On-demand GPU compute agreement

On-demand GPU compute agreement

The Parties agree as follows:

1. 1Definitions and interpretation

   1. 1.1

      In this agreement:

      1. (a)“Account” means Customer’s account for the Services, and “Authorised User” means a person Customer permits to use it;
      2. (b)“Business Day” means a day other than a Saturday, Sunday or public holiday in [country];
      3. (c)“Charges” means the amounts payable under sections 5 and 7;
      4. (d)“Console” means Provider’s web portal and application programming interface for managing the Account and the Services;
      5. (e)“Credits” means prepaid balances bought by Customer and promotional balances granted by Provider, usable to pay Charges under section 6;
      6. (f)“Customer Data” means all data, software, models and other content that Customer or its Authorised Users store on, process with or transmit through the Services, and “Customer Personal Data” means personal data within it;
      7. (g)“Facility” means each datacenter listed in Schedule 1;
      8. (h)“GPU-Hour” means one GPU allocated to Customer for one hour, and “GPU-Month” means one GPU reserved for one calendar month;
      9. (i)“Instance” means a virtual machine, container or bare-metal server with one or more GPUs provisioned for Customer;
      10. (j)“Order” means a request for Services made through the Console or by an order form signed by both Parties that refers to this agreement (an “Order Form”);
      11. (k)“Rate Card” means the rates and service descriptions in Schedule 1, as changed under section 13;
      12. (l)“Sanctions and Export Control Laws” means the sanctions and export, re-export and transfer controls of the European Union, its member states, the United Nations, [the United Kingdom], [the United States] and any other applicable jurisdiction, and “Sanctioned Person” means anyone targeted by them, directly or through ownership, control or location;
      13. (m)“Services” means the GPU compute, storage, networking, support and other services Provider makes available under this agreement;
      14. (n)“SLA Schedule” means the service level schedule attached as Annex A or referred to in an Order Form; and
      15. (o)“Usage Records” means the records of Customer’s use of the Services produced by Provider’s metering systems.

2. 2Structure of the agreement

   1. 2.1

      This agreement sets the terms on which Customer may buy the Services. Customer need not buy any minimum quantity, except under a Monthly Reservation it has confirmed or a Committed Spend under section 7.

   2. 2.2

      Customer places Orders by launching Instances or confirming Monthly Reservations in the Console, or by signing an Order Form. Each Order is governed by this agreement.

   3. 2.3

      If there is a conflict, Schedule 3 prevails on the processing of Customer Personal Data, then an Order Form for its Order, then these clauses, then Schedules 1 and 2.

   4. 2.4

      Provider may decline an Order if capacity is not available, if Customer has not been verified under clause 8.4, or if Customer is in breach of this agreement.

3. 3Services and availability

   1. 3.1

      Provider makes available the Instance types, storage, networking and support described in the Rate Card, from the Facilities.

   2. 3.2

      On-demand capacity is provided subject to availability, and Provider does not guarantee that any Instance type will be available when requested. Once launched, an Instance billed per GPU-Hour (an “On-Demand Instance”) stays allocated to Customer until Customer stops or terminates it, subject to sections 12 and 15.

   3. 3.3

      When Provider confirms a reservation in the Console or an Order Form, it shall hold the specified GPUs for Customer for the reserved calendar months (a “Monthly Reservation”). Customer shall pay the GPU-Month rate for every reserved GPU, used or not, and may not cancel a confirmed Monthly Reservation except as the Rate Card allows.

   4. 3.4

      Where the Rate Card offers them, Customer may run Instances at a reduced rate that Provider may reclaim on at least [number] minutes’ notice (“Interruptible Instances”). Customer is responsible for saving its work, pays only for running time, and no service levels apply.

   5. 3.5

      Provider may change the hardware behind an Instance type if it continues to meet its published specification. Customer Data stays in the Facility Customer selects unless Customer agrees otherwise or Schedule 3 permits.

4. 4Accounts and access

   1. 4.1

      Customer shall keep its Account information accurate, ensure only Authorised Users access the Account, keep credentials and API keys secure, and use multi-factor authentication where offered.

   2. 4.2

      Customer is responsible for its Authorised Users and for all use of and Charges on its Account, including where credentials are compromised, unless the compromise was caused by Provider’s breach of section 9.

   3. 4.3

      Provider shall apply in good faith the spending limits Customer sets in the Console, but Customer remains liable for Charges incurred before a limit takes effect.

5. 5Charges, metering and billing

   1. 5.1

      Customer shall pay at the rates in the Rate Card in force when the usage occurs, or in an applicable Order Form: On-Demand and Interruptible Instances per GPU-Hour, Monthly Reservations per GPU-Month, and storage, data transfer, IP addresses and support as the Rate Card states.

   2. 5.2

      GPU usage is charged from when an Instance is available to Customer until Customer stops or terminates it, in the billing increments and subject to the minimum charge in the Rate Card. A stopped Instance incurs no GPU charges, but its storage is charged until deleted.

   3. 5.3

      Provider shall show Usage Records in the Console, updated at least [daily], and keep them for at least [24] months.

   4. 5.4

      Charges are deducted from Credits where Customer has them. Other Charges are invoiced monthly in arrears and payable within [number] days, or charged to Customer’s registered payment method where the Rate Card provides.

   5. 5.5

      Customer may dispute a charge within [30] days after its invoice or deduction date, giving reasons and identifying the Instances and period, and shall pay the undisputed part. Within [ten] Business Days Provider shall provide the relevant Usage Records with an explanation, and correct any error by credit note or refund. Usage Records are evidence of usage unless shown to be wrong, and charges not disputed in time are accepted, except for manifest error or fraud. An unresolved dispute may be referred under section 20 after [30] days.

   6. 5.6

      Overdue amounts carry interest at [rate] per cent per year above [reference rate] / [the statutory rate for late commercial payments]. The Charges exclude value added tax, which Customer shall pay in addition or account for under the reverse-charge mechanism.

   7. 5.7

      Provider may set a credit limit and, if it is exceeded or Provider reasonably doubts Customer’s ability to pay, require Credits, a deposit or a guarantee before further usage.

6. 6Prepaid Credits

   1. 6.1

      Customer may buy Credits through the Console or an Order Form, and Provider deducts Charges from them as incurred. Purchased Credits expire [12] months after purchase unless an Order Form says otherwise, and expired Credits are forfeited.

   2. 6.2

      Credits are not refundable, transferable or exchangeable for cash, except under clauses 13.2 and 16.2 or as required by law.

   3. 6.3

      Promotional Credits are used before purchased Credits, may carry extra conditions and earlier expiry, and have no value on termination.

   4. 6.4

      Provider shall notify Customer when its Credits fall below [amount]. If they reach zero and Customer has no other valid payment method, Provider may stop Customer’s Instances after [24] hours’ notice. Persistent storage is kept for [number] days and may then be deleted under clause 9.5.

7. 7Committed spend discounts

   1. 7.1

      Where an Order Form states a committed spend (the “Committed Spend”) for a period (the “Commitment Period”), Customer commits to Eligible Spend of at least the Committed Spend in that period and receives the discount for the applicable tier in Schedule 2.

   2. 7.2

      “Eligible Spend” means the Charges, after discount, for the Services listed as eligible in Schedule 2, excluding taxes, amounts paid with promotional Credits and [Interruptible Instances].

   3. 7.3

      If Eligible Spend at the end of a Commitment Period is below the Committed Spend, Provider shall invoice the difference (the “Shortfall”), payable under clause 5.4. [If Customer renews at the same or a higher tier, it may instead carry the Shortfall forward once into the next Commitment Period.]

   4. 7.4

      During a Commitment Period, rate increases under clause 13.1 do not apply to Eligible Spend [or are limited to [number] per cent].

   5. 7.5

      If the Commitment Period ends early because Provider terminates under clause 15.3 or 15.4, or Customer terminates for convenience under clause 15.2, the Shortfall for the whole Commitment Period becomes payable. No Shortfall is payable if Customer terminates under clause 13.2 or 15.3, or Provider terminates for convenience under clause 15.2.

8. 8Acceptable use, export controls and sanctions

   1. 8.1

      Customer shall use the Services lawfully and in accordance with Provider’s acceptable use policy [attached as Annex B / published in the Console], and shall ensure its Authorised Users do not:

      1. (a)infringe the rights of any person, or store or distribute unlawful content;
      2. (b)attack or gain unauthorised access to any system, distribute malware or send unsolicited bulk messages;
      3. (c)interfere with other customers or try to break the isolation between Instances; or
      4. (d)mine cryptocurrency or run similar proof-of-work workloads, unless an Order Form permits it.
   2. 8.2

      Customer shall not resell access to the Services as a standalone compute or hosting service without Provider’s consent, but may use the Services to provide its own products to its customers.

   3. 8.3

      Customer represents and undertakes that:

      1. (a)neither it nor any of its directors or controlling owners is a Sanctioned Person;
      2. (b)it will not allow any Sanctioned Person to access the Services or their outputs, nor access the Services from a territory where that is prohibited; and
      3. (c)it will not use the Services for any end use prohibited by Sanctions and Export Control Laws, including weapons of mass destruction or restricted military uses.
   4. 8.4

      Provider may verify Customer’s identity, ownership, payment method and intended use before activating the Account or accepting an Order, and later. Customer shall promptly provide the information requested and notify any change that makes clause 8.3 untrue. Provider may investigate suspected breaches of this section.

9. 9Customer Data and security

   1. 9.1

      Customer owns all Customer Data. Provider shall not access, copy or use it, except to host and process it as needed for the Services, to give support Customer requests, as required by law (notifying Customer where permitted), or as Schedule 3 allows.

   2. 9.2

      Provider may use technical data about Customer’s use of the Services, such as run times and resource consumption, to operate, bill, secure and improve the Services. This excludes the content of Customer Data, and Provider shall not disclose it in a form identifying Customer.

   3. 9.3

      Provider shall maintain appropriate technical and organisational measures, including physical security, isolation between customers’ Instances and networks, and logged administrative access. Customer is responsible for the security of the systems, data and access controls it manages.

   4. 9.4

      Provider shall notify Customer without undue delay, and within [48] hours of becoming aware, of any security incident affecting Customer Data.

   5. 9.5

      Provider shall erase the local storage of a terminated Instance before allocating the hardware to another customer. Persistent storage that Customer deletes, and Customer Data kept beyond the periods in clauses 6.4 and 16.1, shall be deleted irrecoverably within [number] days, unless the law requires otherwise.

   6. 9.6

      Customer is responsible for backing up Customer Data unless it buys a backup service from the Rate Card.

10. 10Personal data

    1. 10.1

       Each Party processes the business contact details of the other’s personnel, and Provider processes Account and billing information, as an independent controller, only to manage this agreement and in compliance with data protection law, including the General Data Protection Regulation (EU) 2016/679 (“GDPR”).

    2. 10.2

       In providing the Services, Provider processes Customer Personal Data as Customer’s processor, or as sub-processor where Customer is itself a processor. Schedule 3 governs that processing and forms the contract required by Article 28(3) GDPR.

    3. 10.3

       Customer is responsible for its lawful basis and for informing data subjects, decides what data it processes using the Services, and shall assess whether the measures in Schedule 3 suit that data, in particular special categories of personal data.

11. 11Service levels and support

    1. 11.1

       Provider shall use reasonable endeavours to provide running On-Demand Instances and Monthly Reservations in accordance with the SLA Schedule, where one applies. Otherwise no service credits are payable and Provider shall act with reasonable skill and care.

    2. 11.2

       Service levels cover Instances that are running or reserved, not the availability of new capacity, and do not apply to Interruptible Instances, preview features, or unavailability caused by Customer, planned maintenance under clause 11.4 or suspension under section 12.

    3. 11.3

       Service credits must be claimed in the Console within [30] days after the month concerned, are issued as Credits, are capped at [number] per cent of that month’s Charges for the affected Service, and are Customer’s sole financial remedy for failing a service level.

    4. 11.4

       Provider shall provide support as described for Customer’s support tier in the Rate Card, give at least [five] Business Days’ notice in the Console of planned maintenance affecting running Instances, and agree in advance the timing of any maintenance affecting a Monthly Reservation.

12. 12Suspension

    1. 12.1

       Provider may suspend the Account or any Service by notice if:

       1. (a)an undisputed amount is unpaid [ten] days after notice, or Customer has no Credits and no valid payment method (subject to clause 6.4);
       2. (b)Customer breaches section 8, or its use poses a serious and imminent risk to the Services or other customers;
       3. (c)Provider reasonably suspects fraud or compromised credentials; or
       4. (d)suspension is required by law, a competent authority or Sanctions and Export Control Laws.
    2. 12.2

       Provider shall limit any suspension to what is reasonably necessary, give prior notice where practicable and lawful, not delete Customer Data except under clause 9.5, and restore the Services promptly once the cause is remedied.

    3. 12.3

       Charges for Monthly Reservations and storage continue during a suspension under clause 12.1(a) or 12.1(b); GPU-Hour Charges do not accrue for stopped Instances.

13. 13Changes to the Services and rates

    1. 13.1

       Provider may change Rate Card rates on at least [30] days’ notice in the Console and by email. A change does not affect confirmed Monthly Reservations, rates fixed in an Order Form, or Eligible Spend protected under clause 7.4. Reductions may apply immediately.

    2. 13.2

       If Provider increases the rate for a Service Customer uses, Customer may terminate this agreement by notice before the increase takes effect, and Provider shall refund unused purchased Credits.

    3. 13.3

       Provider may withdraw an Instance type or Facility on at least [90] days’ notice, offering a reasonable alternative where available, and shall honour confirmed Monthly Reservations.

    4. 13.4

       Provider may change these clauses on [30] days’ notice where the change is required by law or does not materially reduce Customer’s rights. Any other change needs Customer’s written agreement.

14. 14Liability

    1. 14.1

       Nothing in this agreement limits liability for death or personal injury caused by negligence, for fraud, or for anything else that cannot lawfully be limited.

    2. 14.2

       Subject to clause 14.1, neither Party is liable for indirect or consequential loss, or for loss of profit, revenue, business, contracts or goodwill. This does not limit Customer’s obligation to pay the Charges or any Shortfall.

    3. 14.3

       Subject to clauses 14.1 and 14.4, each Party’s total liability for all events in any twelve-month period is limited to the Charges paid and payable in the twelve months before the first such event.

    4. 14.4

       The limit in clause 14.3 does not apply to Customer’s payment obligations, the indemnity in clause 14.6, Customer’s breach of clause 8.3 or breach of section 17. Provider’s total liability for breach of section 9, section 10 or Schedule 3 is limited to [amount] in any twelve-month period, in place of the limit in clause 14.3.

    5. 14.5

       For loss of Customer Data caused by its breach, Provider is liable only for the reasonable cost of restoring the data from Customer’s latest backup.

    6. 14.6

       Customer shall indemnify Provider against third-party claims relating to Customer Data or Customer’s breach of section 8, provided Provider notifies the claim promptly and lets Customer conduct the defence.

15. 15Term and termination

    1. 15.1

       This agreement starts on the Effective Date and continues until terminated under this section or clause 13.2.

    2. 15.2

       Either Party may terminate for convenience on [30] days’ notice. This does not release Customer from Charges for confirmed Monthly Reservations or from a Shortfall payable under clause 7.5, and an Order Form with a fixed term continues until it ends unless it allows earlier termination.

    3. 15.3

       Either Party may terminate immediately by notice if the other commits a material breach not remedied within [30] days of notice, or becomes insolvent, enters liquidation, administration or an arrangement with creditors, or anything similar.

    4. 15.4

       Provider may terminate immediately by notice if Customer breaches clause 8.3, if continuing would breach Sanctions and Export Control Laws, or if the Account has been suspended under clause 12.1(a) for more than [30] days.

16. 16Consequences of termination

    1. 16.1

       On termination, Provider shall stop Customer’s Instances. Customer may retrieve Customer Data from persistent storage for [30] days afterwards (the “Retrieval Period”), paying storage and data transfer Charges, after which Provider shall delete it under clause 9.5 and Schedule 3. After termination under clause 15.4 for sanctions reasons, Provider may restrict retrieval as the law requires.

    2. 16.2

       If Customer terminates under clause 13.2 or 15.3, or Provider terminates for convenience, Provider shall refund unused purchased Credits and Monthly Reservation Charges paid for the period after termination. Otherwise unused Credits are forfeited, except as required by law.

    3. 16.3

       All accrued Charges and any Shortfall under clause 7.5 become due on termination. Accrued rights are unaffected, and clauses 5.5, 5.6 and 9.5, sections 10, 14, 16, 17, 19 and 20, and Schedule 3 for as long as Provider holds Customer Personal Data, survive termination.

17. 17Confidentiality

    1. 17.1

       Each Party shall keep confidential the terms of any Order Form and the other’s non-public information, use it only to perform this agreement, and disclose it only to affiliates, advisers and subcontractors who need it and are bound by equivalent duties, or as required by law. This section continues for [three] years after this agreement ends. Customer Data is protected under sections 9 and 10.

18. 18Introduction through the platform

    1. 18.1

       The Parties acknowledge that they were introduced through AICapacity and that the terms of use of AICapacity that each of them has accepted continue to apply to any agreement between them arising from that introduction. AICapacity is not a party to this agreement and has no rights or obligations under it.

19. 19General

    1. 19.1

       Neither Party is liable for delay or failure caused by events beyond its reasonable control, if it notifies promptly and mitigates; this does not excuse payment. If such an event prevents a Monthly Reservation or Order Form for over [30] consecutive days, either Party may terminate that Order, and Provider shall refund Charges paid for the period after termination.

    2. 19.2

       This agreement, with its Schedules, Annexes and Order Forms, is the entire agreement about its subject matter; purchase order terms do not apply. Except under clause 13.4, a variation must be written and signed by both Parties, and a delay in exercising a right is not a waiver.

    3. 19.3

       Neither Party may assign this agreement without the other’s consent, not to be unreasonably withheld, except to an affiliate or a successor to its relevant business on notice. Provider remains responsible for its subcontractors.

    4. 19.4

       An invalid provision shall be replaced by the closest valid one, and the rest continues. Operational notices may be given in the Console or by email; notices of breach or termination go by email to the addresses below with a courier copy. No third party may enforce this agreement. It may be signed in counterparts and electronically.

20. 20Governing law and disputes

    1. 20.1

       This agreement and any dispute or claim arising out of or in connection with it are governed by the laws of [governing law].

    2. 20.2

       Any dispute arising out of or in connection with this agreement shall be finally resolved by [arbitration under the rules of [arbitral institution], with the seat of arbitration in [city] and the proceedings conducted in English / the courts of [country and city]].