These Marketplace Terms (these “Terms”) constitute a binding legal agreement between The Compute Exchange Inc., a Delaware corporation (“TCEX”, “we”, or “us”), and each Market Participant (as defined below). “Market Participant” means the company or other legal entity on whose behalf an individual accepts these Terms, whether such entity uses the Services as a purchaser of Compute (a “Customer”) or as a seller of Compute (a “Provider”), or both. Except as otherwise agreed in writing between TCEX and a Market Participant, these Terms govern each Market Participant’s use of all services offered by TCEX as well as all transactions, quotations, and inquiries relating to potential quotations or transactions (in each case) that are facilitated by such services (collectively, the “Services”).

BY USING THE SERVICES, YOU (THE INDIVIDUAL READING AND ACCEPTING THESE TERMS) REPRESENT AND WARRANT THAT: (A) YOU HAVE READ AND UNDERSTAND THESE TERMS IN THEIR ENTIRETY; (B) YOU HAVE THE LEGAL AUTHORITY TO BIND THE MARKET PARTICIPANT ON WHOSE BEHALF YOU ARE ACTING; AND (C) THE MARKET PARTICIPANT ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS. IF THE MARKET PARTICIPANT DOES NOT AGREE TO THESE TERMS, THE MARKET PARTICIPANT MUST NOT ACCESS OR USE THE SERVICES, AND NEITHER THE MARKET PARTICIPANT NOR ANY OF ITS REGISTERED USERS ARE PERMITTED TO ACCESS OR USE THE SERVICES. REFERENCES TO “YOU” IN THIS ACCEPTANCE BLOCK AND IN SECTION 8(c) REFER TO THE INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF A MARKET PARTICIPANT. ALL OTHER REFERENCES TO OBLIGATIONS, RIGHTS, REPRESENTATIONS, AND COVENANTS IN THESE TERMS ARE THOSE OF THE APPLICABLE MARKET PARTICIPANT (WHETHER CUSTOMER OR PROVIDER), UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE.

IMPORTANT NOTICE REGARDING ARBITRATION

WHEN THE MARKET PARTICIPANT AGREES TO THESE TERMS, THE MARKET PARTICIPANT IS AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN THE MARKET PARTICIPANT AND TCEX THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 13 “ARBITRATION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF THE MARKET PARTICIPANT IS ORGANIZED IN A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 13 WILL NOT APPLY TO SUCH MARKET PARTICIPANT BUT THE PROVISIONS OF SECTION 14(f) (GOVERNING LAW) WILL APPLY INSTEAD.

TCEX may update these Terms from time to time in its sole discretion. If TCEX does so, TCEX will post the updated Terms on the Site and/or otherwise notify Market Participants. “Users” means the employees, contractors, agents, and representatives of a Market Participant (including the individual who accepted these Terms on such Market Participant’s behalf) who access the Services on such Market Participant’s behalf, under such Market Participant’s account, or with authentication credentials issued by or to such Market Participant. If a Market Participant or any of its Users continues to use the Services after the updated Terms take effect, such Market Participant is deemed to have accepted the changes. TCEX may change or discontinue all or any part of the Services at any time and without notice.

1. Services

1. General. The Services include any means for facilitating transactions in computing capacity, computing infrastructure, and associated resources (including processing, memory, storage, and networking) on a subscription, on-demand, reserved, spot, or as-a-service basis (“Compute”) that TCEX may offer from time to time. TCEX may, in its sole discretion, choose the manner and protocol by which such transactions are facilitated (whether through brokering transactions, disseminating requests for quotations (“RFQs”) and responsive quotations, matching orders, or otherwise) (the “Procurement Process”). A “Provider” is any legal entity that offers to sell Compute through the Services. Each Market Participant acknowledges and agrees that TCEX: (i) is not a provider, seller, or reseller of, Compute; (ii) does not own, operate, host, control, provision, maintain, or guarantee any Compute a Customer may purchase (or attempt to purchase) as part of the Services; (iii) makes no representation or warranty regarding the availability, performance, security, suitability, legality, or quality of any such Compute; and (iv) to the fullest extent permitted by law, excludes all liability TCEX may have in connection with such Compute.
   
   
   

2. Financial Obligations. Customers are responsible for payments to Providers in connection with any purchase of Compute brokered or facilitated by, or otherwise arising from, Customer’s use of the Services (each, a “Compute Transaction”) for Compute. For clarity, TCEX does not provide Compute and is not paid by Customers for Compute.
   
   
   

3. Administration of Procurement Process and relationship between the parties. TCEX maintains exclusive control over every aspect of each Procurement Process. Without limiting the foregoing, each Market Participant acknowledges and agrees that TCEX may, in its sole discretion: (i) suspend, terminate or vary any aspect of a Procurement Process at any time (including by modifying documentation issued in connection with a Procurement Process, such as RFQs, and any details related to the Procurement Process); (ii) evaluate quotations or any other materials received from a Provider using any criteria or information TCEX deems fit; (iii) disregard any given quotation or other materials provided by a Provider; and (iv) elect not to provide a Market Participant with a particular quotation, or any quotations, TCEX receives from a Provider, in each case with no obligation or duty to act in, or have regard to, such Market Participant’s interests. Nothing in these Terms, and no conduct of the parties, shall be deemed to create any client, advisory, agency, partnership, joint venture, fiduciary, employment, management or franchise relationship between any Market Participant and TCEX in connection with the Services.
   
   
   

4. Market Data. TCEX retains all right, title, and interest (including any intellectual property rights) in and to any pricing information, transaction volumes, bid amounts, prices, transaction timestamps, any derived metrics, statistical analysis, price trends and market patterns, and any other similar market-related information generated, collected or otherwise processed by TCEX in connection with the Services (but excluding any Customer Data) (“Market Data”). To the extent that a Market Participant is provided with any Market Data, such Market Participant and its Users shall only use such Market Data for the purpose of considering and entering into transactions to purchase or sell Compute as part of the Services. Each Market Participant shall not, and shall ensure that its Users do not, use, disclose or do anything else with Market Data without TCEX’s prior written consent.
   
   
   

5. Trading Protocols. Where a Market Participant elects to use a trading protocol for the purchase or sale of Compute that is made available via the Services (e.g., requests for quotations, auctions, etc.), such Market Participant agrees to comply with all requirements for the applicable trading protocol that TCEX has posted on the Services (or otherwise reasonably notified to such Market Participant) at the time of its participation.
   
   
   

6. Services Not Regulated. Each Market Participant acknowledges and agrees that the Services are not provided pursuant to, and are not required to be provided under, any regulatory licensing regime.

2. Compute Services Terms and Provider Agreement.

1. The “Compute Services Terms” set forth at https://compute.exchange/compute-service-terms govern each Compute Transaction; provided, however, that if Provider and Customer enter into a separate written agreement relating to such Compute Transaction (a “Provider Agreement”), then the terms of the Provider Agreement will control with respect to any conflict between the Provider Agreement and the Compute Services Terms. However, in the event of any conflict between a Provider Agreement and these Terms, these Terms will control. The Compute Services Terms, together with any applicable Provider Agreement, shall collectively constitute the “Compute Services Agreement” governing the applicable Compute Transaction.
   
   
   

2. Notwithstanding anything to the contrary in a Provider Agreement, Provider or Customer, as applicable, must provide the other at least 14 days’ prior written notice before cancelling a Compute Transaction that would otherwise automatically renew or be extended on a month-to-month basis (but, for clarity, the foregoing will not be construed to reduce the number of prior days’ notice required for any such cancellation that may otherwise be required under the applicable Provider Agreement or the Compute Services Terms). 
   
   
   

3. Each Market Participant hereby covenants to TCEX that the Market Participant will comply with all terms and conditions of, and fulfill all of its obligations under, each Compute Services Agreement to which it is a party.

3. Termination

1. TCEX Termination. TCEX may suspend, disable, or terminate a Market Participant’s access to the Services at any time and without notice, including without limitation if necessary to protect the integrity of the Services or if such Market Participant is violating these Terms. TCEX will have no liability for the exercise of any of the foregoing rights.
   
   
   

2. Survival. The following provisions will survive any termination or expiration of these Terms: Section 1(d) (Market Data), Section 2(c) (Compliance Covenant), Section 3(b) (Survival), Section 4 (Prohibited Conduct), Section 5 (Non-Circumvention), Section 6 (Resale of Compute), Section 7 (Compute Transaction Protections), Section 9 (Disclaimers), Section 10 (Intellectual Property), Section 11 (Indemnity), Section 12 (Limitations of Liability), Section 13 (Arbitration), and Section 14 (Miscellaneous).

4. Authorized Users

Each Market Participant shall not, and shall not permit any User or third party to, directly or indirectly:

1. submit, post, or make available through the Services any quotations, requests for quotations, or other content (other than Feedback) (“Customer Content”) that are deceptive, misleading, manipulative, fraudulent, infringing, or unlawful;
   
   
   

2. use the Services to purchase or sell Compute on behalf of any third party (except for the authorized resale of Compute pursuant to these Terms);
   
   
   

3. engage in any form of market abuse or manipulation in connection with the Services, including wash trading, spoofing, layering, or any activity intended to create a false or misleading appearance of market activity, price, or liquidity;
   
   
   

4. circumvent, disable, interfere with, or otherwise attempt to bypass any technical, operational, or security measures or restrictions applicable to the Services;
   
   
   

5. probe, scan, test, or attempt to discover vulnerabilities in the Services or any related systems, networks, or infrastructure, except as expressly authorized in writing by TCEX;
   
   
   

6. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, algorithms, or structure of any portion of the Services;
   
   
   

7. interfere with, disrupt, or degrade the integrity, performance, or availability of the Services or the access or use of the Services by any other user;
   
   
   

8. use the Services in violation of any applicable law, regulation, rule, or self‑regulatory organization requirement; or encourage, facilitate, enable, or assist any other person or entity to engage in any of the foregoing.

TCEX reserves the right, in its sole discretion, to (x) remove or disable access to any content, (y) reject, cancel, or delay any bid, offer, or transaction, or (z) take any other action TCEX deems appropriate to protect the integrity of the platform or comply with applicable law, without liability to any Market Participant.

5. Non-Circumvention

1. Customer Non-Circumvention. Subject to Section 6 (Resale of Compute), and except for transactions completed through the Services, Customer shall not, and shall ensure that Customer’s Users, affiliates, agents, advisors, representatives, and any other persons acting for Customer or on Customer’s behalf do not, at any time, purchase, license, lease, reserve, access, or otherwise obtain Compute directly or indirectly from any Provider (or any of its affiliates) or other third party that was introduced to Customer through the Services or with which Customer became aware of through the Services, where such other Compute transaction is substantially similar to any that was offered to Customer via the Services.
   
   
   

2. Provider Non-Circumvention. Except for transactions completed through the Services, Provider shall not, and shall ensure that Provider’s Users, affiliates, agents, advisors, representatives, and any other persons acting for Provider or on Provider’s behalf do not, at any time, sell, license, lease, provide, or otherwise make available Compute directly or indirectly to, or for the benefit of, any Customer (or any of its affiliates) or other third party that was introduced to Provider through the Services or with which Provider became aware of through the Services, where such other Compute transaction is substantially similar to any that was offered to or proposed by Provider via the Services.
   
   
   

3. The obligations contained in this Section 5 shall survive for 6 months after any applicable offering via the Services of terms for a Compute transaction.

6. Resale of Compute

1. Right to Resell. Subject to the terms and conditions of this Section 6, a Customer that is party to a Compute Transaction shall have the right to resell the Compute that is the subject of such Compute Transaction by assigning all of its rights and obligations under the applicable Compute Services Agreement (such Customer, a “Reseller” and such assignment, the “Resale Assignment”) to another Market Participant that uses the Services as a Customer (the “Assignee Customer”). The Reseller’s right to effect a Resale Assignment pursuant to this Section 6 shall (i) be subject to a separate Seller Agreement between the Reseller and TCEX and (ii) supersede any provision to the contrary in a Provider Agreement or any other agreement between the Reseller and the applicable Provider.
   
   
   

2. Platform Requirement. A Resale Assignment may only be effected through the Services. The Reseller shall not list the applicable Compute on the Services as a resale transaction unless and until the Reseller has obtained the Provider’s prior written consent to the proposed Resale Assignment in accordance with Section 6(c). Subject to the foregoing, the Resale Assignment shall be deemed effective upon consummation of the resale transaction on the Services.
   
   
   

3. Provider Consent. The Reseller shall obtain the applicable Provider’s prior written consent before offering or effecting any Resale Assignment. The Provider shall not unreasonably withhold, condition, or delay such consent. The Reseller shall provide the Provider with reasonable information regarding the proposed Assignee Customer to enable the Provider to evaluate the proposed Resale Assignment.
   
   
   

4. Effect of Resale Assignment. Upon the effective date of a Resale Assignment: (i) the Assignee Customer shall assume all rights and obligations of the Reseller under the applicable Compute Services Agreement with respect to the applicable Compute Transaction arising from and after such effective date; and (ii) the Reseller shall be released from obligations under the applicable Compute Services Agreement arising from and after such effective date, but shall remain liable for all obligations and liabilities arising prior to such effective date. For the avoidance of doubt, a Resale Assignment shall constitute an assignment and not a novation, and the Reseller’s obligations under these Terms (including Section 2(c), Section 5, and Section 10) and the Compute Services Agreement shall survive the Resale Assignment to the extent applicable. Upon the effective date of the Resale Assignment, the Assignee Customer shall be bound by the terms and conditions of the applicable Compute Services Agreement as if it were the original Customer thereunder.

7. Compute Transaction Protections

1. Breach Remedies. If either a Customer or a Provider materially breaches a Compute Services Agreement by impermissibly cancelling, repudiating, or substantially failing to perform any fundamental obligation thereunder (the “Breaching Party”), the Breaching Party shall be liable to the other party to such Compute Services Agreement (the “Non-Breaching Party”) for: (i) an amount equal to the difference (if positive) between (A) the cost the Non-Breaching Party would incur to obtain or provide (as applicable) comparable Compute at the then-prevailing market price for the remainder of the term of the applicable Compute Transaction and (B) the aggregate price for such Compute for the remainder of such term under the applicable Compute Services Agreement (the “Replacement Cost Damages”); and (ii) all reasonable and documented costs and expenses (including attorneys’ fees and costs) incurred by the Non-Breaching Party in connection with obtaining alternative Compute and the enforcement of its rights under this Section 7(a) or the applicable Compute Services Agreement (collectively, “Enforcement Costs”). Each Market Participant acknowledges and agrees that TCEX acts solely as a facilitator of Compute Transactions and shall have no obligation to enforce, collect, or otherwise administer any remedy under this Section 7(a) on behalf of any Market Participant

2. Committing Compute. During the term of any Compute Services Agreement (including, for clarity, the period between the Provider and Customer’s agreement to such Compute Services Agreement and the commencement of Provider’s provision of Compute thereunder), the applicable Provider shall not, directly or indirectly, sell, lease, license, list, offer, or otherwise make available to any third party (whether through another marketplace, platform, or otherwise) any Compute that is to be provided to the Customer pursuant to such Compute Services Agreement. Any breach of this Section 7(b) shall constitute a material breach of these Terms and of the applicable Compute Services Agreement.

8. Representations, Warranties and Covenants

Each time a Market Participant or any of its Users interacts with the Services, such Market Participant represents, warrants, and covenants as follows:

1. Compliance with Law. The Market Participant and its Users are and will be in compliance with all laws and regulations applicable to the Market Participant’s use of the Services. The Market Participant and its registered Users will not use the Services for any unlawful, unauthorized, or improper purpose, including activities related to money laundering, terrorist financing, fraud, sanctions evasion or market manipulation. 
   
   
   

2. Sanctions; Illicit Activity.

   1. Neither the Market Participant, nor any beneficial owner of the Market Participant, nor any of the Market Participant’s Users, affiliates, directors, officers, employees, agents, or any person acting on the Market Participant’s behalf, are (i) identified on, or owned or controlled (directly or indirectly) by any person identified on, any sanctions-related list of designated persons maintained by the United States (including OFAC), the United Nations, the European Union, or the United Kingdom (each, a “Sanctions Authority”), or (ii) otherwise the subject of sanctions administered or enforced by a Sanctions Authority.
      
      
      

   2. The Market Participant, and none of its Users, is located, organized, or ordinarily resident in any jurisdiction that is subject to sanctions or embargoes imposed by a Sanctions Authority, including (as of the date these Terms were last updated) Cuba, Iran, North Korea, Syria, Russia, Belarus, Venezuela, Somalia, Libya, Yemen, Myanmar, Zimbabwe and the Crimea, Donetsk, and Luhansk regions of Ukraine..
      
      
      

   3. Authority. You (the individual accepting these Terms) represent and warrant that you have the legal capacity and authority to accept these Terms on behalf of the Market Participant and to bind the Market Participant to these Terms. If you do not have such authority, you must not accept these Terms or use the Services on behalf of the Market Participant.

9. Disclaimers

1. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. 
   
   
   

2. TCEX MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING ANY PROVIDER, WHETHER AS TO THE PROVIDER’S OWNERSHIP, RESIDENCY, PERFORMANCE, CONDUCT, ACTIONS, STATEMENTS, OR OTHERWISE.
   
   
   

3. TCEX IS NOT OBLIGATED TO PROVIDE COMPUTE AND MAKES NO WARRANTY WHATSOEVER REGARDING COMPUTE THAT MAY BE PROVIDED PURSUANT TO ANY COMPUTE TRANSACTION OR OTHERWISE BY ANY PROVIDER.
   
   
   

4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TCEX DISCLAIMS ALL IMPLIED, STATUTORY, AND OTHER WARRANTIES RELATING TO THE SERVICES, COMPUTE TRANSACTIONS, OR PROVIDERS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT.

10. Intellectual Property

1. Feedback. A Market Participant may from time to time provide suggestions, comments, feedback, or ideas regarding the Services (“Feedback”). Each Market Participant hereby grants to TCEX a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty‑free, fully paid‑up, sublicensable (through multiple tiers) right and license to use, copy, modify, incorporate, commercialize, and otherwise exploit the Feedback for any purpose, without obligation or compensation to such Market Participant, and without any restriction.
   
   
   

2. Customer Content. By uploading Customer Content, the applicable Market Participant hereby grants to TCEX a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty‑free, fully paid‑up, sublicensable (through multiple tiers) right and license to use, copy, modify, incorporate, and otherwise exploit the Customer Content for purposes of providing the Services. The Market Participant is solely responsible for all of its Customer Content and represents and warrants that it has and will maintain all rights necessary to grant the right and license granted to TCEX in this paragraph and that the Customer Content will not infringe or violate any third-party rights or applicable law.
   
   
   

3. Derived Data. TCEX or its affiliates may also create data or materials that are derived from Customer Content but from which the underlying Customer Content cannot be readily discerned and identified with a Market Participant (“Derived Data”). For clarity, aggregated or anonymized Customer Content constitutes Derived Data. Each Market Participant acknowledges and agrees that, as between the parties, TCEX owns all right, title and interest in Derived Data, and that TCEX may use, copy, modify, incorporate, commercialize, and otherwise exploit Derived Data for any purpose, without obligation or compensation to any Market Participant, and without any restriction.

11. Indemnity

1. Indemnity Obligation. Each Market Participant shall indemnify, defend (with counsel reasonably acceptable to TCEX), and hold harmless TCEX, its affiliates, and each of their respective officers, directors, employees, agents, and service providers (excluding, for clarity, Providers) (collectively, “TCEX Parties”) from and against any and all claims, actions, suits, proceedings, investigations, disputes, demands, damages, losses, liabilities, judgments, penalties, fines, interest, costs, and expenses (including reasonable attorneys’ fees and expenses and costs of investigation) (“Losses”), arising out of, relating to, or resulting from, directly or indirectly: (i) such Market Participant’s access to or use of the Services, including any use by its personnel or on its behalf; (ii) Customer Content, including any allegation that Customer Content infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other rights of any third party, or violates applicable law; (iii) such Market Participant’s breach of these Terms, including any representation, warranty, or covenant hereunder; (iv) such Market Participant’s violation of applicable law, rule, or regulation; or (v) any third‑party claim based on such Market Participant’s actual or alleged negligence, willful misconduct, or misuse of the Services.
   
   
   

2. Defense and Control. TCEX may, at its option, assume control of the defense of any indemnified claim (without relieving the Market Participant of its indemnification obligations), and the Market Participant shall cooperate fully in such defense. The Market Participant may not settle any indemnified claim without TCEX’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed, unless such settlement includes an unconditional release of all TCEX Parties and does not impose any admission of fault, non‑monetary obligation, or restriction on any TCEX Party.

12. Limitations of Liability

1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO TCEX PARTY WILL BE LIABLE IN CONNECTION WITH THESE TERMS OR THE SERVICES TO ANY MARKET PARTICIPANT (OR ANY OF ITS AFFILIATES OR ITS OR ITS AFFILIATES’ RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS) (1) 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 SERVICES OR (2) AGGREGATE TOTAL LIABILITY IN EXCESS OF THE GREATER OF (X) THE FEES EARNED BY TCEX IN CONNECTION WITH COMPUTE TRANSACTIONS ENTERED INTO BY SUCH MARKET PARTICIPANT IN THE SIX MONTHS PRECEDING ANY APPLICABLE CLAIM AND (Y) ONE HUNDRED U.S. DOLLARS ($100).
   
   
   

2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH MARKET PARTICIPANT HEREBY IRREVOCABLY RELEASES, WAIVES, AND FOREVER DISCHARGES ALL TCEX PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND LIABILITIES OF ANY KIND, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ARISING OUT OF OR RELATING TO COMPUTE TRANSACTIONS, EXCEPT TO THE EXTENT SUCH CLAIMS ARE FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM PROVIDER’S FRAUD OR WILLFUL MISCONDUCT.
   
   
   

3. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH IN THESE TERMS APPLY TO CLAIMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY. THE PARTIES ACKNOWLEDGE THAT THIS SECTION REFLECTS A NEGOTIATED ALLOCATION OF RISK AND FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

13. Confidentiality.

1. As used in these Terms, “Confidential Information” means all non-public information disclosed by or on behalf of TCEX or any Market Participant to another party to these Marketplace Terms in connection with the Services or any Compute Transaction, including, without limitation, all quotations, requests for quotations, bids, offers, indicative pricing, and any other information relating to the pricing of Compute. For the avoidance of doubt, all such pricing-related information shall constitute Confidential Information of both (i) the Market Participant providing such information and (ii) TCEX.
   
   
   

2. Each Market Participant shall, and shall cause its Users to: (i) hold all Confidential Information in strict confidence, using at least the same degree of care that such Market Participant uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care; (ii) not disclose any Confidential Information to any third party without the prior written consent of both the disclosing party and TCEX; and (iii) use Confidential Information solely for the purpose of evaluating, negotiating, entering into, and performing Compute Transactions through the Services. Each Market Participant shall be responsible for any breach of this Section by any of its Users or other personnel.
   
   
   

3. The obligations set forth in this Section shall not apply to information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving party or any of its representatives in breach of this Section; (ii) was already known to the receiving party at the time of disclosure, as evidenced by the receiving party’s contemporaneous written records, without any obligation of confidentiality with respect thereto; (iii) is independently developed by the receiving party without use of or reference to the Confidential Information, as evidenced by the receiving party’s contemporaneous written records; or (iv) is required to be disclosed pursuant to applicable law, regulation, or a valid order issued by a court or other governmental authority of competent jurisdiction, provided that the receiving party shall, to the extent legally permitted, (A) provide prompt written notice of such requirement to the disclosing party and TCEX prior to such disclosure, and (B) reasonably cooperate with any efforts by the disclosing party or TCEX to obtain confidential or protective treatment of such Confidential Information.
   
   
   

4. The obligations set forth in this Section shall survive the termination or expiration of these Terms for a period of three (3) years following such termination or expiration.

14. Arbitration

1. Arbitration of Disputes. In order to expedite and control the cost of disputes, TCEX and each Market Participant agree that any legal or equitable claim, dispute, action, or proceeding arising from or related to the Services or these Terms (“Dispute”) will be resolved by arbitration if the parties are unable to reach an agreement through negotiation of the dispute. This applies to all Disputes, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms.
   
   
   

2. Exceptions to Arbitration Agreement. Despite this arbitration agreement, both the Market Participant and TCEX will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action.
   
   
   

3. EACH MARKET PARTICIPANT AND TCEX AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH THE MARKET PARTICIPANT AND TCEX AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
   
   
   

4. Binding Arbitration. To the fullest extent permitted under law, any arbitration between a Market Participant and TCEX will be settled under the Federal Arbitration Act, and will be administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules in effect at the time the Dispute is filed (the “AAA Rules”), as modified by these Terms. Information about AAA and the AAA Rules and filing process is available at http://www.adr.org/. ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR THE LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. The arbitration will take place in New York, New York, and be conducted in English by one arbitrator.
   
   
   

5. Filing Period. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended with the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.

15. Miscellaneous.

1. Privacy Policy. TCEX’s use of data collected from or regarding a Market Participant is subject to its Privacy Policy, located at https://compute.exchange/privacy-policy, to the extent applicable.
   
   
   

2. Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these Terms and any terms of Third Party Products, the following order of precedence governs: (i) first, these Terms, (ii) second, the terms of the Third Party Product.
   
   
   

3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and delivered by email. A Market Participant shall send Notices for TCEX to [email protected]. TCEX shall send Notices for a Market Participant to the email address for such Market Participant associated with its account profile on the Services.
   
   
   

4. Force Majeure. In no event shall TCEX be liable to any Market Participant, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond TCEX’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of a law or any action taken by a governmental or public authority, including imposing an embargo.
   
   
   

5. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify these Terms so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   
   
   

6. Governing Law. These Terms, together with any agreement entered into in connection with or pursuant to these Terms that does not expressly provide otherwise, are governed by and will be construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
   
   
   

7. Assignment. No Market Participant may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of TCEX. TCEX may assign its rights upon written notice to the applicable Market Participant. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. These Terms are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
   
   
   

8. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 1(d), Section 5, Section 6, Section 7, Section 10, or Section 13, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.