These Terms and Conditions apply to Orders for software and services, as such are set out therein (Software and Services). Unless otherwise stated in an Order, the contract is between FLUIDSTACK LTD, a company incorporated and registered in England with company number 10985545 and registered address at Third Floor, 20 Old Bailey, London, EC4M 7AN, United Kingdom, and headquartered at 780 3rd Avenue, New York, NY 10017, United States (Fluidstack) and the individual or entity named in the Order (Customer) for the supply of the Services (the Contract).
1. Definitions.
The following capitalised terms mean:
Affiliate means any entity in the Fluidstack group of companies.
Confidential Information means any and all information which is confidential in nature or may reasonably be considered to be commercially sensitive (whether in oral, written or electronic form) disclosed or made available by a party, directly or indirectly, including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, and including in the case of Fluidstack, information relating to the identity and contact details of its suppliers.
Customer Data means data that the Customer or any end user transfers to Fluidstack for processing, storage, or hosting by the Services or uploads to any Software and any results that the Customer or any end user derives from through use of the Services and Software. “Customer Data” does not include information about the Customer and its end users provided to Fluidstack in connection with the creation or administration of Customer’s online ‘Fluidstack account’.
Fees mean the fees for the Software and Services as set out in an Order.
Fluidstack Console means the Fluidstack software platform accessible at https://console2.fluidstack.io/ (and any successor or related locations designated by Fluidstack).
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing.
Order means the order for the Software and Services. Orders may be placed via a mutually agreed statement of work or purchase order.
Service Levels means the service levels set out in an Order as further defined in Schedule 1.
2. Orders.
Each Order forms a separate Contract which incorporates these Terms and Conditions (and the documents referred to therein) and these Terms and Conditions govern each Order. If there is any conflict between these Terms and Conditions and any Order, the Order will take precedence, except that any standard preprinted terms and conditions of a purchase order will not apply.
Orders are deemed to have been accepted when both parties have signed the Order or, in the case of orders placed electronically via the Fluidstack Console, when Fluidstack confirms acceptance in writing, at which point and on which date the Contract will (unless specified otherwise in an Order) come into existence. Any quotation given by Fluidstack is not binding and does not constitute an offer.
3. Software and Services
Fluidstack will provide the Customer with the Software and Services as set out in the Order, in accordance with the Service Levels. The Software and Services are either provided directly or via its Affiliates or subcontractors.
Fluidstack will use reasonable endeavours to meet any performance dates specified in an Order, but any such dates will be estimates only and (unless otherwise specified in an Order) time will not be of the essence for delivery of the Software or performance of the Services.
In consideration of the fee paid by the Customer to Fluidstack for the same, Fluidstack grants to the Customer a non-exclusive, non-transferable, limited licence for the term of the Order, to use the Software, including software made available by Fluidstack to access the Services, in accordance with this Agreement, solely as specified in the Order. Customer has no right (and shall not permit any third party) to distribute, copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part. In conjunction with the Services, the Customer may be permitted to use certain software (including related support, maintenance, and documentation) developed, owned, or provided by third parties or their licensors. Use of such software may be subject to third party terms and conditions.
The Customer will not:
- sub-license, assign or novate the benefit or burden of the licence granted in Clause 3.3 in whole or in part;
- allow the Software to become the subject of any charge, lien or encumbrance;
- deal in any other manner with any or all of its rights and obligations under this Agreement, and
- use the Software other than on the designated equipment (including the volumes) specified in the Order.
4. Customer responsibilities
The Customer will:
- ensure that the terms of the Order, the Software and the Services meet its particular needs;
- provide Fluidstack with all reasonable assistance and information for Fluidstack to provide the Software and Services, and ensure that such information is complete and accurate;
- obtain and maintain all necessary licences, permissions, and consents which may be required for the Software and Services before the date on which the Software and Services are to start and which may be required thereafter;
- be liable to Fluidstack for any acts of unauthorised use of, or access to the Software or Services, regardless of whether the activities are undertaken by Customer, its employees, or any third party, unless Fluidstack's acts or omissions led to such unauthorised use or access;
- inform Fluidstack as soon as reasonably possible on becoming aware of any unauthorised use of, or unauthorised access to, the Software and Services and will use reasonable endeavours to aid in any investigation or legal action that is taken by authorities and/or Fluidstack to investigate and resolve the incident;
- at the written request of Fluidstack, promptly supply to Fluidstack all information reasonably necessary to establish whether a breach of any part of the Contract has occurred;
- comply with the terms of the Acceptable Use Policy, Data Protection Policy and Non-Circumvention Policy as made available by Fluidstack;
- comply with all applicable law in relation to the receipt and use of the Software and Services; and
- take full responsibility and accept all liability under all applicable laws in respect of the use it makes of the Software and Services and the results it achieves from them, including complying with all applicable regulations concerning data protection and artificial intelligence.
The Customer will not use the Software and Services, nor permit them to be used:
- for any purpose that is unlawful or prohibited under any applicable law or regulation or prohibited by these Terms and Conditions;
- to commit any act of fraud, money laundering or data falsification;
- for the mining of any cryptocurrency without the prior written consent of Fluidstack;
- to create, store, access, transfer to any third party or otherwise distribute any code or device intended to interfere with, or having the effect of interfering adversely with, the operation of any hardware or software, including any virus, disabling code (including code intended to limit or prevent any use any software or system) or other malicious software (including bugs, worms, logic bombs, malware, trojan horses, ransomware and spyware), or any other material which is unlawful;
- for purposes of promoting unsolicited advertising or sending spam;
- to simulate communications from Fluidstack or another service or entity in order to collect identity information, authentication credentials, or other information (e.g. phishing);
- in any manner that disrupts the operations, business, equipment, websites or systems of Fluidstack or any other person or entity (including any denial of service and similar attacks);
- in any manner that harms or may endanger minors or any other person;
- in connection with any service, use or purpose where the failure of the Services (or any part) may endanger the health or life of any person or cause damage or loss to any tangible property or the environment;
- to gain unauthorised access to or use of any computers, data, systems, accounts or networks of any person, including attempting to probe, scan, or test the vulnerability of a system;
- to re-sell, export, re export, transfer, divert, or otherwise dispose of the Software and Services without Fluidstack's prior written consent.
If Fluidstack's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, Fluidstack will have the right to suspend the Software and performance of the Services where reasonably required until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Fluidstack's performance of any of its obligations;
- Fluidstack will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Fluidstack's failure or delay to perform any of its obligations as set out in this Clause 4; and
- the Customer will reimburse Fluidstack on written demand for any costs or losses sustained or incurred by Fluidstack arising directly or indirectly from the Customer Default.
5. Fees and payment
Customer will pay the Fees by the payment dates set out in each Order. Unless otherwise stated in an Order all Fees are payable in advance. The Customer will not withhold payment of Fees for any reason and timely payment will be of the essence.
Unless expressly stated otherwise in the Order, all Fees are non-cancellable, non-refundable, payable in U.S. Dollars, and will be paid in full (without any set off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law)) in cleared funds to a bank account nominated by Fluidstack.
Where Fees are charged:
- on a per-minute or per-hour basis: the Customer may be required to deposit sufficient funds with Fluidstack in advance. Access to such Services (and corresponding Software in the Order) may cease if the Customer account with Fluidstack has insufficient funds or otherwise fails to meet the payment terms; or
- on a subscription basis: the Services will renew automatically unless the Customer cancels its subscription before renewal (either directly in the Customer account with Fluidstack or by contacting the Fluidstack support team). If the Customer cancels its subscription before renewal: (a) the Services will continue until the end of the current subscription term; and (b) Customer will not receive a refund for any Services already paid for.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of sales taxes, VAT or other similar taxes chargeable from time to time. Where any taxable supply for sales tax or VAT purposes is made under the Contract by Fluidstack, the Customer will, on receipt of a valid invoice from Fluidstack, pay to Fluidstack such additional amounts in respect of sales tax or VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
For credit card payments, payment is handled by a third party. The Customer’s credit card statement may identify payments as made to “Fluidstack” or “Stripe”. Customer is responsible for any foreign transaction fees incurred by the Customer’s bank. Customer will abide by any relevant terms and conditions or other legal agreement, whether with Fluidstack or a third party, that governs the Customer use of a given payment processing method. Fluidstack may add or remove payment processing methods at its sole discretion and without notice to the Customer. Once an Order is placed, Fluidstack or its third party payment processor will charge Customer’s credit card or other form of payment, along with any additional applicable amounts (including any taxes). Customer is solely responsible for all amounts payable associated with purchases made in accordance with an Order. The Customer will be charged at the rate applicable at the time of use.
If the Customer fails to make a payment under the Contract by the due date, then, without limiting Fluidstack's other remedies the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 10% a year.
For a renewal term, Fluidstack may increase the fees by providing no less than 30 days notice in writing, by the greater of (i) 3% compounded annually over the duration of the immediately preceding term for the individual Service, or (ii) the percentage rate of increase for the same period in the Consumer Price Index or, if such index is not available, such other index as the parties may agree most closely resembles such index.
6. Intellectual property rights
Fluidstack will, as between the parties, retain ownership of all Intellectual Property Rights in the Software and Services, and in any materials created by Fluidstack (or anyone acting on its behalf) in the course of providing the Software and Services, whether those materials are provided to the Customer or not. The Customer will execute all such documents and do such things as Fluidstack may consider necessary to give effect to this Clause 6.1. Except as expressly stated in these Terms and Conditions, these Terms and Conditions do not grant the Customer any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Software and Services.
The Customer will, as between the parties, retain ownership of all Intellectual Property Rights in the Customer Data. Subject to the provisions of these Terms and Conditions, Fluidstack will not access any Customer Data in relation to the Services unless the Customer has given its prior written consent.
7. Confidentiality
Each party agrees that it may use the other party’s Confidential Information only in the exercise of its rights and performance of its obligations under the Contract and that it will not disclose the other party’s Confidential Information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this Clause 7.
Each party may disclose the other party’s Confidential Information to those of its employees, officers, group companies, actual and potential lenders and investors, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under the Contract provided that the disclosing party will ensure that each of its employees, officers, advisers or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this Clause 7 as if it were a party.
Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction. To the extent permitted by law, Customer will provide Fluidstack with notice prior to disclosing any information pursuant to this Clause 7.3.
8. Data
Unless stated otherwise, each party will be an independent data controller in respect of personal data collected, received and processed in connection with the exercise and performance of its rights and obligations under the Contract.
Unless otherwise approved in writing by Fluidstack in advance, the Customer is not permitted to use the Software and Services to process or upload any personal data. If the Customer requires Fluidstack to process any personal data as part of the Software and Services, the Customer will notify Fluidstack in writing and will, in accordance with the directions of Fluidstack, enter into a suitable data sharing agreement.
Subject to Clause 8.2, Fluidstack will have no liability to the Customer under the Contract in relation to any processing of personal data via the Software and Services.
The Customer may specify the region in which Customer Data will be stored. The Customer consents to the storage of Customer Data in, and transfer of to, the regions selected. Fluidstack will not access or use Customer Data except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.
9. Representations and warranties
Each party represents and warrants to the other that it has full power and authority to enter into and perform its obligations under the Contract.
The Customer represents and warrants that, during the term of the Contract and for 12 months following the expiry or termination of the Contract, the Customer will: (i) make all payments for the Software and Services directly to Fluidstack and will not circumvent the payment methods offered by Fluidstack; and (ii) not attempt to contact, communicate, or enter into a contract with any supplier of Fluidstack or its Affiliates with a view to using the Software and Services (or similar services) without Fluidstack. The restrictions in this Clause 9.2 will not apply in circumstances where, and to the extent that, the Customer and Fluidstack's supplier entered into a contract for services similar to the Services prior to entering into the Contract.
Fluidstack warrants to the Customer that: (i) it has the right, power and authority to grant the Customer the rights set out in the Contract and to provide the Services in accordance with the Service Levels; (ii) the Services will be provided using reasonable care and skill; (iii) use of the Services will not infringe the Intellectual Property Rights of any third party and (iv) the Services will, under normal operating conditions, substantially conform to the functionality described in the Order; and (v) Fluidstack will not materially decrease the overall security or functionality of the Services. Fluidstack does not warrant that the use of the Services will be uninterrupted or error-free. Customer acknowledges that any Software provided by Fluidstack is provided "as is". Fluidstack does not warrant that the use of the Software will be uninterrupted or error-free.
Fluidstack is not responsible for any delays, delivery failures, technical issues or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Other than as set out in these terms and conditions, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
10. Indemnity.
The Customer will indemnify Fluidstack and its Affiliates against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Fluidstack arising out of or in connection with (a) any breach of Clause 5 (Fees and payment), 8 (data), 9 (Representations and warranties), 14 (Compliance); or (b) any action, demand or claim: (i) that the transmission, receipt, copying, installation, use, possession or other utilisation of the Customer Data infringes the Intellectual Property Rights or any other rights of any third party, or violates any applicable law; or (ii) that the Customer's use of the Services violates any applicable law.
11. Limitation of liability
THE EXTENT OF FLUIDSTACK'S LIABILITY UNDER OR IN CONNECTION WITH THE CONTRACT, INCLUDING ALL ORDERS (REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT OR IN ANY OTHER WAY AND WHETHER OR NOT CAUSED BY NEGLIGENCE OR MISREPRESENTATION) WILL BE AS SET OUT IN THIS CLAUSE 11.
SUBJECT TO CLAUSES 11.3 AND 11.5, THE TOTAL AGGREGATE LIABILITY OF FLUIDSTACK TO THE CUSTOMER UNDER THE CONTRACT WILL NOT EXCEED:
- IN RESPECT OF ANY CLAIM THAT THERE HAS BEEN A TOTAL FAILURE BY FLUIDSTACK TO PROVIDE THE SERVICES, A SUM EQUAL TO THE FEES ACTUALLY PAID BY THE CUSTOMER TO FLUIDSTACK PURSUANT TO THE CONTRACT;
- IN RESPECT OF ANY CLAIM THAT THERE HAS BEEN A FAILURE BY FLUIDSTACK TO PROVIDE SOME (BUT NOT ALL) OF THE SERVICES, A SUM EQUAL TO THE RELEVANT PORTION OF THE FEES (BEING THE PORTION WHICH RELATES TO THE SERVICES NOT PROVIDED) ACTUALLY PAID BY THE CUSTOMER TO FLUIDSTACK PURSUANT TO THE CONTRACT;
- IN RESPECT OF DOWNTIME PERIODS, THE REMEDIES SPECIFIED IN SCHEDULE 1; AND
- IN RESPECT OF EVERYTHING ELSE (INCLUDING ANY CLAIM THAT THE SERVICES ARE SUBSTANDARD, OR FLUIDSTACK HAS BREACHED ITS OBLIGATIONS), THE LESSER OF (i) $10,000,000 and (ii) 100% OF THE FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER.
SUBJECT TO CLAUSE 11.5, FLUIDSTACK WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY OF THE FOLLOWING (WHETHER DIRECT OR INDIRECT): (A) CONSEQUENTIAL, INDIRECT OR SPECIAL LOSSES; (B) LOSS OF PROFIT; (C) LOSS OF REVENUE; (D) LOSS OR CORRUPTION OF DATA; (E) LOSS OF CONTRACT; (F) LOSS OF COMMERCIAL OPPORTUNITY; (G) LOSS OF SAVINGS, DISCOUNT OR REBATE (WHETHER ACTUAL OR ANTICIPATED); AND/OR (H) HARM TO REPUTATION OR LOSS OF GOODWILL.
EXCEPT AS EXPRESSLY STATED IN THE CONTRACT, AND SUBJECT TO CLAUSE 11.5, ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE ARE EXCLUDED TO THE EXTENT PERMITTED BY LAW.
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, EACH PARTY'S LIABILITY WILL NOT BE LIMITED IN ANY WAY IN RESPECT OF THE FOLLOWING: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) ANY INDEMNITIES GIVEN BY EITHER PARTY UNDER THESE TERMS AND CONDITIONS; OR (D) ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
SUBJECT TO CLAUSE 11.5, NO CLAIM MAY BE MADE AGAINST FLUIDSTACK UNLESS: (A) WRITTEN NOTICE OF SUCH CLAIM IS SERVED ON FLUIDSTACK GIVING REASONABLE DETAILS OF THE CLAIM WITHIN 12 MONTHS OF THE DATE ON WHICH THE BREACH FIRST OCCURRED THAT GAVE RISE TO THE CLAIM OR SERIES OF CONNECTED CLAIMS; AND (B) SUCH CLAIM IS ISSUED WITHIN 12 MONTHS OF THE DATE ON WHICH THE BREACH FIRST OCCURRED THAT GAVE RISE TO THE CLAIM OR SERIES OF CONNECTED CLAIMS.
12. Suspension
Fluidstack will have the right to suspend the Services (in whole or part) without liability and upon reasonable written notice to the Customer if: (a) there is a security threat; (b) payment of Fees are not made on time; (c) doing so is necessary to maintain compliance with any applicable law; or (d) the Customer is in breach of these Terms and Conditions.
If Fluidstack delivers a written notice requiring the suspension of Services pursuant to Clause 12.1, both parties agree to act reasonably and promptly discuss in good faith: (a) mitigation measures by both parties; (b) the foreseeable duration of such suspension; and (c) the impact, if any, on timelines and costs relating to the Services.
In the event of such a suspension: (a) Fluidstack will not be liable for any loss or damage to the Customer including any liability it may incur to third parties; (b) no such period will be taken into account in calculating any Service Levels; (c) Fluidstack will be entitled to charge and be paid all Fees that would have otherwise been due.
13. Termination
Without affecting any other right or remedy available to it, Fluidstack may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits breach of Clauses 4.2 (prohibited uses) or 14 (Compliance), or other material breach and such breach is in Fluidstack's opinion irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the Customer has failed to pay any amount due under the Contract and such amount(s) remains unpaid after the Customer has received notification that the payment is overdue;
- the Customer has failed to pay any amount due in advance of the commencement of Services;
- the Customer is the subject of an Insolvency Event (as defined herein); Insolvency Event means (a) being a company, is deemed unable to pay its debts within the meaning of any applicable law (without any requirement to prove a matter stated therein to a court) or any meeting is convened for the purpose of considering a resolution for, or any application or petition is presented or any other step is taken for the purposes of making an administration order against it, or for the appointment of an administrator over it, or for the winding-up or dissolution of it; (b) has a receiver, manager or trustee appointed over, or any encumbrancer takes possession of, the whole or any part of its business or assets; (c) has taken any steps with a view to proposing or entering into any composition, compromise, voluntary arrangement or any analogous procedure involving the party and its creditors or any class of them; (d) suspends or ceases to carry on business or any material part of its business; (e) applies to court for, or obtains, a form of insolvency moratorium under any applicable law; or (f) an event occurs which is analogous to any of the foregoing events anywhere in the world;
- it becomes unlawful for Fluidstack to provide all or any part of the Services to the Customer under applicable law; or
- the Customer suspends or ceases, or threatens to suspend or cease, carrying on business, or its financial position deteriorates so far as to reasonably justify the opinion that its ability to perform its obligations under the Contract is in jeopardy.
Without affecting any other right or remedy available to it, the Customer may terminate the Contract with immediate effect by giving written notice to Fluidstack if Fluidstack commits a material breach and fails to remedy that breach within a period of 30 days after being notified in writing to do so.
Upon termination or expiry of the Contract for any reason:
- the obligation on Fluidstack to provide the Software and Services and any rights and licences granted by Fluidstack under the Contract will immediately terminate and Customer Data may be deleted;
- the Customer must cease all activities authorised under the Contract;
- the Customer will immediately pay all sums outstanding to Fluidstack;
- each party will return to the other party and make no further use of any materials, software or other items whatsoever (or of any copies of them) belonging to the other party and/or provided by it pursuant to the Contract; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach which existed at or before the date of termination will not be affected or prejudiced.
Termination or expiry of the Contract will not affect those provisions which expressly or by necessary implication are intended to survive termination.
14. Compliance
Each party will comply, and is solely responsible for its compliance, with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to U.S. companies and persons, economic sanctions programs implemented by the Office of Foreign Assets Control and other U.S. government agencies, AML and KYC requirements to which the Customer is subject, and any applicable laws and regulations in the jurisdictions in which it conducts business, all of which the Customer represents and warrants it is currently in compliance with. The Customer is solely responsible for compliance related to the manner in which it chooses to use the Services, including the transfer and processing of Customer Data. The Customer represents and warrants that it and its financial institutions, and any party that owns or controls the Customer or its financial institutions, are not subject to sanctions, located, or conducting business in any country that is subject to sanctions, or otherwise designated on any list of prohibited or restricted parties or countries, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g. the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the United Kingdom, the European Union or its Member States, Switzerland, or other applicable government authority.
Each party will cooperate and assist upon request by the other party with any and all dealing with any relevant regulatory authority and will otherwise cooperate with any regulatory authority in relation to the Contract.
15. General
Announcements. Customer agrees that Fluidstack may refer to the Customer being a customer of Fluidstack for marketing purposes, including by displaying Customer's company (or trading) name, logo and/or any other non-confidential company information on Fluidstack's website or in any other promotional material. As a condition of use of the Services, Customer agrees not to use Fluidstack's trade marks, logos or trade names in any manner, without consent in writing.
Non-solicitation. During the term of the Contract and for 12 months following the term of the Contract, the Customer agrees that, other than by means of a general recruitment exercise open to all applicants and not specifically targeted at any of the personnel of Fluidstack (or its Affiliates), the Customer will not, without the prior written consent of Fluidstack: (a) directly or indirectly, solicit the employment of, employ, or contract with, any personnel of Fluidstack or its Affiliates; or (b) assist (or instruct) a third party in the employment, contracting, or subcontracting of any personnel of Fluidstack or its Affiliates.
Force majeure. If Fluidstack is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (as defined below), Fluidstack will not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations will be extended accordingly. Fluidstack will: (i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. Fluidstack will be entitled to charge and be paid all Fees that would have otherwise been due. Force Majeure Event means any circumstance not within Fluidstack's reasonable control, including: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) non performance by suppliers or subcontractors (other than by companies in the same group as Fluidstack); and (h) interruption or failure of utility, data centre, or internet service.
Assignment, subcontracting and other dealings. The Customer will not, without the prior written consent of Fluidstack, assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under the Contract. Fluidstack may at any time assign, novate, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract upon notification (and the Customer provides its advance consents to any such dealing), including as security or collateral in relation to any financing.
Variation. No variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives), save that Fluidstack may vary the Contract if necessary to comply with any applicable law or regulatory requirement (and any such variation will become effective upon written notification to the Customer).
Waiver
- A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
- A failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms and Conditions or by law will prevent or restrict the further exercise of that or any other right or remedy.
- Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of these Terms and Conditions and the parties will negotiate in good faith a replacement provision.
No partnership or agency. Nothing in these Terms and Conditions is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Notices. A notice given to a party under or in connection with the Contract will be in writing and sent to the party at the address or email address given in the Contract or as otherwise notified in writing to the other party, as the case may be. If a notice is sent by post, it is deemed delivered at 9am on the second business day after posting. If a notice is sent by email or other electronic means, it is deemed delivered at the time of transmission. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third party rights. Except as otherwise stated herein, these Terms and Conditions do not give rise to any rights for a third party to enforce any provision of the Contract. The rights granted to Fluidstack in these Terms and Conditions will be enforceable by any Affiliate or any funder of an Affiliate that has a security interest in Fluidstack.
Entire agreement. The Contract constitutes the entire agreement between the parties. These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or an Order. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.
16. Dispute resolution procedure
If a dispute arises out of or in connection with Fluidstack's performance of its obligations under these Terms and Conditions (Dispute), the Customer will, except as expressly provided in these Terms and Conditions or unless the right to issue proceedings would otherwise be prejudiced by a delay: (a) give Fluidstack written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, Fluidstack and the Customer will attempt in good faith to resolve the Dispute; and (b) not commence any court or arbitration proceedings in relation to the whole or part of the Dispute until it has attempted to settle the Dispute with Fluidstack for at least 60 days.
17. Governing law and jurisdiction.
Except as otherwise stated in clause 17.2, the Contract and any non-contractual obligations arising from it will be governed by and construed in accordance with the laws of England. The parties will refer any dispute or claim arising under the Contract for final resolution by arbitration administered in London by the London Court of International Arbitration in accordance with the London Court of International Arbitration Rules, except when a party seeks immediate injunctive relief that would not be reasonably effective unless obtained in the jurisdiction of the conduct at issue. The tribunal shall consist of three arbitrators. The language of the arbitration shall be English.
If the Contract is entered into with Fluidstack Inc., then the Contract and any non-contractual obligations arising from it will be governed by and construed in accordance with the laws of the State of New York (USA). The parties will refer any dispute or claim arising under the Contract for final resolution by arbitration in New York City, New York to the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, except when a party seeks immediate injunctive relief that would not be reasonably effective unless obtained in the jurisdiction of the conduct at issue. The tribunal shall consist of three arbitrators.
The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Contract.
Schedule 1, Service Levels
In this Schedule, the following capitalised terms mean:
Downtime means the occurrence of a disruption involving the loss of external connectivity to the relevant Services, excluding disruption resulting in whole or in part from any of the following: (a) any loss of external connectivity caused by disruptions in networks upstream of the relevant data centre’s border routers; (b) Downtime caused by acts or omissions of the Customer, or any access the Customer is responsible for; (c) Downtime caused by software not provided by Fluidstack running on the Customer’s machines; (d) Downtime experienced in the context of scheduled maintenance which Fluidstack has announced in advance; (e) Downtime due to unscheduled maintenance when such maintenance was performed to rectify an incident or problem that Fluidstack believes would likely have resulted in a prolonged downtime; (f) Downtime caused by events outside of Fluidstack's control, including but not limited to any Force Majeure Event, failures, acts or omissions of Fluidstack upstream providers or failures of the internet; (g) Downtime caused by actions of third parties, including but not limited to security compromises, denial of service attacks and viruses provided Fluidstack makes reasonable efforts to keep its software and systems up to date; (h) Downtime experienced in connection with a breach of the Terms and Conditions without regard as to whether the Customer or a third party is accountable for such breach; (i) Downtime experienced in connection with law enforcement activity without regard as to whether the Customer or a third party is accountable for such law enforcement activity; and (j) Downtime experienced in connection to power-cuts; internet breakdowns; malfunction of the equipment used for the provision of the Services that are not the fault of Fluidstack;
Downtime Period means any period comprising one or more consecutive minutes of Downtime. Any partial minutes or instances of intermittent Downtime lasting less than one minute will not be attributed towards the calculation of any Downtime Periods.
1. Service Levels
Unless otherwise specified in an Order, Fluidstack warrants that it will provide 99% network availability in any given calendar month. The network is deemed available if the border routers and core-switches are responding to Fluidstack’s monitoring tools. The relevant monitoring tools check such border routers and core-switches at least every 15 seconds.
Where applicable as per an Order, Service credits are calculated on a monthly basis and are Customer's sole and exclusive remedy for Downtime Periods each month.
Where service credits are due in any given month, the Customer will notify Fluidstack and Fluidstack will account for such service credits in the monthly billing cycle following notification as set out in an Order. Fluidstack will not in any circumstances be obliged to pay any money or make any refund to the Customer in respect of any Downtime Periods.