Please read these Terms of Service (the “Terms”) and our Privacy Policy carefully because they govern Registered User use of the website located at https://compute.exchange/ (the “Site”) and the compute marketplace and related services accessible via the Site offered by Compute Exchange Inc. (“CEX”). To make these Terms easier to read, the Site, marketplace, and our services are collectively called the “CEX Services.” Unless otherwise provided below, the Terms apply to any user (referred to as “you” in the Terms) of the CEX Services including Customers and Sellers (as each is defined below).

IMPORTANT NOTICE REGARDING ARBITRATION

WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CEX THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 17 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 16 (GOVERNING LAW AND FORUM CHOICE) WILL APPLY INSTEAD.

1. Agreement to Terms

This is a binding agreement between CEX and the user’s entity. By using the CEX Services, you agree to be bound by these Terms. If you don’t agree, you are not authorized to use the CEX Services. The Registered User accessing the CEX Services on behalf of a company or other legal entity represents and warrants that it has the authority to bind that entity to these Terms.

2. Privacy Policy

Please review our Privacy Policy, which also governs Registered User use of the CEX Services, for information on how we collect, use and share their information.

3. Changes to These Terms or the CEX Services

We may update the Terms from time to time in our sole discretion. If we do, we’ll let Registered Users know by posting the updated Terms on the Site and/or sending other communications, at least thirty (30) days prior to the effective date. If a Registered User continues to use the CEX Services after the updated Terms take effect, it means they accept the changes. We may change or discontinue all or any part of the CEX Services at any time and without notice.

4. Authorized Users

(a) Eligibility

You may use the CEX Services only if you are capable of forming a binding contract with CEX, and not otherwise barred under applicable law. You represent and warrant that you are not a resident, national, or agent of any Restricted Territory and are not a Restricted Person and do not intend to transact with any Restricted Person.

(b) Account Creation

For most features, you will need to create an account (“Account”) and become a “Registered User.” A Registered User must provide accurate, complete and current information. Each Account is personal and must be created on an individual basis. Accounts cannot be shared or used jointly. Each Registered User is solely responsible for maintaining the confidentiality and security of their Account information. CEX is not liable for any unauthorized use resulting from a Registered User’s failure to protect its Account information.

5. CEX Services

(a) General

The CEX Services provide a platform for Sellers to list their compute resources (“Compute”) on the Compute Marketplace for Customers to review and/or purchase. A “Seller” is a Registered User selling an agreement to provide Compute. A “Customer” is a Registered User who purchases Compute. CEX itself does not license any Compute through the CEX Services. A “Provider” is a Registered User who provides Compute to a Customer per the Compute Service Terms.

(b) Financial Terms

There are fees associated with use of the CEX Services. Please visit the Fee Page for details. Registered User is solely responsible for all costs incurred and determining, collecting, reporting and paying all applicable Taxes. Customers are responsible for payments for Compute. Providers are responsible for Commission Payments to CEX.

(c) Payments

Registered User expressly authorizes CEX (and its payment processors) to charge Registered User’s payment card for all purchases. CEX accepts the forms of payment stated on the CEX Services and Fee Page. Completion of a payment transaction is contingent upon: (i) providing complete information, (ii) authorization by the card company, and (iii) acceptance of the payment.

(d) Cancellation of Payment

CEX may, in its sole discretion, cancel a payment at any time, including for: (i) breach of applicable law; (ii) breach of these Terms; (iii) suspected fraud; (iv) excessive disputes or high reversal rates; or (v) failure to cooperate in an investigation.

(e) Test Features

We may offer Beta CEX Services. Registered User acknowledges that Beta CEX Services may not operate properly, may contain errors, and information obtained may not be accurate. We are under no obligation to release a live version and may abandon development at any time.

(f) Representations

Registered User represents and warrants that: (i) it will not engage in any transaction intended to disintermediate CEX or circumvent the CEX Services; and (ii) it acknowledges that CEX does not provide services subject to a regulatory license.

6. Compute Marketplace

The CEX Services offer a platform for Customers to identify and purchase Compute from Sellers (“Compute Marketplace”). Customers submit bids (“Bids”) to participate in an auction (the “Auction”). By participating, each Registered User agrees to the Order Form and the CEX E-Sign Disclosure.

(a) Bidding

Customers must follow the Bidding steps set forth through the CEX Services. The Auction begins and ends on the dates and times specified (the “Bidding Period”). Once a Bid is submitted, it may be updated until the time set forth in the Auction rules. Following the end of a No Cancel Period, all Bids are irrevocable.

(b) Disclaimer

CEX is not responsible for late, lost, delayed, damaged, incomplete, illegible, misdirected or undeliverable Bids; theft, destruction, unauthorized access to or alterations of User Materials; or phone, electrical, network, computer, or software malfunctions.

(c) Market Data

CEX retains all right, title, and interest in CEX Market Data. This includes pricing information, Auction volumes, Bid amounts, Auction prices, transaction timestamps, and any derived metrics, statistical analysis, price trends, and market patterns. A Registered User shall not copy or redistribute any CEX Market Data without CEX’s express written consent.

(d) Payment Processor

CEX may use a third-party payment processor as designated from time to time. A Registered User’s use of the Compute Marketplace may be subject to additional terms provided by such payment processor.

(e) Terms Applicable to Sellers

Sellers must create a Listing for their Compute. Seller is responsible for all Listing Information. Seller represents and warrants that it has all necessary rights and permissions. During the “No Cancel Period” Seller is prohibited from delisting, publishing elsewhere, or cancelling a Listing that has received a Bid. The Compute Service Terms apply to any Compute a Provider licenses through the CEX Services. CEX is not a party to the Compute Service Terms.

(f) Terms Applicable to Customers

Customer acknowledges and agrees that the Compute Service Terms will apply to any Compute obtained through the CEX Services. Customer is solely responsible for evaluating the Compute Service Terms. During the “No Cancel Period,” a Customer is prohibited from cancelling or amending a Bid (except to increase it). Any Bid not cancelled prior to the No Cancel Period is binding and irrevocable.

(g) Terms Applicable to Resellers

If a Customer decides to resell Compute acquired through the CEX Services, such Customer is a “Reseller.” Reseller may resell Compute less what has been consumed, through the CEX Services only, transferred “as-is.” Reseller must repost the original Listing and amount consumed. Reseller shall pay any applicable CEX Reprovisioning Fees and has no further obligation to the subsequent Customer.

7. Feedback

If a Registered User chooses to submit Feedback (suggestions, comments, ideas, proposals), they agree that we are free to use it without any restriction or compensation.

8. Intellectual Property

(a) Posting User Materials

Anything (other than Feedback) that Registered Users post or make available through the CEX Services is referred to as “User Materials.” CEX does not claim any ownership rights in any User Materials.

(b) Permissions to Registered User Materials

By uploading User Materials, a Registered User grants to CEX a perpetual, irrevocable, non-exclusive, transferable, worldwide, royalty-free, fully paid-up license to use, copy, modify, create derivative works, distribute, publicly display, and publicly perform its User Materials in connection with operating and providing the CEX Services. CEX owns all right, title and interest in Aggregate Data.

(c) Your Responsibility for User Materials

A Registered User is solely responsible for all its User Materials and represents that it has all rights necessary to grant the license rights and that its User Materials will not infringe third party rights or violate applicable law.

(d) Removal of User Materials

A Registered User can remove its User Materials by specifically deleting them through the CEX Services. We may retain User Materials as required by applicable law or permitted under our Privacy Policy.

9. General Prohibitions and CEX’s Enforcement Rights

Registered Users agree not to: (a) post infringing, fraudulent, defamatory, or harmful User Materials; (b) engage in market manipulation; (c) circumvent technological protections; (d) use, display, mirror or frame the CEX Services without consent; (e) access non-public areas; (f) probe or test system vulnerabilities; (g) use automated tools other than those provided by CEX; (h) send unsolicited communications; (i) use the CEX Services for unauthorized commercial purposes; (j) forge packet headers; (k) reverse engineer CEX software; (l) interfere with access; (m) collect personal information without permission; (n) impersonate any person or entity; (o) violate any applicable law; (p) use Compute for crypto-mining; or (q) encourage or enable any of the foregoing.

CEX reserves the right to remove content, reject or cancel Bids, delay orders, or terminate access at its sole discretion. We may investigate violations and cooperate with law enforcement.

10. Copyright Policy

CEX respects copyright law and expects its users to do the same. It is CEX’s policy to terminate users who repeatedly infringe the rights of copyright holders.

11. Links to Third Party Websites or Resources

The CEX Services may allow access to third-party websites or resources. We provide access only as a convenience and are not responsible for the content, products or services available from those resources.

12. Termination

We may suspend, disable, or terminate a Registered User’s access to the CEX Services at any time and without notice, including if necessary to protect the integrity of the CEX Services or if the user is violating these Terms. Registered Users acknowledge no liability or refund obligation will arise from such termination. Upon termination, Sections 5 (for payments due prior to termination), 6(c), and 7–18 will survive.

13. Warranty Disclaimers

(a) THE CEX SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. CEX DISCLAIMS ALL WARRANTIES INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

(b) WE MAKE NO WARRANTY AS TO THE IDENTITY, CHARACTER OR CONDUCT OF REGISTERED USERS AND ASSUME NO RESPONSIBILITY FOR A REGISTERED USER’S COMPLIANCE WITH THESE TERMS OR ANY APPLICABLE LAWS. WE EXPLICITLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY REGISTERED USER.

14. Indemnity

Each Registered User will indemnify, defend and hold CEX and its officers, directors, employees and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs arising out of (a) their access to or use of the CEX Services, (b) their User Materials, or (c) their violation of these Terms.

15. Limitation of Liability

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER CEX NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE CEX SERVICES.

(b) IN NO EVENT WILL THE AGGREGATE TOTAL LIABILITY OF CEX EXCEED THE AMOUNTS REGISTERED USER HAS PAID OR IS PAYABLE TO CEX FOR USE OF THE CEX SERVICES OR ONE HUNDRED U.S. DOLLARS ($100), WHICHEVER IS APPLICABLE.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CEX AND REGISTERED USER.

16. Governing Law and Forum Choice

These Terms will be governed by the Federal Arbitration Act and the laws of the State of Delaware, without regard to conflict of laws provisions. The exclusive jurisdiction for all non-arbitrable Disputes will be the courts located in Santa Clara County, California.

17. Dispute Resolution

(a) Mandatory Arbitration of Disputes

Any dispute, claim or controversy arising out of or relating to these Terms (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated proceeding. Registered User and CEX each waive the right to a trial by jury or to participate in a class action.

(b) Exceptions

As limited exceptions: (i) either party may seek to resolve a Dispute in small claims court if it qualifies; and (ii) each party retains the right to seek injunctive or other equitable relief to prevent infringement or misappropriation of intellectual property rights.

(c) Conducting Arbitration

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules then in effect. A party wishing to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party.

(d) Arbitrator Authority

The arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

(e) Arbitration Costs

Payment of all fees will be governed by the AAA Rules. We won’t seek to recover administration and arbitrator fees unless the arbitrator finds the Dispute frivolous.

(f) Injunctive and Declaratory Relief

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief. Issues of public injunctive relief must be litigated in a civil court and shall be stayed pending arbitration of individual claims.

(g) Class Action Waiver

REGISTERED USER AND CEX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If this provision is found unenforceable, the entirety of this Dispute Resolution section shall be null and void.

(h) Severability

With the exception of the Class Action Waiver, if any part of these Terms is found invalid or unenforceable, the other parts will still apply.

18. General Terms

(a) Reservation of Rights

CEX and its service providers exclusively own all right, title and interest in the CEX Services, including all associated intellectual property rights. Registered User agrees not to remove, alter or obscure any proprietary rights notices.

(b) Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between CEX and Registered User regarding the CEX Services. Registered User may not assign or transfer these Terms without CEX’s prior written consent. CEX may freely assign or transfer these Terms without restriction.

(c) Notices

Notices will be given via email or by posting to the CEX Services. The date of receipt will be deemed the date on which such notice is transmitted.

(d) Waiver of Rights

CEX’s failure to enforce any right or provision will not be considered a waiver. The waiver of any right will be effective only if in writing and signed by a duly authorized representative of CEX.

19. Contact Information

If Registered User has any questions about these Terms or the CEX Services, please contact CEX at [email protected].