use is for information purposes only. In the event of contradictions between the two language versions, the German version shall take precedence.
Availability, Change of Service
1. The Demonstrator is a test system that is still under development. Its availability is therefore subject to difficulties and risks, in particular, but not exclusively, of a technical nature and may be temporarily restricted or excluded even without our will.
2. We may interrupt access to the Demonstrator from time to time (hereinafter: "Downtime"), in particular to carry out maintenance work or further developments to the Demonstrator. We will endeavor to announce such Downtimes in advance.
3. We reserve the right, at our sole discretion, to modify or discontinue the Demonstrator, access to the Demonstrator and other services at any time. We will endeavor to notify you of such measures in advance.
4. Claims by the User due to limited availability or non-availability of the demonstrator are excluded.
Registration Process, Conclusion of Contract
1. A prerequisite for the use of the Demonstrator is an application for admission of the applicant as a user. Only natural persons who are resident in Germany and have an employment or staff relationship with a legal entity that also has its headquarters or branch office in Germany (herein referred to as "User") may be admitted as a User in accordance with this Sec. 3. There is no entitlement to approval or use of the Demonstrator.
2. The following are excluded from use
  1. consumers within the meaning of Sec. 13 BGB, provided they do not use the Demonstrator in connection with their work or employment relationship;
  2. juristic and natural persons who are listed on an EU or U.S. sanctions list, including the U.S. Specially Designated Nationals (SDN) List and the U.S. Entity List;
  3. legal entities that are at least 50% owned or controlled by a person listed on an EU or U.S. sanctions list; and
  4. legal and natural persons who are citizens of or domiciled in an embargoed country, including Belarus, Crimea, Cuba, Iran, North Korea, Russia, Syria, Venezuela or the occupied Ukrainian territories of Donetsk and Luhansk.
3. We may make approval dependent on proof that the applicant is eligible as a User, e.g. by submitting an extract from the commercial register, stating their VAT ID number or other suitable evidence. If Germany is not the head office of the legal entity (see Sec. 3.1), or this legal entity is under the direct or indirect control of a foreign natural or legal person, this must be disclosed in the application, stating the head office and ownership structure.
4. We are entitled to request information from the User at any time, insofar as we are obliged by law to establish the identity of the User. If we decide - at our own discretion - to grant the User access to the Demonstrator, we will provide the User with an individual login. This login may only be used by this authorized User.
5. The User warrants that the information provided to us, in particular in the context of his application for admission, is true and complete. He undertakes to inform us immediately of any future changes to the information provided.
6. The application for approval of the User for the Demonstrator is made via a registration request on the web-interface. The approval application is accepted by confirmation of approval by e-mail.
7. The User is obliged to keep the login and password secret and to protect them from unauthorized access by third parties. In the event of suspected misuse by a third-party, the User shall inform us immediately. As soon as we become aware of the unauthorized use, we will block the unauthorized User's access. We reserve the right to change a User's login and password; in such a case, we will inform the User immediately
Obligations of the User; Purposes and Restrictions of Use
1. The User undertakes to use the Demonstrator and the Output (see Sec. 7.2) only in accordance with the applicable laws, the rights of third parties and these Terms of Use.
2. The Demonstrator is a test system that is still under development. The Demonstrator may therefore only be used for the following purposes:
  1. Research;
  2. Teaching and training; and
  3. Test and evaluation purposes.
  The Demonstrator and the Output may only be used for the benefit of the authorized User, the respective verified employer and the verified cooperation partners. Use of the Demonstrator and the Output for the benefit of other third parties is prohibited. This does not exclude the publication of the Output.
3. Use of the Demonstrator is prohibited in the following cases in particular:
  1. use if a fault in the Demonstrator could lead to injury to life, limb or health or damage to property,
  2. use in the field of nuclear or chemical plants, as well as life-sustaining or medical devices;
  3. use for military purposes, including, but not limited to, use in connection with the development, production or use of NBC weapons and missiles for such weapons and weapon systems;
  4. use for the generation of cryptocurrencies;
  5. use of the Demonstrator via interfaces other than those provided by us for the use of the Demonstrator;
  6. use to re-engineer the Demonstrator or parts of it;
  7. use to decrypt encrypted data or develop methods to break encryption methods;
  8. use for spamming activities;
  9. use for the purpose of overloading the Demonstrator or utilizing its resources, in particular to intentionally cause the platform to reset or intentionally degrade its performance.
4. The Fraunhofer-Gesellschaft reserves the right to check the Input (see Sec. 7.2) for compliance with these Terms of Use (in particular this Sec. 4). If the Input does not comply with these Terms of Use, we reserve the right to prevent the Demonstrator from processing the Input and, in particular, to take measures in accordance with Sec. 6.
Usage Quota and Usage Periods
1. The Demonstrator only has a limited computing capacity. Depending on the amount of use, it may be necessary for us to take various measures to regulate the extent of use of the Demonstrator, in particular
  1. we can allocate Users a specific usage quota in a specific period at our discretion. The use of the Demonstrator is then limited to this usage quota;
  2. we may assign Users certain periods of use at our discretion. The use of the Demonstrator is then limited to these usage periods.
Measures
1. We are entitled to take one or more of the following measures if there are concrete indications of a violation of legal regulations, third-party rights or these Terms of Use by the User:
  1. warning to the User;
  2. restriction of the use of the Demonstrator by Users; and/or
  3. temporary blocking or permanent deletion of the User account.
  The measures listed under 6.1.1 to 6.1.3 can also be taken in particular if access would be restricted or prohibited due to amended or newly issued European, national and international regulations, in particular US export control regulations.
2. When choosing a measure, we take into account the legitimate interests of the User. After a User has been permanently blocked, there is no entitlement to restoration of the blocked User account. If we do not take any action despite being aware of circumstances that would entitle us to take action, we do not thereby waive our right to take action with regard to current, future or similar violations.
Intellectual property; Rights to Input, Output and Feedback, Exemption
1. To the extent necessary for the use of the Demonstrator and as long as the User uses the Demonstrator within the framework of the existing laws and these Terms of Use, the User shall receive from Fraunhofer-Gesellschaft a nonexclusive, non-transferable and non-sublicensable right to use the Demonstrator for the purposes defined in these Terms of Use (see Sec. 4.2).
2. All intellectual property rights in (i) the User's input via the Web-Interface that is intended to be executed on the Demonstrator (hereinafter: "Input") and (ii) any output from the Demonstrator to the User via the Web-Interface in response to the Input (hereinafter: "Output") shall remain with the User.
3. The User grants the Fraunhofer-Gesellschaft the necessary rights to the Input and Output in order to enable the User to use the Demonstrator and to provide other services to the User in connection with the Demonstrator.
4. The User grants us a simple, free, transferable and sublicensable right of use to the Input and the Output, unlimited in time, space and content, to use this Input and Output in the context of our research and development activities, in particular to further develop the Demonstrator and to use the further developed Demonstrator as desired, in particular to exploit it commercially or have it exploited commercially
5. Insofar as the User provides us with Feedback in connection with the Demonstrator, Sec. 7.4 shall apply accordingly.
6. The User shall ensure that it has the necessary rights to the Input, Feedback and other content made available to us for use (hereinafter collectively referred to as "Content") in order to grant us the rights set out in these Terms of Use. The User shall ensure that the Input does not originate from a person on the sanctions lists to be checked ("Sanctioned Person") and that the Output is not passed on to any Sanctioned Person. The User indemnifies us against all third-party claims in connection with the use of the Content provided by the User and the use of the Demonstrator itself upon first request, insofar as we have used this Content within the scope of the Terms of Use. This includes the reimbursement of the reasonable costs of a defense against such third-party claims. The User shall support us in our defense to a reasonable extent.
Warranty
Our liability for material defects and defects of title shall be governed by the statutory provisions, in particular Sec. 600 BGB.
Liability
Our liability is limited to intent within the scope of fault-based liability
Data Privacy
Your personal data will be processed to the extent necessary within the scope of these Terms of Use, including pre-contractual measures. The legal basis for this is Sec. 6 para. 1 lit. b of the EU General Data Protection Regulation. In our data protection information (https://www.phoquant.net/en-US/data-protection-policy.html), we inform you about this and about the processing of your personal data on other legal bases.
Export Control
When using the Demonstrator and the Output, the User must ensure that all export control and sanction regulations under German and EU law are complied with; this also applies with regard to applicable US and other national law, insofar as this does not conflict with German or EU law.
Confidentiality
1. The User and Fraunhofer-Gesellschaft (hereinafter jointly or individually also referred to as the "Party/Parties") undertake not to disclose to third parties any Confidential Information (including business secrets) that they learn in connection with this Terms of Use and its execution (but see Sec. 12.2). Third parties within the meaning of this Sec. 12 shall not include the User's employer and the cooperation partners pursuant to Sec. 12.2. "Confidential information" is information that is marked as confidential or whose confidentiality is evident from the circumstances, irrespective of whether it was communicated in written, electronic, embodied or verbal form. Confidential information in the above sense does not include information that
  1. were obvious or known to the receiving Party at the time of transmission;
  2. have been made available to the receiving Party without breach of law by third parties; or
  3. the receiving Party has developed itself without using Confidential Information.
2. The User is advised that the Input, Output and/or Feedback may be made available to the cooperation partners of the "PhoQuant" project for research and development purposes and that they may be granted the rights set out in Sec. 7.4.
3. The User is prohibited from obtaining Confidential Information by means of Reverse Engineering. "Reverse Engineering" refers to all actions, including observing, testing, examining, disassembling and, if necessary, reassembling, with the aim of obtaining Confidential Information.
4. The confidentiality obligation under this Sec. 12 shall not apply, except in the cases of Sec. 5 German Trade Secrets Act (Geschäftsgeheimnisgesetz, “GeschGehG”), even if the receiving Party is obliged to disclose the Confidential Information by law or on the basis of a final or legally binding official or court decision. In this case, the receiving Party shall inform the disclosing Party of the resulting obligation to disclose immediately after becoming aware of the official or court decision. In addition, the receiving Party shall make it clear in the course of the disclosure that, if this is the case, it concerns business secrets and shall work to ensure that the provisions of Sec. 16 et seq. GeschGehG are applied.
Term, Termination, Notice of Termination
1. Through the approval (see Sec. 3.5), the contract of use between us and the respective User is concluded in accordance with these Terms of Use. The contract of use is limited to the duration of the provision of the Demonstrator by us.
2. The User contract may be terminated by the User at any time without notice. The User's right to terminate the User contract without notice for good cause remains unaffected.
3. Without prejudice to our right to terminate the contract of use without notice for good cause, we are entitled to terminate the contract of use
  1. in accordance with Sec. 6;
  2. in the event of the User and/or the User's employer being listed on an EU or US sanctions list after the User's authorization or in the event of a violation of European, national or US export control laws and regulations, insofar as these are applicable and do not violate European or national law, or
  3. failure to immediately report a change in the User's authorization information in accordance with Sec. 3 and taking into account the data protection information (https://www.phoquant.net/en-US/data-protection-policy.html)
4. Notice of termination may also be given by either Party by deleting the User account.
Final Provisions
1. German law shall apply to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention).
2. The User may only assign rights and obligations arising from this contract of use with the prior express consent of the Fraunhofer-Gesellschaft.
3. The User may only offset claims of the Fraunhofer-Gesellschaft against undisputed or legally established claims.
4. Should individual provisions of these Terms of Use be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining Terms of Use. The invalid provision shall be replaced by the contracting parties by mutual agreement with a provision that comes closest to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply accordingly in the event of loopholes.

Status of these Terms of Use: November 2024