Compute Services Agreement

Compute Services Agreement

This COMPUTE SERVICES AGREEMENT is a legal contract that governs the use of and access to the Services (as defined below) that Voltage Park, Inc., a Delaware corporation, (“Voltage Park”) may make available to you (“Customer”). For the purposes of this Agreement, “Customer” means you, and if you are using or procuring the Services on behalf of a company or other entity, then “Customer” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and (b) you agree to this Agreement on the entity’s behalf. Customer and Voltage Park are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

Please read this Agreement carefully, as it includes important information about the Parties’ rights. Please note that Section 11.e contains an arbitration clause and class action waiver. By agreeing to this Agreement, Customer agrees (a) to resolve all disputes (with limited exception) related to the Services through binding individual arbitration, which means that Customer waives any right to have those disputes decided by a judge or jury, and (b) that Customer waives the right to participate in class actions, class arbitrations, or representative actions.

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions
   1. “Acceptable Use Policy” has the meaning set out in Section 2.c.
   2. “Account” has the meaning set out in Section 2.d.
   3. “Agreement” means this Compute Services Agreement, Exhibit A and all other documents attached hereto or incorporated herein, and any Order entered into hereunder.
   4. “Affiliate” of a Party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
   5. “Claims” has the meaning set out in Section 8.
   6. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party or that a reasonable person should consider confidential given the nature of the information and the circumstances under which it is disclosed. Voltage Park’s Confidential Information shall include the Voltage Park Property, pricing information and the terms of this Agreement (which, for the avoidance of doubt, Voltage Park may disclose to third parties in its sole discretion). Customer’s Confidential Information shall include the Customer Property. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
   7. “Customer Property” means any data provided to Voltage Park by Customer or any User or otherwise loaded on, or processed by, the Infrastructure Platform by Customer or any User in connection with the Services (excluding, for the avoidance of doubt, any Voltage Park Property).
   8. “Customer-Provided Products” means all software, products or services installed or run by Customer or any User on the Infrastructure Platform or in connection with the Services, including software, products and services that are designed to interoperate with the Services (for example, third-party cloud services purchased by Customer from the applicable third party, independent of this Agreement).
   9. “Data Incident” means any breach in security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Customer Property.
   10. “Documentation” means all documentation and other instructional material regarding the use of the Services that is generally made available by Voltage Park to its customer base.
   11. “Effective Date” has the meaning set out in Section 10.a.
   12. “Feedback” has the meaning set out in Section 4.d.
   13. “Fees” has the meaning set out in Section 3.a
   14. “Infrastructure Platform” means the infrastructure platform provided by Voltage Park as specified in the Order (as modified, enhanced, updated and upgraded from time to time).
   15. “Order” means an bid for Services that is placed by Customer through the website located at auction.voltagepark.com pursuant to the Voltage Park Bid Terms and that is accepted by Voltage Park in accordance with the Voltage Park Bid Terms.
   16. “Sub-processor” means any third-party data processor engaged by Voltage Park that receives Customer Property from Voltage Park for processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by Voltage Park) and the terms of its written subcontract with Voltage Park, including third party data centers and development, production, maintenance, marketing, financing and customer support providers in connection with any of the Services.
   17. “Taxes” has the meaning set out in Section 3.c.
   18. “Term” has the meaning set out in Section 10.a.
   19. “Usage Information” has the meaning set out in Section 5.c.
   20. “User” means any person that accesses Customer’s Account or otherwise accesses or uses the Services in connection with Customer’s Account.
   21. “Voltage Park Bid Terms” means the Voltage Park online compute terms of service located at https://auction.voltagepark.com/terms-of-service.
   22. “Voltage Park Indemnified Parties” has the meaning set out in Section 8.
   23. “Voltage Park Property” means (i) the Infrastructure Platform and Services, (ii) the Documentation, and (iii) all other data, content, materials, facilities, networks, systems and software supplied by Voltage Park or its contractors in connection with, or used by Voltage Park or its contractors in providing, the Services, and (iv) all modifications, derivative works, enhancements, updates and upgrades to or of any of the foregoing.
2. Services

a. Provision of Services

Subject to Customer’s compliance with the terms and conditions of this Agreement and full payment of the Fees, Voltage Park hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right during the Term to access and use the Infrastructure Platform for Customer’s internal business purposes in accordance with the terms and conditions of this Agreement (the provision of such access and use is hereinafter referred to as the “Services”). Voltage Park is not required to modify, enhance, update or upgrade the Infrastructure Platform.

b. Order

The Order will be subject to, and governed by, the terms and conditions of this Agreement.

c. Acceptable Use Policy

Customer will at all times comply with and ensure that all of its Users comply with: (i) the Acceptable Use Policy set forth on Exhibit A (the “Acceptable Use Policy”); and (ii) any other policies or procedures provided by Voltage Park to Customer from time to time. Voltage Park may update the Acceptable Use Policy and such policies and procedures from time to time upon notice to Customer.

d. Account

Services can only be accessed after the creation of an account with Voltage Park (“Account”). Any information provided by Customer to set up its Account will be subject to authentication by Voltage Park and Customer will be responsible for ensuring that all such information is current and accurate at all times. Customer shall not disclose or otherwise share any account authentication information with any third party without Voltage Park’s prior written consent in each instance. Customer is solely responsible for ensuring the security and confidentiality of all such information and shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords and verifying the trustworthiness of persons who are entrusted with access to such information. Customer must notify Voltage Park immediately of any unauthorized access of its Account or its log-in information upon becoming aware of it.

e. Responsibility for Users

Customer is responsible for its Users’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a User will be deemed to be a breach of this Agreement by Customer. Without limiting the generality of the foregoing, Customer is solely responsible for managing which Users have access to Customer Property, for any actions taken by such Users with respect to the Account and Customer Property and for all activities that are taken through use of its Account.

f. Support Services

In connection with the operation of the Services, Voltage Park shall use commercially reasonable efforts to provide support by email from 9:00 AM to 5:00 PM (Pacific Time) during business days. Voltage Park will use commercially reasonable efforts to respond to support requests within one (1) business day, although Voltage Park does not promise or guarantee any specific response time.

g. Connection

A high-speed Internet connection is required for proper transmission of the Services. Customer is responsible for: (i) procuring and maintaining the network connections that connect Customer’s network to the Services, including “browser” software that supports protocols used by Voltage Park and Secure Socket Layer (SSL) protocol or other protocols accepted by Voltage Park; and (ii) following procedures identified by Voltage Park for accessing services that support such protocols. Voltage Park is not responsible for notifying Customer or its Users of any upgrades, updates, fixes or enhancements to any such software or for any compromise of data, including Customer Property, transmitted across computer networks or telecommunications facilities (including to the Internet) which are not owned by Voltage Park. Voltage Park assumes no responsibility for the reliability or performance of any connections used by Customer or any User to access the Services.

h. Communications

Voltage Park may rely and act on all information and instructions provided by Users.

i. Monitoring; Modifications to the Services

Voltage Park may monitor the use of the Services and Customer Property to: (i) respond to any applicable law or regulation or any legal process or request from a governmental or regulatory authority (in which case Voltage Park shall provide prompt notice to Customer where permitted by law or regulation and use its reasonable efforts, at Customer’s expense, to assist Customer in seeking a protective order or another appropriate remedy, as may be applicable); (ii) verify compliance with this Agreement, including investigation of potential violations hereof; (iii) detect, prevent or otherwise address fraud, security or technical issues; (iv) respond to User support requests; or (v) protect the rights, property or safety of Voltage Park, Voltage Park’s users or contractors and the public. Voltage Park may modify the Services and Documentation from time to time upon notice to Customer, and may modify the data center from which Services are performed, so long as, in each case, Voltage Park will not materially reduce the functionality of the Services provided to Customer.

j. Suspensions

Voltage Park may immediately suspend, throttle or terminate access to the Services if: (i) Voltage Park reasonably believes that Customer or any User is in breach of this Agreement; (ii) Customer or any User engages in excessive utilization of the Services which affects, or could reasonably (in Voltage Park’s opinion) affect, system availability or performance; (iii) Voltage Park in good faith suspects that any third party has gained unauthorized access to the Services using a credential issued by Voltage Park to Customer or its Users; (iv) Voltage Park is required by applicable law or regulation, legal process or any governmental or regulatory authority to suspend the Services; or (v) Voltage Park reasonably believes such action is necessary to prevent or limit any suspension, termination or breach of any third party contract or service that Voltage Park uses to provide the Services. In addition, Voltage Park may temporarily suspend access to the Services during planned downtime. Voltage Park shall not be liable to Customer, its Users or any other third party for any such modification, suspension, termination or discontinuation of Customer’s rights to access and use the Services, and Customer shall remain liable for the payment of all Fees.

• 3. Fees and Payment Terms

a. Fees

Customer will pay to Voltage Park all fees specified in the Order or otherwise incurred pursuant to this Agreement (“Fees”) in accordance with this Section 3 and the Order. Fees are quoted and payable in United States dollars to the account designated by Voltage Park in writing. Payment obligations are non-cancelable, and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.

b. Invoices and Payment

When Customer purchases Services, Customer (i) agrees to pay the Fees per hour for such Services as set forth in the applicable Order and all applicable taxes (the “Hourly Rate”), and (ii) authorizes Voltage Park to charge Customer’s credit card or other payment method for five days’ worth of Fees, based on the Hourly Rate, in advance, every five days during the Term commencing with the Effective Date (each such five-day period, a “Fee Period”, and every five-day anniversary of the Effective Date a “Fee Period Start Date”). Subject to the terms and conditions of this Agreement, if (i) this Agreement terminates pursuant to Section 10.b; and (ii) as of the effectiveness of such termination, the aggregate quantum of hours in the Fee Periods for which Customer has been charged exceeds the duration of the Term (such excess number of hours, the “Excess Hours”), then Customer will have the right to request a refund equal to the product of the Excess Hours and Hourly Rate.

Customer represents and warrants that Customer has the legal right to use the payment method Customer provides to Voltage Park or our payment processor, including, without limitation, any credit card you provide when completing a transaction. Voltage Park reserves the right, with or without prior notice and in Voltage Park’s sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Services, and (b) refuse to allow any user to purchase any Service. If any amounts invoiced by Voltage Park under this Agreement are not received by a Fee Period Start Date, then (x) such amounts will be subject to a late charge of two percent (2%) per month or the maximum charge permitted by law, whichever is less, (y) Voltage Park may, at its election, withhold provision of the Services until such amounts are paid in full or terminate this Agreement, effective immediately, and (z) Customer will pay all costs of collecting amounts owed under this Agreement, including court costs and reasonable attorneys’ fees. Customer must notify Voltage Park of any fee disputes within thirty (30) days of the applicable invoice date or such invoice will be deemed accepted.

c. Taxes

Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body arising from Voltage Park’s provision of the Services hereunder (collectively, “Taxes”), except for taxes assessed upon Voltage Park’s net income. If Voltage Park is required to pay Taxes related to Customer’s or any User’s use or receipt of any Services, Customer agrees to promptly reimburse Voltage Park for any amounts paid by Voltage Park. If Customer is required to withhold any Taxes related to Customer’s or any User’s use or receipt of any Services, the Fees payable to Voltage Park shall be deemed to be increased to the extent necessary to ensure that Voltage Park receives the same amount of Fees (net of any withholding) that it would have received had no withholding been made or required to be made. Customer shall provide Voltage Park with all reasonable information and documentation requested by Voltage Park regarding the Taxes which are or were due (or which may be due) under this Agreement.

d. Payment Credits

Customer may purchase Services credits. Amounts paid by Customer to purchase Services credits in connection with the placement of a bidto obtain Services from Voltage Park pursuant to the Voltage Park Bid Terms will be applied toward the applicable Services under this Agreement. To the extent that any credits remain unused, Customer may request a refund from Voltage Park by contacting us at [email protected]. Credits may not be assigned or transferred and have no cash value.

• 4. Proprietary Rights

a. Customer Property

As between Customer and Voltage Park, Customer retains all right, title and interest in and to the Customer Property, including all intellectual property rights embodied therein or related thereto. Except as expressly set out in this Agreement, no right, title or license under any Customer Property is granted to Voltage Park or implied hereby.

b. Voltage Park Property

As between Voltage Park and Customer, Voltage Park retains all right, title and interest in and to the Voltage Park Property, including all intellectual property rights embodied therein or related thereto. Except for the limited licenses expressly set out in this Agreement, no right, title or license under any Voltage Park Property is granted to Customer or implied hereby.

c. Licenses to Customer Property

Customer hereby grants to Voltage Park a limited, non-exclusive, transferable, worldwide, fully-paid and royalty-free, sublicenseable, irrevocable and perpetual license to access and use the Customer Property made available to Voltage Park or any of its Affiliates as necessary for Voltage Park to provide the Services to Customer, create Usage Information and exercise its rights pursuant to this Agreement. Additionally, Customer hereby grants Voltage Park a non-exclusive, revocable, transferable, worldwide, fully-paid and royalty-free license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services.

d. Feedback

By submitting to Voltage Park any suggestions, enhancement requests, comments, feedback or other input relating to the Voltage Park Property (“Feedback”), Customer hereby assigns to Voltage Park all right, title and interest in and to such Feedback (including all intellectual property rights embodied therein or related thereto).

e. Customer-Provided Products

Customer is solely responsible for: (i) obtaining and maintaining all rights, licenses and credentials necessary to use all Customer-Provided Products; and (ii) installing, operating, updating and otherwise maintaining such Customer-Provided Products. Voltage Park does not provide any warranties, guaranties or indemnification regarding any Customer-Provided Products or the operation thereof in connection with the Services. Voltage Park does not have any responsibility or liability for any exchange of data or other interaction occurring between Customer and any provider of any Customer-Provided Product.

f. Open Source Software

The Services may be provided with, or facilitated by, certain open source software. The use of such open source software is subject to the applicable open source license terms. By using the Services, Customer agrees to comply with and be bound by the above terms and conditions governing the use of certain open source software programs and acknowledges that the term “Services” as used in this Agreement does not include such open source software.

• 5. Data; Security

a. Backups and Storage

Voltage Park shall have no obligation to maintain Customer Property, backup Customer Property or otherwise store Customer Property on behalf of Customer or any User. Customer is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of the Customer Property, which may include the use of encryption technology to protect Customer Property from unauthorized access and routine archiving. To the fullest extent permitted by applicable law or regulation, Voltage Park shall have no liability for any data loss, unavailability or other consequences related to the foregoing. Customer shall be responsible and liable for the activities of any person that gains access to Customer Property or the Services as a result of Customer’s failure to comply with the obligations of this subsection.

b. Processing of Customer Property

To the extent that Customer Property includes information defined as “personal data” or “personal information” (“Personal Data”) under applicable laws and regulations that relate to data protection, privacy or the use of Personal Data (“Privacy Laws”), the Parties acknowledge that Voltage Park is a “service provider,” “processor” or any similar term provided under applicable Privacy Laws and Customer is the “controller,” “business,” or any similar term provided under Privacy Laws. Voltage Park shall only process Personal Data included in the Customer Property: (i) for the limited and specific purpose of providing the Services or as instructed by Customer in writing from time to time; (ii) as otherwise expressly permitted by this Agreement; or (iii) as required by law or regulation, legal process or any governmental or regulatory authority. To the extent required by applicable US Privacy Laws, Voltage Park is prohibited from: (x) selling the Personal Data or sharing the Personal Data for cross-context behavioral advertising purposes; (y) retaining, using or disclosing the Personal Data outside of the direct business relationship between Voltage Park and Customer and for any purpose other than for the specific purpose of performing the Services; and (z) combining the Personal Data received from, or on behalf of, Customer with any Personal Data that may be collected from Voltage Park’s separate interactions with the individual(s) to whom the Personal Data relates or from any other sources, except to perform a business purpose or as otherwise permitted by Privacy Laws.

c. Customer Data Responsibilities

Customer shall comply with, and represents and warrants that (i) all Personal Data was collected and at all times processed and maintained by or on behalf of Customer in compliance with all Privacy Laws, including with respect to any obligations to provide notice to and/or obtain consent from individuals; and (ii) Customer has complied with all Privacy Laws in disclosing the Personal Data to Voltage Park and enabling Voltage Park to process the Personal Data as set out in this Agreement. Customer is solely responsible and liable for: (x) the processing of all Customer Property; (y) any data processed by any User arising from or related to the Services; and (z) any data displayed, disclosed, generated or published from or in connection with any use of the Services. Without limiting anything to the contrary herein, Customer will not collect, use, store, transmit, disclose and otherwise process any Personal Data in connection with the Services that is subject to any non-US Privacy Laws (including the General Data Protection Regulation (GDPR) or the Data Protection Act 2018 (UK)).

d. Security

Each Party shall endeavor to notify the other Party without undue delay after becoming aware of any Data Incident. To the extent required by applicable Privacy Laws, and taking into account the nature of the processing, Voltage Park shall reasonably assist Customer to enable Customer to fulfill its notification obligations to Users or relevant authorities in connection with a Data Incident. Customer shall be responsible for any reasonable costs arising from Voltage Park’s provision of such assistance unless such Data Incident is determined to have been caused by Voltage Park (or its Sub-processors) in which case Voltage Park shall provide such assistance at no charge.

e. Usage Information

Customer acknowledges that Voltage Park monitors the performance and usage of the Services by its customers, including Customer and Users, combines this data (“Usage Information”) with other information, and uses such combined data in an aggregate, de-identified and anonymous manner for its business purposes. Examples of aggregate data include compiling statistical and performance information related to the operation of the Services, determining usage trends, performing analytics and developing and improving the Services and Voltage Park’s other products and services. Voltage Park retains all intellectual property rights in and to Usage Information.

• 6. Confidentiality

a. Confidentiality

Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind. Each Receiving Party will only use Confidential Information of the Disclosing Party to exercise its rights or perform its obligations under this Agreement. Each Receiving Party may only disclose Confidential Information of the Disclosing Party upon the Disclosing Party’s prior written consent or as otherwise provided herein. A Receiving Party may disclose Confidential Information of the Disclosing Party to the Receiving Party’s Affiliates, officers, directors, employees, contractors and agents who need to know such information in connection with such Receiving Party’s exercise of its rights or performance of its obligations hereunder and who are bound by written agreements requiring the protection of such Confidential Information.

b. Compelled Disclosure

If a Receiving Party is compelled by law or regulation, legal process or any governmental or regulatory authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (if legally permitted) and use reasonable efforts, at the Disclosing Party’s cost, to assist the Disclosing Party in filing such documents and taking such actions as are required to prevent or limit such disclosure.

• 7. Warranties; Disclaimers

a. Mutual Warranties

Each Party represents and warrants to the other Party that it has the legal power and authority to enter into this Agreement.

b. Customer Warranties

Customer represents and warrants to, and covenants with, Voltage Park that at all times it: (i) owns, or has all necessary rights and authorizations to process or otherwise use or handle, Customer Property; and (ii) will, and will ensure that all Users, comply with the terms of this Agreement (including the Acceptable Use Policy) in connection with any access to or use of the Services.

c. Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE SERVICES ARE PROVIDED “AS-IS”; (ii) VOLTAGE PARK MAKES NO ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO CUSTOMER OR ANY USER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, (iii) VOLTAGE PARK HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; AND (iv) VOLTAGE PARK’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED TO SUPPLYING THE APPLICABLE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE APPLICABLE SERVICES AGAIN. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK ACTIVITIES.

• 8. Indemnification

a. Voltage Park Indemnification

Voltage Park will indemnify, defend and hold Customer and its employees, directors, officers, contractors, representatives and assigns (collectively, the “Customer Indemnified Parties”) harmless from and against any losses, liabilities and damages suffered or incurred by any Customer Indemnified Party that result from any actions, suits, demands or claims (collectively, “Claims”) brought by any third party against any Customer Indemnified Party alleging that the use of the Services in accordance with the terms of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party. Without limiting the foregoing, in the event that any portion of the Services are likely to, in Voltage Park’s sole opinion, or does become the subject of any such Claim, Voltage Park may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item; (ii) substitute a functionally equivalent non-infringing replacement for such item; (iii) modify such item to make it non-infringing and functionally equivalent; or (iv) terminate this Agreement (including the Order) and refund to Customer any Fees paid for credits to be used to obtain the Services that have not been used as of the effective date of termination. Notwithstanding the foregoing, Voltage Park shall have no responsibility or liability for any such Claim to the extent arising from: (1) any Customer Property; (2) use of the Services in combination with any software, hardware, network or system not supplied by Voltage Park if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Voltage Park); or (4) Customer’s violation of applicable law or regulation, third party rights or this Agreement or use of the Services beyond the license expressly granted in this Agreement (collectively, “Excluded Claims”). The rights and remedies set forth in this Section 8.a are the sole obligations of Voltage Park and the exclusive remedies available to Customer for any Claim that the Services infringe any patent, copyright, trademark or trade secret right of such third party.

b. Customer Indemnification

Customer will indemnify, defend and hold Voltage Park and its Affiliates, and their respective employees, directors, officers, contractors, representatives and assigns (collectively, the “Voltage Park Indemnified Parties”) harmless from and against any losses, liabilities and damages suffered or incurred by any Voltage Park Indemnified Party that result from any Claims brought by any third party and any costs and expenses (including reasonable attorneys’ fees) incurred by any Voltage Park Indemnified Party in connection with any such Claim, to the extent such Claim arises out of or results from: (i) any allegation that any Customer Property infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party; (ii) Customer’s breach of this Agreement; or (iii) any Excluded Claim. The rights and remedies set forth in this Section 8.b are the sole obligations of Customer and the exclusive remedies available to Voltage Park for any Claim that the Customer Property infringes any patent, copyright, trademark or trade secret right of such third party.

c. Indemnification Procedures

The indemnifying Party’s obligations under this Section 8 are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any Claim subject to indemnification under this Section 8 (provided that any delay or failure in doing so will not relieve the indemnifying Party of its obligations hereunder except to the extent that its ability to defend such Claim was materially prejudiced by such delay or failure), (ii) giving the indemnifying Party sole control of the defense or settlement of the Claim, and (iii) cooperating in the investigation and defense of such Claim(s) at the indemnifying Party’s expense. The indemnifying Party shall not settle or consent to an adverse judgment in any such Claim that adversely affects the indemnified Party’s rights or interests (except to the extent affecting Customer’s continued use of the Services), requires an admission of liability by the indemnified Party or requires the indemnified Party to pay any amounts not fully indemnified by the indemnifying Party, in each case, without the prior express written consent of the indemnified Party, which shall not be unreasonably withheld.

• 9. Limitation of Liability

a. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, IN NO EVENT SHALL VOLTAGE PARK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE FIRST CLAIM OR CAUSE OF ACTION GIVING RISE TO LIABILITY UNDER THIS AGREEMENT AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

b. Exclusion of Consequential and Related Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, IN NO EVENT SHALL VOLTAGE PARK HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR: (i) ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER OR ANY THIRD PARTY (INCLUDING ANY USER) TO THE EXTENT THAT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAILURE OF CUSTOMER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.

• 10. Term and Termination

a. Term of Agreement

This Agreement commences on the first date that the Order becomes binding upon Customer and Voltage Park as effectuated by Customer’s order moving to “active” status in the Platform pursuant to the Voltage Park Bid Terms (“Effective Date”) and shall remain in effect until terminated according to its terms (the “Term”).

b. Termination Due To Higher Bid.

If, during the Term, Customer is outbid, Customer will be notified of the same and will have 36 hours to match the higher bid in order to preserve the Term of this Agreement. If Customer does not so elect to match the higher bid, this Agreement will automatically terminate upon expiration of such 36 hour period.

c. Termination For Material Breach

Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches any of the provisions of this Agreement and, if such breach is capable of being cured, fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach.

d. Effect of Termination

Upon termination: (i) all rights granted to Customer under this Agreement will immediately terminate; (ii) Customer and its Users must immediately cease all access to and use of the Services; (iii) Customer shall return or destroy (at Voltage Park’s election) all Voltage Park Property (including Voltage Park’s Confidential Information); and (iv) all Fees still owed to Voltage Park at the time of such termination shall become immediately due and payable. Upon termination, Voltage Park may delete the Customer Property in its possession without liability; provided, however, that Voltage Park may maintain a copy of the Customer Property in accordance with Voltage Park’s data retention practices and as otherwise required by applicable laws and regulations.

e. Surviving Provisions

Any provision which by its nature is intended to survive the termination or expiration of this Agreement, including, without limitation Sections 1, 3, 4.a, 4.b, 4.d, 6-9, 10.b, 10.c, 10.d, 10.e and 11, shall survive such expiration or termination. Termination or expiration of this Agreement shall not affect any obligation or liability accrued or arising prior to such termination or expiration.

• 11. Miscellaneous Provisions

a. Relationship

This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Voltage Park will be considered an independent contractor when performing any Services hereunder.

b. Entire Agreement; Priority

This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement (including any non-disclosure agreement and the Voltage Park Bid Terms entered into by the Parties prior to the Effective Date, provided that (1) such non-disclosure agreement will continue to apply with respect to any confidential information disclosed prior to the Effective Date and (2) the Voltage Park Bid Terms will continue to apply in respect of all bids by Customer to obtain Services from Voltage Park). Unless expressly stated otherwise in this Agreement, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding the Order) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.

c. Modification; Waiver

Except as otherwise provided in this Agreement, this Agreement may not be modified or amended except as agreed in writing by authorized representatives of the Parties. The failure of any Party in any one or more instances to insist upon strict performance of any provisions of this Agreement, or to exercise any option or remedy which is conferred by this Agreement, shall not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provisions, options or remedies on any future occasion. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of the Party granting the waiver.

d. Governing Law

The Parties hereby agree that any disputes under this Agreement will be resolved pursuant to the laws of the State of Delaware, without giving effect of any conflicts of laws principles.

e. Dispute Resolution Procedures

Except as provided below, for any dispute arising out of, or relating to, this Agreement or breach of this Agreement, or the transactions contemplated hereby, the Parties will use good faith efforts to promptly resolve the matter informally before resorting to more formal means of resolutions. The Parties hereby agree to submit any dispute they cannot resolve informally to final and binding arbitration. The arbitration will be conducted in the State of Delaware, using the English language, before a single neutral arbitrator under the auspices of JAMS Streamlined Arbitration Rules and Procedures (for claims under $250,000.00) or JAMS Comprehensive Arbitration Rules and Procedures (for claims over $250,000.00). The arbitrator will follow Delaware law in adjudicating the dispute. Interpretations of this Agreement, including determinations of unconscionability and the interpretation of this Section 11.e, will be determined by the arbitrator selected through this provision. The determinations of the arbitrator shall be final and shall not be subject to judicial review; provided, however, that any award or determination rendered by the arbitrator may be entered in any court of competent jurisdiction. The Parties shall share equally the costs of arbitration, including the costs of transcribing the arbitration, but each Party shall bear its own attorneys’ fees and related costs, unless otherwise provided by law or regulation. Except to the extent necessary to confirm an award or as may be required by applicable laws or regulations, neither a Party nor an arbitrator may disclose the existence, content or results of an arbitration without the prior written consent of the other Parties. Each Party expressly and irrevocably waives any claim or defense in any arbitration or proceeding based on any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine or theory. Each Party irrevocably waives any and all right to trial by jury in any proceeding arising out of or related to this Agreement. Any proceeding to resolve a dispute hereunder will be conducted solely on an individual basis, and neither Party will seek to have any dispute heard as a class action or class arbitration.

f. Injunctive Relief The Parties acknowledge and agree that any action for equitable relief or any other action that may not be submitted to arbitration under applicable laws or regulations, including the enforcement of any arbitration ruling, shall be tried by a court of competent jurisdiction located in the State of Delaware. To that end the Parties hereby submit to the jurisdiction of the State of Delaware for this limited purpose.

g. Assignment

Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, that Voltage Park may, without the consent of Customer: (i) subcontract or delegate its obligations under this Agreement; and (ii) assign this Agreement, together with its rights and obligations hereunder, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or shares. Any attempt by a Party to assign this Agreement or its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

h. Notices

Except as provided in this Section, all notices under this Agreement to Customer shall be in writing and shall be delivered to the address indicated in Customer’s Account. Notices to Voltage Park shall be addressed to: Voltage Park, Inc., 161 W 25th Ave. Suite #202, San Mateo CA 94403, with a copy to [email protected]. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. Notwithstanding the foregoing, Voltage Park may provide all business and product-related communications (e.g., release notes for product updates, privacy policy updates, critical security updates and information on critical bugs and outages) to Customer by email, posting on the Services or other electronic means.

i. Anti-Corruption

Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Voltage Park employees, agent or representative in connection with this Agreement. Customer will promptly notify Voltage Park if it offers or receives any such improper payment or transfer in connection with this Agreement.

j. Export Control

You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.

k. Force Majeure; Failures to Perform

Voltage Park shall not be liable under this Agreement for delays, failures to perform, damages or losses caused or occasioned by or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, equipment malfunctions, loss of access to or degradation networks, equipment or data centers used to provide the Services, unavailability of transportation, acts or omissions of third parties or any other cause beyond its reasonable control. For the avoidance of doubt and without limiting the generality of the foregoing, Customer acknowledges that the Services are dependent on the performance of third parties, including network and data center providers, for which Voltage Park has limited control. While Voltage Park will use reasonable efforts to resolve issues with the Services caused by such third parties, Voltage Park will not be in breach of this Agreement or liable hereunder as a result of the acts or omissions of such third parties.

l. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

m. Interpretation

The titles, headings and captions contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Unless otherwise indicated to the contrary herein by the context or use thereof, for the purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the terms “shall” and “will” are synonyms as used in this Agreement and each term indicates that the corresponding Party must perform the obligation that is subject to such term. The Parties intend this Agreement 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. Unless otherwise expressly stated herein, the rights and remedies of the Parties are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.

n. No Third Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their respective successors and assigns and, except as provided in Section 8, nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy.

Exhibit A

Acceptable Use Policy

Except as expressly set out in this Agreement, Customer will not, and will not permit any User or third party to:

1. sell, resell, rent, lease or otherwise distribute any portion of the Services or use the Services to provide a service bureau;
2. use the Services other than in accordance with the Documentation or in a manner that interferes with, unduly burdens or disrupts the integrity, performance or availability of the Services (for example, by conducting load tests or penetration tests);
3. attempt to gain unauthorized access to the Services or the Infrastructure Platform or to Voltage Park’s or its third party suppliers’ related facilities, systems or networks;
4. access or use any portion of the Infrastructure Platform that is not expressly identified in the Order;
5. access or use any portion of the Services for the purpose of building a similar or competitive product or service or monitor the Services for any benchmarking or competitive purpose;
6. introduce, disseminate or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam or malicious code using the Services;
7. copy, modify, translate or create derivative works of any Voltage Park Property;
8. reverse engineer, disassemble or decompile any software included in the Voltage Park Property, except as required under applicable law or regulations;
9. use the Services for crypto-mining;
10. use the Services for any unlawful purpose;
11. submit any sensitive personal data or information to the Services (including government issued identification numbers, financial account information, payment card information and personal health information);
12. alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Services;
13. publicly display any content through use of the Services;
14. allow any person who is not an employee or independent contractor of the Customer to access or use the Services; or
15. access or use the Services for any purpose not expressly set out in this Agreement.

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