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NICEGPU HOSTING AGREEMENT

THIS NICEGPU HOSTING AGREEMENT (“Agreement”) shall be effective on the date (“Effective Date”) when you (“Provider”) commence the Services, as defined below, with Alkers Solutions Inc., d/b/a NiceGPU, a Delaware corporation having an address at 21688 Gateway Center Drive, Diamond Bar, CA 91765 (“NiceGPU”).

WITNESSETH:

WHEREAS, Provider is the owner of certain computer processing hardware; and
WHEREAS, Provider desires to rent the “Hardware” (as defined below) to NiceGPU users (“Users”) on a pay-as-you-go basis; and
WHEREAS, NiceGPU desires to facilitate the rental of such Hardware to its Users using NiceGPU Software; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

I. RECITALS

The above recitals are incorporated herein by reference as if fully set forth herein.

II. HARDWARE; SERVICES; EFFECTIVE DATE

  1. Subject to the terms and conditions set forth in this Agreement, Provider hereby agrees to make Hardware for rent on the NiceGPU Software (the “Hardware”, “Hardware” shall refer to the Hardware individually and collectively).

  2. Subject to the terms and conditions set forth in this Agreement, Provider shall perform or arrange for the performance of Hardware rental services to NiceGPU Users (the “Services”, “Services” shall refer to Services individually and collectively). Provider is exclusively responsible for properly running, troubleshooting, and maintaining the Hardware to perform the Services. NiceGPU shall bear no responsibility for technical assistance to Provider for the Hardware or software required to get the Hardware to function properly in accordance with NiceGPU guidelines.

  3. For purposes of this Agreement, Services shall be deemed to have commenced on the earliest date that Provider registers Hardware through the NiceGPU platform interface. The date of such registration shall be considered the “Effective Date” of this Agreement.

III. LICENSE AND RESPONSIBILITIES

  1. Grant. Subject to the terms and conditions of this Agreement, NiceGPU grants Provider a non-exclusive, non-transferable license and/or sub-license to access and use NiceGPU’s website, NiceGPU’s hosting software, NiceGPU’s online user interface and any other applicable software that would be required to perform the Services (both individually and collectively, the “Software”) during the Term and/or any Renewal Term or Extended Renewal Term, as applicable (“License”). Such License includes use of the Software by Provider and its authorized employees, agents, and contractors (“Authorized Users”), and the right to allow remote access and use of the Software by such Authorized Users (as defined below). During the term of this Agreement, NiceGPU shall provide Provider and Authorized Users access to the Software via an online user interface in accordance with the terms of this Agreement.

  2. To the extent the Software contains third-party software under license to NiceGPU, including open source software (collectively, the “Third-Party Software”), the Third-Party Software is licensed to NiceGPU under and subject to the terms of the applicable Third-Party Software licenses. The use of the Third-Party Software is subject to all of the restrictions with respect to the licensed software as set forth in such Third-Party Software licenses.

  3. Except as otherwise provided in this Agreement, Provider and its Authorized Users may not carry out any modifications, alterations, or adaptations on or to the Software. Provider may not directly or indirectly, grant sublicenses, leases, or other rights under the License to third parties. Provider and its Authorized Users shall not, directly or indirectly, modify, reverse engineer, reverse compile, or disassemble the Software. Provider and its Authorized Users shall not remove any copyright, trademark, or other proprietary notices of NiceGPU and/or any third party as they appear in the materials provided by NiceGPU hereunder. Provider shall not (and shall ensure that its Authorized Users do not): (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious matter; (ii) send or store malicious code; (iii) interfere with or disrupt the integrity or performance of the Software, the user interface, or the data contained therein; or (iv) attempt to gain unauthorized access to the Software, user interface, or their related systems or networks.

  4. This Agreement does not include, and Provider is not entitled to receive any Software source code or any proprietary programming documentation for the Software. Notwithstanding the foregoing, Provider shall use reasonable efforts to protect any Software source code or proprietary programming documentation to which Provider gains access.

  5. Provider agrees to promptly suspend access to the Software for any person who: (i) ceases to qualify as an Authorized User; (ii) Provider no longer wishes to have access to the Software; or (iii) Provider knows or reasonably believes is causing Provider to breach this Agreement.

  6. In connection with Provider’s use of the Software, Provider shall: (i) comply with all applicable laws, court orders, rules and regulations, including without limitation, the Digital Millennium Copyright Act and related copyright laws; (ii) comply with applicable NiceGPU policies for access to and use of the Software; (iii) cooperate with NiceGPU’s investigation of outages, security problems, unauthorized use of the Software and/or any suspected breach of this Agreement and any applicable law, court order, rule or regulation; (iv) comply with applicable license terms or terms of use for any Software, content, service or website which Provider or any of its Authorized Users accesses or uses when using the Software; (v) give NiceGPU true, accurate, current, and complete account information; (vi) keep Provider account information up to date; (vii) be responsible for the use of the Software and compliance with this Agreement by all Authorized Users; and (viii) promptly notify NiceGPU of any known or suspected unauthorized use of Provider’s account, the Software or any other breach of security.

IV. TERM & TERMINATION

  1. This Agreement shall commence on the Effective Date. The term of the Agreement shall be for a period of one (1) month (the “Term”). The Term shall automatically renew for successive one (1) month periods (each a “Renewal Term”). Either party may terminate this Agreement effective the last day of the then-current Term, Renewal Term or Extended Renewal Term by providing prior written notice to the other party of its intent to terminate the Agreement; provided, however, that this Agreement shall automatically terminate on the date that Provider stops utilizing the NiceGPU Software, subject to the section below regarding survival of certain provisions of this Agreement.

  2. Notwithstanding the foregoing, this Agreement may be terminated at any time by either party if the other party breaches any material provision of this Agreement. The party desiring to terminate shall give the breaching party written notice stating the nature and character of the breach and allow the breaching party ten (10) business days from the date of the notice to correct the breach. If the breach has not been corrected within the ten (10) business day notice period, this Agreement shall then be automatically terminated.

  3. Notwithstanding the expiration or other termination of this Agreement, NiceGPU shall not be released from any obligation that accrued prior to the date of such expiration or termination, including, but not limited to, the obligations of NiceGPU to pay Provider for any and all Hardware as a Service and Service Payments. Performance of any Services for NiceGPU or any other act after termination of this Agreement shall not be construed as a renewal of this Agreement for any further term nor a waiver of the termination hereof.

  4. All provisions of this Agreement relating to intellectual property, confidentiality, ownership, indemnification, limitation of liability and any other subject that would, by its nature, be deemed to survive termination of this Agreement, will survive the termination of this Agreement.

  5. Notwithstanding the foregoing, the parties may terminate the Agreement at any time by mutual written consent by the parties.

V. USE OF HARDWARE

  1. The Hardware shall at all times be located at the Provider’s place of business or residence and shall be used by NiceGPU in furtherance of NiceGPU’s business. Any use of the Hardware must be: (a) consistent with the use and function of the Hardware according to the manufacture’s design and instructions and consistent with the NiceGPU’s standards; (b) consistent with the terms of this Agreement; and (c) in accordance with all applicable government laws, rules and regulations.

  2. NiceGPU shall use commercially reasonable efforts to verify Hardware specifications in a timely manner after initial Provider onboarding. However, if such Hardware is not in demand, the verification may take longer. If Hardware is found to be underperforming, misconfigured, or materially inconsistent with submitted specifications, NiceGPU may, at its sole discretion, force the Hardware Offline, limit its visibility, or take other actions, including potential delisting.

VI. PAYMENT AND COMMISSION

  1. Payment. Provider shall be entitled to payment based on the rental and use of the Hardware by NiceGPU Users during the Term and any Renewal Term. NiceGPU shall calculate the Provider’s earnings on a daily basis, based on system-tracked Hardware availability and usage.

  2. Providers may request payment of accrued earnings at any time through the Platform’s “Withdraw” function, provided that a valid and current bank account has been registered and verified in the Provider’s profile.

  3. Payments shall be processed by NiceGPU’s payment partner, Ayden, via Automated Clearing House (ACH) transfer or other payment methods deemed appropriate, to the bank account or payment destination designated by the Provider. The Provider is solely responsible for ensuring the accuracy and validity of all payment account information. NiceGPU shall not be liable for payment delays or failures resulting from incorrect account details.

  4. One (1) free withdrawal is offered every thirty (30) days. Additional withdrawals within the same 30-day period may incur a transaction fee, which shall be borne by the Provider. Such fees will be disclosed at the time of withdrawal and reflect actual processing costs charged by NiceGPU’s payment processor.

  5. NiceGPU shall use commercially reasonable efforts to process withdrawal requests promptly, typically within 3–5 business days, from the date of the Provider’s request.

  6. Commission. NiceGPU shall deduct from the Provider’s accrued earnings a platform commission fee, calculated as a percentage of daily earnings generated from Hardware availability or compute job participation. The applicable commission rate for each Provider is determined and configured through the Platform and must be explicitly agreed to by the Provider prior to the activation of Hardware or participation in compute services. NiceGPU may, at its discretion, offer modified commission rates to specific Providers based on individualized agreements or negotiated terms. All commission rates — standard or negotiated — must be explicitly accepted by the Provider prior to Hardware activation or participation in compute services.

  7. If NiceGPU proposes to modify the commission rate, such change shall only take effect after the Provider has reviewed and accepted the new rate through the Platform interface. Providers who do not accept the updated commission rate will not be permitted to bring Hardware Online or continue participating in the Platform’s compute services until such acceptance is recorded.

  8. All commission fees will be automatically deducted prior to payout, and the resulting net earnings will be displayed in the Provider’s wallet dashboard.

  9. NiceGPU may withhold payments for: lost user data, excessive outages, extensive downtime or any other occurrences which result in harm to the NiceGPU brand. NiceGPU reserves the discretionary right to withhold payment for any breach or non-performance by Provider.

  10. NiceGPU may charge and Provider will pay to NiceGPU an amount equal to any federal, national, state or local sale or use taxes or value added taxes that Provider is legally obligated to pay, but which have been improperly imposed on NiceGPU by applicable authorities (“Taxes”). Notwithstanding the foregoing, any and all Taxes payable in connection with Provider’s activities under this Agreement shall be the sole responsibility of Provider.

VII. OWNERSHIP OF HARDWARE

The Hardware shall, at all times, be the sole and exclusive property of Provider. NiceGPU shall have no rights or property interest therein, except as otherwise set forth in this Agreement.

VIII. OPERATION AND MAINTENANCE

  1. Defined Terms.

    • “Regular Business Hours” shall mean the hours between 12:00 A.M. and 12:00 A.M. local time, Monday through Sunday;
    • “Preventative Maintenance” or “PM” shall mean the performance of periodic inspections of the Hardware, Software, and other services necessary to maintain the Hardware and Software in good working order, including cleaning, adjustment, updating and troubleshooting;
    • “Remedial Maintenance” or “RM” shall mean the repair, update or replacement (at Provider’s option) of Hardware parts that fail.

  2. Authorized Users shall use the Hardware and Software in a careful and proper manner, in accordance with all applicable manufacturer, developers and/or vendor specifications, solely in the conduct of its business, and will comply with and conform to all federal, state or local laws, ordinances and regulations relating to the use of the Hardware and Software.

  3. Provider shall provide Preventative Maintenance and Remedial Maintenance for the Hardware and Software during Regular Business Hours, as applicable, and shall furnish any and all parts or updates required to keep the Hardware and Software in good mechanical, operational and/or working order.

  4. Provider shall provide Preventative Maintenance and Remedial Maintenance when the Authorized User is not actively using the hardware, in accordance with the NiceGPU guidelines. All provider downtime may be recorded and displayed for Authorized Users to access the reliability of the hardware.

  5. Uptime. Provider shall use commercially best efforts to ensure that the Hardware will be available 24 hours per day, 7 days per week, excluding any scheduled downtime for PM and RM. Daily system logs will be used to track scheduled downtime, and any other outages and this data shall be reflected on Provider’s hardware description on NiceGPU’s marketplace website. Frequent service interruptions by Provider, short Hardware “Online” durations, or unstable performance may result in a reduction of Hardware ranking, temporary suppression from listings, permanent Provider delisting or other adverse action in NiceGPU’s sole discretion. NiceGPU reserves the right to display the Provider’s hardware description and custom metrics at its own discretion. NiceGPU shall use good faith efforts to ensure the accuracy of the uptime and other metrics, but it shall not be responsible for any inaccurate data. If Provider feels its Uptime metrics are inaccurate, it will contact NiceGPU immediately.

  6. Access. Provider agrees to give NiceGPU reasonable access to the Hardware and Software during Regular Business Hours to provide all Services provided hereunder. Provider further agrees to provide NiceGPU access to additional information, facilities and resources as may necessary for NiceGPU to provide the Services contemplated.

  7. Downloading, Storing, or Printing. Downloading, storing, reviewing, printing, or saving of the Authorized User’s data is strictly prohibited.

  8. Data Breach Liability. If Provider is subject to any claims relating to any data breaches or security incidents, Provider shall indemnify and hold harmless NiceGPU and defend against any such claims, including reimbursement of any costs incurred by NiceGPU relating to those claims. This obligation is in addition to any of Provider’s other indemnification obligations in this Agreement.

IX. REPRESENTATIONS AND WARRANTIES

  1. NiceGPU represents and warrants that (i) it has the right and authority to enter into and perform this Agreement, including, without limitation to grant the rights and licenses provided for in this Agreement; (ii) neither the execution and delivery of this Agreement nor the performance of any of its obligations hereunder will violate its organizational documents; (iii) it shall comply in all material respects with all applicable federal, state, and local statutes, regulations and ordinances in the performance of its obligations hereunder; and (iv) that it owns all right, title and interest in and to or has all necessary license rights to all “NiceGPU Content” (as defined below) provided to Provider. In the event that NiceGPU requests Provider to provide any Services with respect to any third party applications and software (including all applications, software installed, implemented and configured by Provider on NiceGPU’s behalf), NiceGPU represents and warrants to Provider that (i) it has the right to grant access to Provider to perform and deliver such Services or has otherwise obtained all necessary consents, and (ii) it is in compliance with all relevant applications or software licensing requirements.

  2. Provider represents and warrants that: (i) it is the sole owner of the Hardware and Provider has the unrestricted right to lease the Hardware to NiceGPU as provided herein; (ii) as of the Effective Date, all licenses, permits, approvals and consents, if any, required from any governmental authority or third party for Provider to perform the Services to NiceGPU for the purposes contemplated by this Agreement have been obtained by Provider; (iii) neither the execution and delivery of this Agreement nor the performance of any of Provider’s obligations hereunder will violate its organizational documents; (iv) it shall comply in all material respects with all applicable federal, state, and local statutes, regulations and ordinances in the performance of its obligations hereunder.

  3. DISCLAIMER.
    EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN SECTION X(1) OF THIS AGREEMENT, NICEGPU MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR OTHERWISE, SERVICES, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, AND SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES WITH RESPECT TO TITLE OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND SOFTWARE.

X. INDEMNIFICATION

Except as otherwise specifically set forth in this Agreement, Provider to the fullest extent permitted by law, shall release, indemnify and hold harmless NiceGPU and NiceGPU’s affiliates, parents, and subsidiaries and their respective employees, officers, directors, agents and contractors from and against all liabilities, obligations, losses, damages, claims (whether of Provider or third parties) and all corresponding costs and expenses (including legal fees and expenses) in any way relating to or arising of this Agreement and/or the performance or non-performance of obligations hereunder, including without limitation liabilities or claims pertaining to Provider’s possession, use, operation, storage, transportation, maintenance, repair, replacement and/or return of the Hardware. Provider shall give NiceGPU prompt notice of any occurrence, event or condition in connection with which NiceGPU may be entitled to release and/or indemnification hereunder. The provisions of this paragraph shall survive the expiration or early termination of this Agreement.

XI. LIMITATION OF LIABILITY

IN NO EVENT SHALL NICEGPU BE LIABLE TO PROVIDER FOR ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED ON THE INACCURACY OF ANY PROVIDER’S INFORMATION PROVIDED ON NICEGPU’S MARKETPLACE WEBSITE.

IN NO EVENT SHALL NICEGPU BE LIABLE TO PROVIDER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND ARISING OUT OF, RELATED TO, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR GOOD WILL, EVEN IF PROVIDER HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.

FURTHER, IN NO EVENT SHALL NICEGPU’S AGGREGATE LIABILITY TO PROVIDER FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENT, LIABILITIES, COSTS, EXPENSES, OR DAMAGES ARISING OUT OR RELATED TO THIS AGREEMENT, AND REGARDLESS OF THE FORM OF THE ACTION OR LEGAL THEORY, EXCEED THE HARDWARE AS A SERVICE AND SERVICE PAYMENTS PAID BY NICEGPU TO PROVIDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

THE PARTIES AGREE THAT THIS IS A MATERIAL PART OF THIS AGREEMENT AND HAS BEEN BARGAINED FOR.

XII. ASSIGNMENT

NiceGPU may assign, transfer or convey (by operation of law or otherwise) this Agreement or any interest herein, in whole or in part, without the prior written consent of Provider. Notwithstanding anything to the contrary in this paragraph, without the consent of Provider, NiceGPU may assign this Agreement in connection with a merger, consolidation, reorganization, sale of all or substantially all of its assets, or any similar transaction.

XIII. NON-DISCLOSURE; NON-SOLICITATION, NON-CIRCUMVENTION

  1. Non-disclosure. Provider agrees that the performance of this Agreement will result in the disclosure to Provider of information not generally known by third parties and treated as proprietary (“Confidential Information”). Provider shall not, without the written consent of the NiceGPU, divulge, communicate, or use in any way (except as permitted by this Agreement) the Confidential Information of NiceGPU, and Provider shall utilize the same degree of care and precaution as Provider utilizes with respect to its own proprietary information to prevent the unauthorized disclosure of NiceGPU’s Confidential Information. All Software, service manuals, designs, findings, products, inventions, displays, sets, sketches, plans, artist renderings, copies, reproductions, operations, purposes, discoveries, equipment, hardware, samples, improvements, specifications, processes, marketing or promotional materials, know how, tests and other data, services, selling agreements, suppliers, descriptions, formulas, budgets, projects, reports, research and development, studies, contracts, source code, business policies and practices, contractors, consultants, techniques, technical bulletins, price lists, system schematics and drawings used in the performance of this Agreement are the Confidential Information and property of NiceGPU and its licensors. The term “Confidential Information” shall not include, and the obligations of this Section shall not apply to, any information which: (a) at the time of disclosure to Provider, is in the public knowledge; (b) after disclosure, becomes part of the public knowledge by publication or otherwise, except by breach of this Agreement or by fault of the Provider; (c) was lawfully in the Provider’s possession (as reflected by its written records) at the time of disclosure by NiceGPU, and which was not acquired, directly or indirectly, from NiceGPU; (d) the Provider can demonstrate by written documents resulted from its own research and development, independent of disclosure from NiceGPU; or (e) was received by the Provider from third parties not under an obligation not to disclose such information. The provisions of this Section shall survive the expiration or termination of this Agreement for any reason. Upon termination or expiration of this Agreement, Provider agrees to promptly return to NiceGPU, or if not returnable, to promptly destroy, all records, documents, memoranda, and other materials and all copies (including, without limitation, all electronic copies) of the same, of whatever kind or nature, relating to Confidential Information. In the event Provider is requested or required as a result of a judicial or regulatory proceedings to disclose any Confidential Information, Provider agrees to provide NiceGPU with immediate written notice thereof so that it may seek a protective order and the Provider agrees to cooperate to obtain such a protective order or other remedy. If failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, disclosure of any Confidential Information is required, Provider may disclose that portion of the Confidential Information which its counsel advises it is legally compelled to disclose and will exercise its best efforts to obtain reliable assurance that confidential treatment will be afforded any Confidential Information so furnished.

  2. Covenant of Non-Solicitation/Hire. During the Term or any Renewal Term or Extended Renewal Term of this Agreement and for a period of one year after the termination or expiration of this Agreement, Provider will not directly or indirectly, on behalf of itself, or on behalf of any person, firm, partnership, corporation, association or entity, hire or solicit or induce any employee, consultant or representative of NiceGPU to discontinue its relationship with Provider or to establish a relationship with Provider or any other party. Violation of this provision shall constitute an event of default and NiceGPU shall have the right to any or all of the following: (i) equitable relief (including without limitation injunctive relief) without having to prove damages or post a security bond; (ii) termination of this Agreement; and/or (iii) pursue all other damages and remedies available under applicable law.

  3. Covenant of Non-Circumvention. During the Term or any Renewal Term or Extended Renewal Term of this Agreement and for a period of one year after the termination or expiration of this Agreement, Provider will not directly or indirectly, on behalf of itself, or on behalf of any person, firm, partnership, corporation, association or entity, hire or solicit or induce any customer, client or potential client of NiceGPU to discontinue its relationship with NiceGPU or to establish a relationship with Provider or any other party. Violation of this provision shall constitute an event of default, and NiceGPU shall have the right to any or all of the following: (i) equitable relief (including without limitation injunctive relief) without having to prove damages or post a security bond; (ii) termination of this Agreement; and/or (iii) pursue all other damages and remedies available under applicable law.

  4. Liquidated Damages. Provider acknowledges and agrees that a failure by Provider to comply with the terms of this Section XIV would lead to substantial damages to NiceGPU that would be difficult and uncertain to calculate accurately. PROVIDER AGREES THAT ANY BREACH OF THIS SECTION SHALL REQUIRE PROVIDER TO PAY FIVE THOUSAND DOLLARS ($5,000.00) AS LIQUIDATED DAMAGES FOR EACH VIOLATION OF THIS SECTION XIV. Liquidated damages are not intended to be a penalty but solely to compensate for a reasonable estimate of actual damages.

XIV. INTELLECTUAL PROPERTY AND DATA SECURITY

  1. Software. As between Provider and NiceGPU, NiceGPU and/or its licensors shall continue to be the exclusive owner of the Software and/or Third-Party License (as defined below) and of its components, elements and features, including but not limited to Software source code, including all improvement and developments therefrom (collectively, the “NiceGPU Property”), and Provider shall only be granted the access and use rights provided under this Agreement. Provider shall acquire no property right in the NiceGPU Property by reason of its use thereof.

  2. Reports. NiceGPU hereby grants Provider a limited, non-exclusive and non-transferable right to create and display printouts of reports retrieved from the Software, and to reproduce, copy, analyze, use and display such reports during the Term, any Renewal Term and/or Extended Renewal Term, as applicable.

  3. Provider Content. “Provider Content” means any editorial, video, report, analytic or other content or data uploaded in the Software by the Hardware and/or by or on behalf of Provider and Authorized Users. NiceGPU is hereby granted, during the term of this Agreement and thereafter, a continuing nonexclusive right and license to create, host, reproduce, copy, display, analyze and distribute the Provider Content on the Software as necessary for NiceGPU to: (1) provide the Services to Provider and Authorized Users; (2) enhance, supplement, alter or modify available services to or for Provider or others; and/or (3) develop new services for Provider or third parties. Provider represents that it holds or will hold the necessary rights and licenses in and to the Provider Content in order to grant this license to NiceGPU.

  4. Provider Content Following Termination. Following the termination of this Agreement, NiceGPU shall have no obligation to maintain or provide any then available Provider Content and shall, unless legally prohibited, have the right to delete all Provider Content in its systems or otherwise in its possession or under its control.

  5. Access to Software. Other than the Hardware and Software, Provider is responsible for obtaining and maintaining all hardware, software, telecommunications Hardware and services necessary to access and use the Hardware and Software (collectively, “Provider Technology”). All such Provider Technology shall comply with the NiceGPU’s interface specifications provided to Provider, and as updated by NiceGPU from time to time upon no less than thirty (30) days’ notice to Provider. NiceGPU is not responsible for the performance, accuracy, compatibility, adequacy or provision of Provider Technology. Provider acknowledges and agrees that:

    • Provider has independently assessed and determined its own telecommunications hardware and bandwidth capacity requirements in connection with its intended use of the Hardware and Software and its own internal business requirements relating to the same;
    • Provider has not relied upon any advice, direction and/or instruction from NiceGPU in relation to the selection, installation, use and/or implementation of any Provider Technology;
    • NiceGPU makes no warranty that all or any part of such Provider Technology is or may be suitable for NiceGPU’s intended or desired purposes; and
    • In no event shall NiceGPU be liable to Provider for any direct or indirect loss, damage, cost, expense, claim or liability arising out of or related to any partial or total failure of such Provider Technology.

  6. Data Security. Provider shall use reasonable measures to safeguard the security of NiceGPU Content. Further, except with respect to NiceGPU’s express obligations set forth in this Agreement, Provider is solely responsible for any damage or losses caused by unauthorized destruction, loss, interception, or alteration of NiceGPU Content by unauthorized persons.

  7. Provider shall implement reasonable physical and environmental security around the Hardware to restrict unauthorized persons' physical access to the machine.

  8. Provider shall maintain data security standards, including but not limited to, data classifications, use of encryption, key and certificate lifecycle management, permitted cryptographic algorithm standards and associated key strength parameters, message authentication integrity controls, use of secure hash functions, use of digital signatures, secure and trusted random number generation. The standard and associated processes and standards should be reviewed for alignment with the appropriate industry standards and best practices on a regular basis.

  9. Provider and its subcontractors shall provide the right of audit to its facilities to NiceGPU, any of its officers, or any other authorized agent, at all reasonable times, to monitor and evaluate performance, compliance, and/or quality assurance under this Agreement.

XV. INDEPENDENT CONTRACTORS

NiceGPU and Provider are acting hereunder as independent contractors. Neither party shall be considered or deemed to be an agent, employee, joint venturer or partner of the other party. A party’s personnel shall not be considered employees of the other party, shall not be entitled to any benefits that the other party grants its employees, and shall have no authority to act or purport to act on the other party’s behalf. Each party shall be responsible for the conduct of its personnel. Neither NiceGPU nor Provider has the right, and shall not seek, to exercise any control over the other party or its personnel. Each party shall be solely responsible for hiring, firing, promoting, demoting, rates of pay, taxes, benefits and other terms and conditions in regard to its own personnel.

XVI. USE OF SUBCONTRACTORS

The use of subcontractors is permissible under this Agreement provided that: the subcontractor must agree to the same terms and conditions in this Agreement as the Provider, and the Provider remains responsible for the performance of the Agreement terms and conditions. In the event of dissatisfactory performance of the subcontractor, the Provider is ultimately responsible.

If any work under this Agreement is subcontracted in any way, Provider shall execute written agreements with its subcontractors containing the indemnification provisions and limitation of liability provisions set forth in Sections XI and XII. Provider shall be responsible for executing any agreements with its subcontractors.

XVII. NONEXCLUSIVE

NiceGPU and Provider both acknowledge and agree that the rights granted to the other party in this Agreement are nonexclusive and that, without limiting the generality of the foregoing, nothing in this Agreement shall in any way be deemed or construed to prohibit Provider from participating in similar business arrangements as those described herein.

XVIII. SALES AND MARKETING SUPPORT

Provider grants to NiceGPU the right to display Provider’s information as part of NiceGPU’s listings, references and on marketing material.

XIX. FURTHER ASSURANCES

Each party agrees that it shall, from and after the Effective Date, execute and deliver such other documents and take such other action as may reasonably be requested to effect the transaction contemplated hereunder.

XX. NOTICES

All notices or other documents under this Agreement shall be in writing, and delivered personally or mailed by certified mail, return receipt requested, addressed to the addresses first written above, or to such other address as the parties may, from time to time provide by notice to the other.

XXI. FORCE MAJEURE

Neither party shall incur any liability of any kind for reason of any delay or failure to perform all or any part of this Agreement due to causes beyond its reasonable control, including, but not limited to, compliance with regulations, orders or instructions of any federal, state or municipal government or any department or agency thereof, acts of God, acts or omission of either party or either party’s employees or agents which are not contemplated in its performance of this Agreement, acts of civil or military authority, civil disorder or disturbance, acts of public enemies, problems arising in transportation (including car or truck shortages), civil insurrection strikes, labor disputes, embargoes, war, riot, or failure of suppliers to make timely deliveries of materials or services.

XXII. ENTIRE AGREEMENT

This Agreement (including all schedules hereto) constitutes the entire agreement between the parties concerning the subject matter hereof; this Agreement supersedes any and all other agreements, including NiceGPU’s Terms of Use, negotiations, or discussions between the parties with respect to the subject matter hereof. No change or modification, including waiver of any provision hereof, shall be valid unless the same be in writing and signed by the parties.

XXIII. SEVERABILITY

If any provision contained in this Agreement shall be inoperative for any reason whatsoever, the validity and effect of all other provisions shall not be affected thereby.

XXIV. CHOICE OF LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its principles of conflict, and the venue of any action pertaining to the subject matter hereof shall be only Los Angeles County, California.

XXV. WAIVER OF JURY TRIAL

EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

XXVI. HEADINGS

The headings in this Agreement are inserted for convenience only, and are not to be considered in the construction of the provisions hereof.

XXVII. COUNTERPARTS; FACSIMILE

This Agreement may be executed in separate counterparts and by facsimile, PDF, or other form of electronic means, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement. Signatures by facsimile, PDF, or other form of electronic means shall be as effective and binding as original ink signatures.