Quantum Computing: Overview of Drafting Considerations for Quantum-as-a-Service Agreements

In this piece, authors Nigel Howard and Coco Zhang (Covington & Burling) take a look at the emerging landscape of quantum computing and its commercial delivery through “Quantum-Computing-as-a-Service” (QCaaS) or “Quantum-as-a-Service” (QaaS). Quantum computing, still largely in the research phase, is poised for commercial use, but its high cost and technical complexity mean that most users will access it via third-party platforms rather than owning quantum computers. These platforms will likely adopt a subscription or pay-per-use model, similar to Software-as-a-Service (SaaS) or Infrastructure-as-a-Service (IaaS), offering remote access to quantum computing resources. The authors highlight that while QaaS shares similarities with SaaS and IaaS, its unique technological challenges require careful consideration when drafting contracts to address risks specific to quantum computing.

The authors discuss how QaaS agreements must account for the distinct nature of quantum computing hardware. Unlike classical computers, which rely on standardized hardware, quantum computers vary significantly in design, with providers using approaches like superconducting qubits, ion traps, or neutral atoms to create qubits. These differences can impact performance, as faulty hardware design or inadequate maintenance could undermine the value of QaaS offerings. Consequently, QaaS contracts may need to include specific requirements for hardware development and maintenance to ensure reliability and performance, setting them apart from typical SaaS agreements that rarely address underlying hardware due to its established standards.

Another critical issue in QaaS agreements is error management, given the inherent challenges of quantum computing. The no-cloning theorem prevents perfect copying of quantum states, and qubits are highly sensitive to environmental noise, making error detection and correction a significant hurdle. While SaaS agreements often include disclaimers that services are not “error-free,” such broad disclaimers in QaaS contracts could allow providers to evade liability for significant issues. The authors suggest that customers should push for contractual provisions that ensure errors are controlled within defined parameters and that providers address deviations, balancing the experimental nature of quantum computing with accountability.

Finally, Howard and Zhang address the challenge of quantum information storage and its implications for QaaS contracts. Quantum information cannot be stored in classical memory and relies on error-prone quantum memory, which lacks persistence and poses challenges for audit and record-keeping provisions common in SaaS agreements. With no quantum hard drives available and regulatory compliance concerns looming, legal practitioners must craft new provisions tailored to quantum computing’s limitations. As QaaS becomes more prevalent, the authors urge lawyers to develop adaptive frameworks that address these unique characteristics, moving beyond reliance on traditional SaaS contract templates to meet the demands of this transformative technology.

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