Terms of Service and Privacy Policy

Written By chloe kwok

Last updated 9 months ago

Terms of Service

These Terms of Service (these "Terms") are a legally binding agreement between Distribyte Inc. DBA Inference.ai ("Inference.AI", “we”, “us”, or “our” as applicable in context), a Delaware corporation, and customer (“you”, “Customer”, or “your” as applicable in context, and together with Inference.AI, the “Parties” and each a “Party”), whether defined as an end user who is utilizing the Services (as defined), or, the entity for which an end user is acting as a duly authorized Representative (as defined) where the entity has obtained Services pursuant to a separate agreement or by click-through purchase on our website (an "Order Form"), in which case, these Terms bind the entity in addition to the terms and conditions of an Order Form to which the entity and Inference.AI are signatory. THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. THE PARTIES AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT, INDIVIDUALLY OR AS PART OF A CLASS ACTION. THESE TERMS CONTAIN VARIOUS DISCLAIMERS AND LIMIT OUR LIABILITY TO YOU. PLEASE UNDERSTAND SUCH LIMITATIONS BY REVIEWING THESE TERMS THOROUGHLY.

1. Definitions in these terms

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

"Affiliate" of a Party means any other party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received from Customer by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer.

"Customer Group" means Customer and its Affiliates, and each “Customer Group Member” means the applicable entity in context which is a beneficiary of Services pursuant to these Terms and the applicable Order Form.

"Documentation" means any manuals, instructions, or other documents or materials that the Inference.AI provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the operation, use, or support thereof.

"Fees" means the amount a customer is obligated to pay Inference.AI in connection with an Order Form.

“GPU” means graphics processing units.

"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer from accessing or using the Services as intended by these Terms. Harmful Code does not include any Inference.AI Disabling Device.

"Inference.AI Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Inference.AI or its designee to disable Customer's or any authorized Representative's access to or use of the Services automatically with the passage of time or under the positive control of Inference.AI or its designee.

"Intellectual Property Rights" means patents, patent applications, inventions, and discoveries (whether patentable or unpatentable), copyrights and copyrightable works, moral rights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, rights in software, databases, artificial intelligence and AI algorithms, and all other intellectual property rights and similar forms of protection throughout the world.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

"Login Credentials" means any user-name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an authorized Representative’s identity and authorization to access and use the Services.

"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

"Privacy Policy" means Inference.AI’s Privacy Policy which sets out Inference.AI’s approach to use and protection of data obtained through the Services.

"Resultant Data" means data and information related to Customer’s use of the Services that is aggregated and anonymized, including to compile statistical and performance information related to the provision and operation of the Services. For the avoidance of doubt, Resultant Data excludes any Customer Data.

“Suppliers” means the data centers which host the GPUs offered through our Services.

"Representatives" means, with respect to a Party, that Party's and in case of Customer, its Affiliates', employees, officers, directors, consultants, agents, and independent contractors.

"Services" means the cloud based platform through which Customers can provision use of GPUs from Nvidia, AMD, Intel and other OEMs as offered by our Suppliers.

"Term" means the contract duration agreed upon in the Order Form(s).

"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Inference.AI.

"Third Party Terms" means our third party licensor and provider’s terms and conditions applicable to any Customer’s use of their offering as incorporated into the Service.

2. Services

  1. What We Provide. Through our Services, Company provides you access to a GPU cloud solution allowing you access to virtualized and bare-metal GPU resources and other compute resources (the “Service”).

  2. Ordering our Services. Upon a duly executed Company Order Form, Company hereby grants Customer and each of its Affiliates as provided under the Order Form, a non-exclusive, non-transferable (except in compliance with Section 11.8) right to access and use the Services during the Term, solely for use by the applicable Customer Group in accordance with (i) the terms and conditions set out herein, the Order Form, and (ii) any applicable Third Party Terms. You cannot access our Services if you are in an embargoed country according to OFAC.

  3. No Other Forms or Terms. In accordance to Section 11(a) (Entire Agreement) unless Company signs Customer’s Order Form and agrees in writing to accept any other terms, no Customer Order Form, terms & conditions, or any other agreement shall govern in contravention of these Terms, incorporated into a Company Order Form. No email or verbal direction shall supersede items set out in an Order Form or these Terms. No third party terms will override the legally binding agreement between you and the Company.

  4. Availability and Support. We endeavor to work with Suppliers that are reliable no matter the region in which you are seeking GPUs. Subject to Force Majeure Events (see Section 18(e)) during the Term, our performance objective shall be stated clearly in the Service Levels as attached to the Order Form.

    From time to time, the Services may be unavailable or degraded due to: (1) scheduled maintenance during maintenance hours; (2) emergency maintenance that reasonably require prompt action to protect the integrity or security of the Supplier’s infrastructure, any part of the Service or Customer Data; (3) Customer’s actions or inactions that may pose a threat to any part of the Service; (4) Customer’s systems or equipment failure; and/or (5) Internet, telecommunications, cloud hosting, or network outages. The foregoing shall not be a breach of the Services. Customer may obtain support by contacting Company at [email protected].

  5. Changes. Company may update the Services as required, including to comply with applicable laws, address security risk or Service need, or in order to introduce new features.

    Company may update these terms from time to by posting any such updates at https://www.inference.ai/termsThese changes will be effective when/if your Order Form renews or upon your acceptance by a clear prompt provided by us.

  6. Acceptable and Restricted Use.

    i. Customer Group Members shall use the Services in compliance with all applicable Laws and these Terms. See the disclaimers under Section 7(c)(Disclaimer) of these Terms to understand ways in which our support is limited in respect of a Customer’s usage of the Services.

    ii. Any breach of these Terms, including by a Customer Group Member or any such entity’s Representative shall be, for the purposes of these Terms, a breach by Customer also, and liability shared subject to Section 10(b) of these Terms.

    iii. Customer Group Members shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer Group Members shall not, except as these Terms expressly permit:

    A. Utilize the Services for purposes that are in violation of applicable Laws, including to conduct illegal activities, or store, distribute, process or otherwise handle content or any materials which are contrary to Laws;


    B. Utilize the Services for the purposes of mining cryptocurrency;

    C. Share or disclose Login Credentials to anyone other than authorized User;

    D. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

    E. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;

    F. Bypass or breach any security device or protection used by the Services or access or use the Services other than by an authorized Representative through the use of his or her own then valid Login Credentials;

    G. Input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

    H. Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, in whole or in part;

    I. Access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party; or

    J. Access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing service or product.

  7. Our Right to Suspend. We or our Suppliersmay, by use of an Inference.AI Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's or any authorized Representative's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Customer has not provided payment in accordance with the terms of the Order Form or these Terms; (b) we or our Suppliers receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us or our Suppliers to do so; (c) we or our Suppliers believe, in our respective reasonable discretion, that: (i) Customer or any authorized Representative has failed to comply with any material term of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose prohibited under these Terms or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any authorized Representative is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; (iii) emergency maintenance that reasonably requires prompt action is needed to protect the integrity or security of the Supplier’s infrastructure, any part of the Services or Customer Data; or (iv) Customer’s actions or inactions that may pose a threat to any part of the Service. This subsection (g) does not limit any of Company’s other rights or remedies, whether at law, in equity, or under these Terms.

  8. Subcontractors. Nothing herein shall prohibit Company from engaging third parties to perform part of the Services (each, a "Subcontractor").

3. Customer Obligations

  1. Customer shall:

    i. Provide Inference.AI with all information and assistance reasonably required to obtain the Services; and

    ii. Comply with any applicable Laws.

  2. Customer Controls. Customer has exclusive control and responsibility for determining who has access to the Services and what Customer Data is submitted on Customer Group’s behalf into the Service.

  3. The Customer Group is responsible for: (i) the legality of any use of the GPUs, including any Customer Data; (ii) compliance of authorized Representatives with applicable Laws, the terms and conditions of these Terms, and all applicable Third Party Terms; (ii) any acts of unauthorized access to the Services, where such access is gained by unauthorized use of the Customer's Login Credentials; (iv) informing Company immediately upon becoming aware of (A) any unauthorized access to the Services via the Customer's Services account, or (B) any occurrence in relation to Customer Group systems, access or representatives which has a chance of reasonable chance of negatively impacting the Services or Supplier’s GPU; (v) aiding in any investigation or legal action as reasonably requested by us or Supplier; and (vi) in the event of any disruption noted by Customer Group, informing us at [email protected] with the subject "Downtime Notice", such notice to include the date, time, duration, and a reasonably detailed description of the relevant circumstances surrounding any notable downtime of the Services and lack of access to GPUs.

4. Fees and Payment

  1. Fees. Customer shall pay Company the amounts set out under the applicable Order Form for the Term. The Customer shall pay Inference.ai the fees specified in the Order Form. If the Order Form includes Inference.ai Services charged:

    i. On a per-hour basis (e.g., "instant server" deployment), the Customer must provide a form of payment or deposit sufficient funds with Inference.ai in advance (as further specified under the Order form). Access to such Inference.ai Services will cease if the Customer's account has insufficient funds.

    ii. On a subscription basis (e.g., "dedicated server" orders), the Customer authorizes Inference.ai to charge the Customer's credit card (or other approved payment mechanism), or invoice the Customer for all amounts due and owing for any Order, including taxes and any other associated fees.

  2. Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer to Company, other than any taxes imposed on Company's income.

  3. Payment. Customer shall pay all Fees within 7 days after the date of receipt of Company’s invoice by ACH or wire to the account specified by Company in writing. We may in some instance offer you the ability to pay by a third party payment provider – we do not store your bank or credit card account information. You are entirely responsible for making payments to the correct Company account.

  4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law, and Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. If such failure continues for 30 days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.

  5. No Deductions or Setoffs. All amounts payable to Company by Customer shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

5. Intellectual Property and Ownership

  1. Customer Data. As between the Customer Group and Company, each Customer Group Member owns and will continue to own all rights, title, and interest, including all Intellectual Property Rights, in and to its applicable Customer Data, and nothing set out under these Terms shall in any way transfer any right in a Customer Data to any other entity, including Company and Supplier

  2. Company Services. As between Customer Group and Company, owns, and reserves all

  3. rights, title, and interest, including all Intellectual Property Rights, in and to (i) the Services, and (ii) any Resultant Data.

  4. Feedback. Each Customer Group Member hereby grants Company a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to any feedback, comments, ideas, and suggestions for improvement as provided by a Customer Group Member and any of their Representatives (collectively, "Feedback"). To the extent that such Feedback relates in any way to Company’s Confidential Information (as defined), such Feedback is exclusive to Company and shall be Company Confidential Information. Company may, without any obligation, incorporate, use, commercialize and distribute in any manner, including, without limitation, as part of the Services such Feedback without any attribution, payment or other obligation to Customer or its Affiliates.

  5. Use of Aggregate Information. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze statistics relating to the provision, use and performance of various aspects of the Services (in whole or in part) and related systems and technologies, and Company will be free (during and after the term hereof) to (i) use such data to improve and enhance the Services (in whole or in part) and for other development, diagnostic and corrective purposes in connection with the Services (in whole or in part), and (ii) utilize any such data in an aggregated or other de-identified form for any legal purpose in conformance with the Privacy Policy.

6. Confidentiality

In connection with provision of the Services, we will not disclose any information in respect of your Order to any party in a way that runs counter to our Privacy Policy.

7. Representations and Warranties; Disclaimer

  1. Representations and Warranties. Each Party represents and warrants that:

    i. It is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

    ii. It has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms, including in respect of its Affiliates as contemplated hereunder;

    iii. The execution of an Order Form by its representative whose signature is set forth at the end of such documents has been duly authorized by all necessary corporate or organizational action of such party; and

    iv. When executed and delivered by both Parties, the foregoing documents under subsection iii, as well these Terms, will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

  2. Additional Customer Representations, Warranties, and Covenants. Each Customer Group Member represents, warrants, and covenants to Company that it will not conduct, or allow any party to breach Section 2(f) (Acceptable and Restricted Use) of these Terms.

  3. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN ORDER FORM OR THESE TERMS:


    i. THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND COMPANY DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER IN CONNECTION WITH THE SERVICES;

    ii. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY REQUIREMENT OR WARRANTY THAT THE SERVICES WILL BE ERROR FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED;

    iii. COMPANY FURTHER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW;

    iv. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE;

    v. THE PARTIES ACKNOWLEDGE THAT THE SERVICES UTILIZE THIRD-PARTY SupplierS’ INFRASTRUCTURE WHICH ARE NOT WARRANTED IN ANY MANNER BY SUCH THIRD PARTIES OTHER THAN THE SERVICE LEVELS WHICH ARE PASSED THROUGH TO CUSTOMER;

    vi. WE ARE NOT RESPONSIBLE FOR SECURITY, MAINTENANCE, ANY ACTION TAKEN BY ANY SUPPLIER OR ANY OTHER PARTY IN RESPECT OF THE GPUS UTILIZED BY CUSTOMER;

    vii. COMPANY DOES NOT MONITOR OR POLICE USE OF THE GPUS – COMPANY IS NOT RESPONSIBLE FOR THE CONTENT THEREIN OR OUTPUT THEREFROM, EVEN IF PROVIDED ANY NOTICE IN RESPECT OF THE FOREGOING; AND

    viii. COMPANY DOES NOT CONDONE OR IN ANY WAY ENCOURAGE ANY USE OF SUPPLIER’S GPUS FOR PURPOSES OF BREACH OF ANY LAWS.

8. Term and Termination

  1. Term. These Terms commence on the Effective Date of the Order Form. Unless earlier terminated pursuant to these Terms, these Terms will be coterminous with the Order Form.

  2. Month-to-Month Services Cancellation. For any Services provided on a month-to-month basis (i.e., where the Order Form does not specify a fixed Term), either Party may terminate such Services for convenience, provided that the terminating Party gives the other Party no less than thirty (30) days’ prior written notice. Notice must be delivered in accordance with the notice provisions set out in these Terms. Notwithstanding the foregoing, if Customer fails to provide thirty (30) days’ written notice prior to the intended cancellation date, Customer shall remain responsible for payment of Fees through the end of the thirty (30) day period following such notice, regardless of whether Services are utilized. No pro-rated refunds shall be issued for unused Services in the event of early cancellation by Customer.

  3. Termination for Cause.

    i. In the event of material breach of its terms and conditions where such breach is either uncurable, or if curable is not cured within 30 days of written notice of breach by the other Party, either Party may terminate these Terms or a Group Member may terminate its receipt of Services under an Order. Termination of these Terms shall automatically terminate the applicable Order Forms. Breach of Section 7(b) of these Terms by Customer shall be deemed uncurable and Company or its Supplier may terminate the Services without any penalty or other liability to Customer.


    ii. Either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

  4. Effect of Expiration or Termination. Upon expiration of the Term or termination of these Terms, Customer Group Member shall no longer access or use the Services.


    If the termination of Services occur because of your breach of these Terms, you will forfeit any Fees you have paid in advance. If you or we terminate the Order Form because of Company’s inability to provide you the Services, we will refund you any Fees paid in advance on a pro-rata basis for the remainder of the Term.

  5. Survival. Notwithstanding the termination or expiration of these Terms, any provisions of these Terms that by their nature should survive termination or expiration will continue in full force and effect subsequent to and notwithstanding such termination or expiration until they are satisfied or by their nature expire. This includes, but is not limited to, this Section 8(d), Sections 1,4(a), 5, 7(c), 8(c), (d), 9, 10, and 11 of these Terms and any other obligations that may reasonably be expected to be performed or observed after such termination or expiration.

9. Indemnification

  1. Customer shall indemnify, defend, and hold harmless Company and its Suppliers and its and their Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Company Indemnitee") from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:

    i. Customer Data;


    ii. Breach of Third Party Terms;

    iii. Allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms; or


    iv. Negligence, or more culpable act or omission (including recklessness or willful misconduct) by Customer, any authorized Representative, or any third party on behalf of Customer or any Authorized Representative, in connection with these Terms.

  2. Company shall promptly notify Customer in writing of any Action for which Customer believes it is entitled to be indemnified pursuant to Section 9(a). Customer shall cooperate with respect to the defense of the Action at Customer's sole cost and expense. Customer shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at Customer's sole cost and expense. Company may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Customer shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without Company's prior written consent, which shall not be unreasonably withheld or delayed. If Customer fails or refuses to assume control of the defense of such Action, Company shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Customer, in each case in such manner and on such terms as Company may deem appropriate. Company's failure to perform any obligations under this Section 9(b) will not relieve Customer of its obligations under this Section 9, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.

10. Limitation of Liability

  1. EXCLUSION OF DAMAGES. IN NO EVENT WILL Company OR ANY OF ITS LICENSORS, SupplierS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) EXCEPT FOR ANY SERVICE LEVEL RELATED CREDITS, ANY IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  2. CAP ON MONETARY LIABILITY. EXCEPT FOR Customer’S LIABILITY UNDER SECTION 9 (INDEMNIFICATION) IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER FORM, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO Company UNDER THESE TERMS IN THE 12 MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    In respect of liability, unless agreed upon in an Order Form, Customer Group Members shall be jointly and severally liable under these Terms.

  3. Mitigation. If any of the Services are, or in Company's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer Group Member’s use of the Services is enjoined or threatened to be enjoined or if a particular Supplier cannot satisfy the service levels that are agreed upon between you and us, Company may, at its option and sole cost and expense:

    i. Obtain the right for Customer to continue to use the Services materially as contemplated by these Terms;

    ii. As applicable, modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) available, or non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under these Terms; or

    iii. By written notice to Customer, terminate these Terms with respect to all or part of the Services, and require Customer to immediately cease any use of the Services or any specified part or feature thereof, provided subject to Customer's compliance with its post-termination obligations set forth in Section 8(c) (Effect of Termination or Expiration) Customer will be entitled to a refund of pre-paid fees for the remaining Term on a pro-rata basis.

  4. Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THESE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY OR IN THE EVENT THE GPUS ARE UNAVAILABLE.

11. General

  1. Entire Agreement and Conflicts. These Terms and any other document, exhibits and schedules referenced herein and attached hereto, including the Order Form, as applicable, constitute the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms In case of any conflict between these Terms and an Order Form and any schedule or exhibit thereto, the terms set out under these Terms will prevail to the extent of such inconsistency, unless the conflicting document expressly states the section in these Terms that is overridden by the noted section in the conflicting document.

  2. Governing Law and Dispute Resolution.

    i. Any dispute or claim by Customer arising out of or related to these Terms shall be governed by the Laws of the State of California, exclusive of its choice of law rules. The Convention on Contracts for the International Sale of Goods will not apply. Any Law which provides that the language of a contract shall be construed against the drafter will not apply to these Terms. This paragraph will be interpreted as broadly as applicable Law permits.


    ii. Except for Company’s ability to seek an injunction against Customer in any court to prevent any imminent harm against Company or its users, any dispute, controversy, or claim arising out of or relating to these Terms, or the breach, termination, or validity thereof, shall be settled by binding arbitration subject to the U.S. Federal Arbitration Act ("FAA"), federal arbitration law and in accordance with the rules of the American Arbitration Association. The sole arbitrator’s decision is final, except for a limited review by courts under the FAA, and can be enforced like any other court order or judgment.



    iii. Individual Arbitration. The arbitration shall be conducted on an individual basis, and not as a class, consolidated, or representative action. The arbitrator(s) shall have no authority to proceed with arbitration on a class or representative basis. Any relief awarded by the arbitrator(s) shall be individualized to the claimant and shall not affect any other party.

    iv. No Class Action. To the fullest extent permitted by applicable law, no arbitration or claim under these Terms shall be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of our Services, and no class arbitration proceedings shall be permitted. Customer agrees to waive any right to commence or participate in any class action against Company related to any claim and, where applicable, Customer also agrees to opt out of any class proceedings against Company.



    v. Arbitrator Authority. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this arbitration agreement, including any contention that all or any part of this arbitration agreement is void or voidable.

    vi. Severability. If any provision of this arbitration clause is found to be unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.

    vii. Execution. This arbitration and no class action clause shall be effective the earlier of Customer’s execution of the Order Form or upon acceptance by Customer of these Terms and shall survive the termination or expiration of these Terms.

  3. Waiver, Severability, Modification, Headings. The waiver by either Party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect. An Order Form, or any portion of these Terms may not be modified or amended except in a writing signed by a duly authorized representative of each Party. The headings in these Terms are for the convenience of reference only and have no legal effect.

  4. Notices. Notices to a Party will be sent in English by overnight courier to the address for such Party as identified on an Order Form, and will be deemed given upon delivery or if by email (for Company, to [INSERT]), upon transmission as followed up within 2 business days by written notice in any instance of notice in respect of a material issue under these Terms.

  5. Force Majeure. Company and its Suppliers will not be liable by reason of any failure or delay in the performance of its obligations under these Term on account of events beyond the reasonable control of such parties (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Company and its Providers will be excused from further performance of any obligations affected by the Force Majeure Event but only for so long as the event continues, and such parties continues to use commercially reasonable efforts to resume performance.

  6. Compliance with Laws. Each Party agrees to comply with all applicable Laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

  7. Relationship Between the Parties. Nothing in these Terms will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Parties’ prior written consent.

  8. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.

  9. Assignment. Neither Party may assign or transfer these Terms or Order Form, in whole or in part, without the other Party’s prior written consent, except that either Party may assign these Terms or Order Form in connection with a merger, acquisition, or transfer of all or substantially all such Parties’ assets or voting securities with written notice to the other Party. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, these Terms or Order will inure to the benefit of the Parties’ successors and permitted assigns.

  10. Non-Exclusive Remedies. Except as expressly set forth in Section 10(d) (Sole Remedy), the exercise by either Party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

  11. Equitable Relief. Customer acknowledges that a breach by Customer of any proprietary rights provision or action in breach of Section 2(f) (Acceptable and Restricted Use) of these Terms may cause Company or its Suppliers irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Company or its Suppliers may institute an action to enjoin Customer Group Member from any acts or omissions in violation of those provisions, which remedy will be cumulative and not exclusive, and Company or its Suppliers may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the Company or its Suppliers may be entitled at law or in equity.

  12. Interpretation. For purposes of these Terms and Order Form: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Terms and Order Form, in context and as appropriate, as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Terms and Order Form as appropriate in context; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend these Terms and Order Forms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.