TERMS AND CONDITIONS FOR SUPPLY OF SERVERS AND SERVICES

TERMS AND CONDITIONS

1. Defined terms

1.1 The defined terms in Schedule 1 (Defined Terms) shall be applicable to this Agreement.

1.2 In this Agreement:

1. words denoting persons include bodies corporate and unincorporated associations of persons;
2. any reference to a company includes any company, corporation or other body corporate wherever and however incorporated or established;
3. any reference to a company or firm includes any company or firm in succession to all, or substantially all, of the business of that company or firm;
4. references to an individual or a natural person include that individual’s estate and personal representatives;
5. any reference to a Party to this Agreement includes the successors and assigns (immediate or otherwise) of that Party;
6. the words including and include shall mean including without limitation and include without limitation, respectively;
7. any reference to USD or $ denotes the lawful currency of the United States of America from time to time;
8. any reference to a time of day is to London (United Kingdom) time and where, in this Agreement, a party is obliged to perform an obligation on (but not “as at”) a date that falls on a non-Business Day, such obligations shall be performed on the first (1st) subsequent Business Day;
9. any reference to a document is to that document as amended, varied, supplemented, replaced or novated from time to time otherwise than in breach of this Agreement;
10. unless the contrary intention appears, a reference to a Clause, sub-Clause, paragraph or Schedule is to a Clause, sub-Clause, paragraph or Schedule of or to this Agreement;
11. the Schedules form part of this Agreement; and
12. the headings do not affect the interpretation of this Agreement.

2. General

2.1 This Agreement is made up of these terms and conditions, the Order Form and any other Schedules or addenda that govern the provision of the Servers and the Services by NexGen to the Purchaser.

2.2 The additional terms set out at Schedule 4 (User Terms) shall apply, and be deemed to be incorporated into this Agreement where the Purchaser is an individual contracting as a User.

2.3 The Purchaser acknowledges they have read, understood and accept the risks set out in the associated Risk Disclosure Statement.

2. Supply of servers and services

3.1 NexGen will supply the Servers and provide the Services to the Purchaser in accordance with this Agreement.

3.2  The Purchaser will order the Servers, the Hosting Services and the Infrahub Services by completing an Order Form that, once executed by the Purchaser and NexGen, will be binding on the Purchaser.

3.3  NexGen will provide an Acknowledgement of Order to the Purchaser on receipt of an Order Form from the Purchaser.

3.4  An Order Form will not be valid to the extent it purports to order Servers without also ordering Hosting Services and Infrahub Services in relation to those Servers.

3.5  Each Party shall comply with all Applicable Laws relevant to their obligations under this Agreement.

3.6  The Parties agree that once the Purchaser obtains title to each Server under Clause 5.1, NexGen’s obligations to the Purchaser in respect of such Server shall cease, save for:

a. 3.6.1  certain of NexGen’s obligations with respect to the Servers as set out in Clause 4;

b. 3.6.2  NexGen’s obligations in respect to OEM Warranties as set out at Clause 6;and

c. 3.6.3  the provision to the Purchaser by NexGen of any Services related to that Server.

SUPPLY OF SERVERS

4. Delivery and Location

4.1 NexGen will procure the delivery of each Server to the Datacentre under the terms of NexGen’s agreement with the relevant third-party delivery partner appointed by NexGen in relation to the delivery of that Server (the “Delivery Partner”). NexGen shall have no liability to the Purchaser in respect of the delivery of the Servers, save that NexGen shall pass through any remedy it obtains from the Delivery Partner under NexGen’s agreement with the Delivery Partner.

4.2 NexGen will procure that each Server is submitted to Testing prior to its Installation.

4.3 Where a material defect in any of the Servers is identified during Testing, NexGen will notify the Purchaser and use all reasonable efforts to procure that the defect is remedied to the extent set out in the applicable OEM Warranty for the relevant Server. The Purchaser agrees that where any such material defect is identified, the Delivery Date may be delayed.

4.4 Subject to Clause 4.3, NexGen will use its reasonable endeavours to procure, at its own expense, the delivery and Installation of the Servers at the Datacentre on or prior to the Delivery Date, but any such date is approximate only. Time is not of the essence as to the delivery of the Servers and NexGen will not under any circumstances be liable for any delay in delivery, howsoever caused.

5. Title and risk

5.1 Once NexGen obtains title to each Server under its agreement with the Delivery Partner, the legal and beneficial title and risk in and to that Server will pass to the Purchaser on the date of payment by the Purchaser pursuant to the relevant Order Form (the “Purchase Date”).

5.2 Any loss or damage to the Servers will be the Purchaser’s responsibility from the Purchase Date.

6. Warranties

6.1 In relation to each Server, NexGen warrants that, as of the Deployment Date:

6.1.1 each Server will be free from defects to the extent warranted by the OEM in the OEM Warranty; and

6.1.2 each Server complies with its Specification.

6.2 NexGen will use reasonable endeavours to procure that each Server will comply with its Specification throughout the Warranty Period.

6.3 If NexGen receives written notice from the Purchaser within the Warranty Period of any breach of Clauses 6.1 or

6.2 then NexGen will, within a reasonable time after receiving such notice, repair or at its discretion replace the affected Server or such parts as are defective, or otherwise remedy such defect, in each case to the extent provided for by the OEM under the OEM Warranty.

6.4 For the avoidance of doubt, any Servers repaired or replaced by NexGen under Clause 6.3 shall be under warranty for the unexpired portion of the relevant Warranty Period.

6.5 NexGen will not be liable to the Purchaser for:

6.5.1 any loss of use of a Server arising from a defect in any Server (including, for the avoidance of doubt, as a result of a breach of Clauses 6.1 or 6.2); or

6.5.2 any damage to or defect in the Server caused by the improper use or use outside its normal application by the Purchaser or any third party (including any GPU Users).

SUPPLY OF SERVICES

7. Services

7.1 NexGen will provide and the Purchaser will receive the Services for the Service Term.

7.2 In respect of any Service: (i) provided on NexGen’s behalf to the Purchaser by a Third-Party Supplier; or (ii) the provision of which by NexGen to the Purchaser is dependent on a Third- Party Supplier providing a Service to NexGen, in each case the Service will be provided by NexGen to the Purchaser to an equivalent standard as the standard to which the Third-Party Supplier provides the Service.

7.3 NexGen shall have no liability to the Purchaser in respect of the provision of a Service by any Third-Party Supplier.

7.4 NexGen reserves the right to amend, modify, alter or suspend the Services at any time during the Service Term. The Purchaser may request in writing that NexGen makes changes to the Services during the Service Term, and the Parties shall discuss such request in good faith.

7.5 Notwithstanding Clause 8.1, the Services to be provided by NexGen under this Agreement will not include any services necessary as a direct result of the Purchaser’s or any GPU User’s use or modification of the Servers other than in accordance with NexGen’s written instructions.

8. GPU users

8.1  The Parties agree that:

8.1.1  the Purchaser will not have any rights under this Agreement to use or utilise the Servers in any way, or to install any Content on the Servers;

8.1.2  the Purchaser will not have any access to any GPU User Data;

8.1.3  the Services will not constitute or include a licence of any Content from NexGen to the Purchaser;

8.1.4  NexGen will not be responsible for backing up any data (including GPU User Data) hosted on the Servers; and

8.1.5  NexGen shall not have any liability to the Purchaser for any Content utilised by any GPU Users on the Servers.

8.2  The Purchaser grants NexGen the exclusive right to use and to permit third parties (including Third-Party Suppliers and GPU Users) to use, maintain, repair or otherwise access in any way the Servers (including, in the case of NexGen, unrestricted logical access to the Servers) for the Term, including (but not limited to) rights for NexGen to:

a. 8.2.1  use the Servers to perform the Infrahub Services; and

b. 8.2.2  grant rights to the GPU Users to use the Servers as permitted under their arrangements with NexGen.

9. Purchaser responsibilities

9.1 The Services are provided at the Purchaser’s request and the Purchaser is responsible for ascertaining that the Services are suitable for its own needs.

9.2 The Purchaser will not cause NexGen to breach any Applicable Laws through the Purchaser’s ownership of the Servers or receipt or use of the Services.

10. Support services

10.1 The Purchaser may request specific Support Services during the Service Term from NexGen by emailing [email protected] (or such other email address as notified by NexGen from time to time). NexGen shall use reasonable endeavours to respond to any such requests for specific Support Services within 24 hours of receipt of such request.

10.2 NexGen shall not be under any obligation to provide, or procure the provision of, any requested Support Services. Where NexGen provides, or procures the provision of, any Support Services, NexGen reserves the right to require the Purchaser to pay Support Services Charges pursuant to Clause 11.6.

10.3 For the avoidance of doubt, any services undertaken by NexGen under Clause 6 relate only to the OEM Warranty as it relates to the Servers, and will not constitute Support Services under this Agreement.

GENERAL TERMS

11. Charges and payment

11.1 The Purchaser shall pay all Charges to NexGen as set in Clause 11 as consideration for the Services provided by NexGen under this Agreement.

11.2 The Server Leasing Revenue payable in respect of the Infrahub Services will be paid by NexGen to the Purchaser in accordance with the terms of Schedule 3 (Infrahub Services) and does not form part of the Charges.

11.3 The Server Charges will be invoiced in advance of the Deployment Date.

11.4 The Hosting Charges will comprise:

11.4.1 an annual fixed amount (the “Fixed Charge”), representing the reasonable pre- estimate of the Datacentre operator’s charges to NexGen in respect of hosting the Servers as detailed in the Order Form or as updated in accordance with Clause 11.5, invoiced in advance of the Deployment Date and thereafter invoiced in advance of each anniversary of the Deployment Date; and

11.4.2 an adjustment charge (which may be positive or negative) to be calculated and invoiced (or credited) in advance of the end of each twelve (12) month period commencing on the anniversary of the Deployment Date during the Service Term, to the extent there is a shortfall (or excess) between the Fixed Charge and the actual Datacentre Charges in that preceding twelve (12) month period (“Adjusted Hosting Charges”).

11.5 Notwithstanding Clause 11.3, the Fixed Charges detailed in the Order Form represent a reasonable pre-estimate of the Datacentre operator’s charges to NexGen in respect of hosting the Servers, and NexGen will have the right to increase the Fixed Charge at any time provided that the increase in Charges shall be no greater than the increase in charges payable by NexGen to the relevant third-party operator of the Datacentre for the hosting of the Servers (the “Datacentre Charges”).

11.6 The Support Services Charges will be invoiced by NexGen to the Purchaser at the end of the month in which any Support Services were provided, and will comprise: (i) the pass-through of the charges incurred by NexGen in relation to its appointment of a Third-Party Supplier to undertake the Support Services; and (ii) NexGen’s own charges incurred on a time and materials basis, in each case at the rates set out in the applicable Order Form, if applicable, (or such rates as are current at the time of the service request, as notified to the Purchaser from time to time) and NexGen will be entitled to set off any such Support Services Charges against any Server Leasing Revenue payable by NexGen to the Purchaser under Clause 11.2.

11.7 Notwithstanding Clause 11.5, NexGen may increase the Support Services Charges: (i) on each anniversary of the Deployment Date, in line with the percentage increase in the UK Retail Prices Index (all items excluding mortgages) (as published by the Office for National Statistics from time to time) in the preceding twelve (12) month period; and (ii) at any time, to reflect any increases to the charges payable by NexGen in respect of the relevant Support Service.

11.8 The Purchaser will pay each invoice in USD within thirty (30) days of the date of receipt of each invoice.

11.9 All costs payable under this Agreement are exclusive of value added tax (if any) or any other locally applicable equivalent sales taxes (“VAT”), which, where applicable, is payable by the Purchaser at the rate and in the manner from time to time prescribed by law.

11.10 The Purchaser must notify NexGen in writing if it is or during the Term becomes a VAT registered person or entity or otherwise liable to pay VAT.

11.11 Amounts payable to NexGen under this Agreement will be paid into the following bank account by electronic funds transfer unless otherwise notified by NexGen to the Purchaser in writing in accordance with this Agreement:
Account name: Bank:
IBAN: SWIFT/BIC: Address:
NEXGEN CLOUD LIMITED NatWest USD GB19NWBK60730140586502 NWBKGB2LXXX
Premier Place Devonshire Square, London, EC2M 4XB

11.12 If the Purchaser fails to make payment (including of any Charges) in accordance with this Agreement:

11.12.1 NexGen will be entitled, in addition to any unpaid amount that should properly have been paid, to receive simple interest on that amount from the final date for payment until the date of actual payment, such interest to be calculated at a rate of four per-cent (4%) per year above the Bank of England base rate from time to time. It is agreed that the provisions of this Clause 11.12.1 constitute a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998;

11.12.2 NexGen may, having served three (3) Business Days’ written notice of non-payment, suspend all affected Services until full payment has been made by the Purchaser; and

11.12.3 NexGen may terminate this Agreement in accordance with Clause 12.2.1.

11.13 NexGen shall pay Server Leasing Revenue net of any applicable bank charges and fees.

12. Term and termination

12.1 This Agreement shall commence on the Effective Date and continue in force until the earlier of: (i) the expiry of the Term; or (ii) any termination of this Agreement pursuant to this Clause 12.

12.2 Without prejudice to any other right or remedy available to NexGen, NexGen may immediately terminate this Agreement or suspend the Services without liability to the Purchaser by giving written notice if:

12.2.1 the Purchaser fails to pay any amount due under this Agreement by the due date for payment;

12.2.2 the Purchaser’s financial position deteriorates to such an extent that in NexGen’s opinion its capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy; or

12.2.3 an Insolvency Event occurs in relation to the Purchaser.

12.3 Without prejudice to any other right or remedy available to it, a Party may immediately terminate this Agreement without liability to the other Party by giving written notice to the other Party if:

12.3.1 the other Party commits a material breach of any term of this Agreement which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or

12.3.2 an Insolvency Event occurs in relation to the other Party.

12.4 Without prejudice to any other right or remedy available to either Party, either Party may terminate the entire Agreement at the end of the Initial Term or any Renewal Term by giving the other Party not less than ninety (90) days’ prior written notice to terminate this Agreement.

12.5 On termination of this Agreement for whatever reason:

12.5.1 the Purchaser will immediately pay to NexGen all outstanding unpaid invoices and interest (including for any Charges) and, in respect of Services supplied but for which no invoice has been submitted, NexGen may submit an invoice, which will be payable immediately on receipt;

12.5.2 NexGen will have the exclusive right to purchase, or procure the purchase by a third party of, all or some of the Servers at fair market value for a period of twenty (20) Business Days after termination;

12.5.3 unless otherwise agreed between the Parties and following NexGen’s written notification to the Purchaser of its intention not to exercise its rights under Clause 12.5.2: (a) the Purchaser: (i) will, through the appointment of a third-party; or (ii) may elect that NexGen will (including through the appointment of a third-party) at the Purchaser’s expense, in each case arrange for the removal of the Servers from the Datacentre and for the shipment (in compliance with Applicable Law) of the Servers to the Purchaser or a nominee of the Purchaser as soon as reasonably practicable after termination, and the Purchaser will promptly notify NexGen of the relevant arrangements; (b) upon receiving notice from the Purchaser under Clause 12.5.2, NexGen will provide reasonable assistance to the Purchaser or any third-parties appointed by the Purchaser in respect of the removal of the Servers from the Datacentre; and (c) if the Servers have not been removed from the Datacentre within twenty (20) Business Days after the date on which NexGen provides notice of its intention not to exercise its rights under Clause 12.5.2 for any reason, including without limitation, the Purchaser’s failure to engage in discussions with NexGen, NexGen may, provided the delay in removing the Servers is not the direct result of any act or omission of NexGen and on prior written notice to the Purchaser of no less than twenty (20) Business Days, at its election and at the Purchaser’s expense either arrange to send such Servers to a storage warehouse, or if not possible and as a last resort, securely destroy the Servers (including any data contained on them);

12.5.4 NexGen will refund to the Purchaser within thirty (30) days any Charges paid in respect of periods after the date of termination calculated on a pro rata basis net of any monies due from the Purchaser to NexGen;

12.5.5 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement will remain in full force and effect and, for the avoidance of doubt, the terms of Clauses 11 (Charges and Payment), 12 (Term and Termination), 13 (Liability), and 13.6 (Confidentiality) and Schedule 1 (Defined Terms) shall continue in full force and effect notwithstanding termination or expiry of this Agreement; and

12.5.6 termination of this Agreement will not affect any of the 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 of this Agreement that existed at or before the date of termination.

13. Liability

13.1Except as expressly stated in this Agreement, NexGen makes no representations or warranties and, to the fullest extent permitted by Applicable Law and subject to Schedule 4 (User Terms), explicitly disclaims all other representations and warranties, whether express, implied, written, oral or statutory, including the implied warranties of merchantability and fitness for a particular purpose, and warranties otherwise arising from a course of dealing, course of performance or usage of trade.

13.2 The following restrictions on liability apply to every liability arising under or in connection with this Agreement including liability for breach of contract, tort (including negligence), misrepresentation or otherwise.

13.3 Nothing in this Agreement excludes or limits either Party’s liability for:

13.3.1 death or personal injury caused by its negligence;
13.3.2 fraud or fraudulent misrepresentation; or
13.3.3 any other liability to the extent the same cannot be excluded or limited by law.

13.4 Subject to Clauses 13.2 and 13.3, NexGen’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, will not exceed the total amount of the Charges paid under this Agreement during the twelve (12) months preceding the date on which the claim arose.

13.5 Subject to Clauses 13.2 and 13.3, and paragraph 2 of Schedule 4 (User Terms), NexGen’s liability for the following types of loss are wholly excluded:

13.5.1 loss of profit;
13.5.2 loss of sales or business;
13.5.3 loss of agreements or contracts;
13.5.4 loss of anticipated savings;
13.5.5 loss of use or corruption of software, data or information;
13.5.6 loss of or damage to goodwill;
13.5.7 administrative fines or penalties; and
13.5.8 indirect or consequential loss.

13.6 NexGen will not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (other than for the payment of amounts due hereunder) if such delay or failure results from events, circumstances or causes beyond its reasonable control.

14. Confidentiality

14.1Each Party undertakes that it will not at any time during this Agreement term, and for a period of five (5) years after termination of it, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group to which the other Party belongs, except as permitted by Clause 14.2.

14.2 Each Party may disclose the other Party’s confidential information:

14.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement; or

14.2.2 as may be required by law, a court of competent jurisdiction or any relevant governmental or regulatory authority, provided in each case that, to the extent permitted by Applicable Law, each Party will ensure that the Party to whom it discloses the other Party’s confidential information is under confidentiality obligations materially similar to those set out in this Clause 13.6.

14.3 Neither Party will use the other Party’s confidential information for any purpose other than to perform its obligations under this Agreement.

15. Waiver

No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

16. Severance

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision will be deemed deleted. Any modification to or deletion of a provision or part- provision under this Clause 16 will not affect the validity and enforceability of the rest of this Agreement.

17. Assignment and subcontractors

17.1 The Purchaser may assign or otherwise transfer its title in and to the Servers to a third Party at any time after NexGen has received payment in full for them, provided such assignment or transfer complies with Applicable Law.

17.2 Subject to Clause 17.1 the Purchaser will not, without NexGen’s prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement including any order for Services.

17.3 NexGen may at any time assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement.

17.4 NexGen may subcontract all or part of the Services but, save as expressly set out under this Agreement, will remain responsible under this Agreement for the performance of any such subcontractors to the same extent as though NexGen had performed those Services itself.

18. Entire agreement and amendment

18.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings, and agreements between them relating to its subject matter.

18.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.

18.3 Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of this Agreement.

18.4 Subject to Clause 18.5, no alteration to or variation of this Agreement shall take effect unless and until a written variation agreement is executed by the parties.

18.5 NexGen reserves the right to make any amendments to this Agreement from time to time by written notice on the Purchaser, including where required to comply with any upcoming changes in Applicable Law relevant to its provision of the Services and Servers under this Agreement.

18.6 This Agreement may be executed in any number of counterparts, each of which is deemed an original, but all of which taken together constitute one single agreement between the Parties.

19. Third-party rights

No one other than a Party to this Agreement will have any right to enforce any of its terms. For the avoidance of doubt, GPU Users shall not have any rights under this Agreement.

20. Notices

20.1 Any notice given to a Party under or in connection with this Agreement will be in writing and will be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service; or (ii) sent by email (save that no notice under Clause 12 may be given by email), in each case to the address specified for the Party in the Order Form or such other address as the Party specifies in accordance with this Clause 20.

20.2 Any notice will be deemed to have been received:

20.2.1 if delivered by hand, on signature of a delivery receipt; and

20.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9 a.m. on the second (2nd) Business Day after posting or at the time recorded by the delivery service; and

20.2.3 if sent by email, at the time of transmission, or, if this time falls outside of 9 a.m. to 5 p.m. on a Business Day, at 9 a.m. on the next Business Day, provided that the Party sending the email also sends a paper copy of the notice on the same date by one of the other methods referred to in this Clause 20.

21. Governing law and jurisdiction

21.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales.

21.2 Subject to Clause 2.2 of Schedule 4 (User Terms), each Party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).

Schedule 1 - Defined Terms

Acknowledgement of Order means the acknowledgement by NexGen of any Order Form, in such form as prescribed by NexGen, but including: (i) a confirmation of the Servers, Hosting Services and Infrahub Services ordered by the Purchaser; and (ii) a Delivery Date for the Servers;

Adjusted Hosting Charges means the Hosting Charges as amended pursuant to Clause 11.4.2;

Agreement means collectively these terms and conditions, the Order Form, and any other Schedules or addenda that govern the provision of the Servers or the Services;

Applicable Law means any applicable laws, regulations, decisions, regulatory constraints, obligations or rules (including codes of conduct and statements of principle incorporated and contained in such rules) from time to time and in each case as relevant to each Party’s obligations under this Agreement, the Servers or the provision or receipt of the Services;

Business Day means a day other than a Saturday, Sunday or public holiday in England;

Charges means all amounts payable to NexGen by the Purchaser under this Agreement and any Order Forms, including any Server Charges, Hosting Charges, Adjusted Hosting Charges and the Support Services Charges (if any);

Content means each of NexGen Content or Third-Party Content;

Datacentre means the datacentre specified in the Order Form where the Server will be collocated;

Data Protection Legislation means the following legislation to the extent applicable from time to time: (a) national laws implementing the Directive on Privacy and Electronic Communications (2002/58/EC); (b) the General Data Protection Regulation (2016/679) (“GDPR”); (c) the GDPR transposed into the national laws of the United Kingdom (“UK GDPR”); (d) any national law made pursuant to the GDPR or UK GDPR; and (e) any other similar national privacy law;

Delivery Date means the estimated date for delivery of the Servers specified in NexGen’s Acknowledgement of Order;

Deployment Date means the date following Testing and Installation on which the deployment of the Servers in the Datacentre takes place as notified in writing by NexGen to the Purchaser; Effective Date means the date on which the Order Form (incorporating these terms and conditions) is executed;

GPU Users means each third-party who, under separate arrangements with NexGen, consumes capacity on the Servers in relation to the Infrahub and/or the Hyperstack Service;

GPU User Data means any data which a GPU User stores or otherwise processes (as such term is defined in Data Protection Legislation) on the Servers;

Hosting Charges means the charges for the Hosting Services as detailed at Clause 11.4; Hosting Services means the hosting services described in Schedule 2 (Services);
Hyperstack Service means the Hyperstack services in Schedule 3A (Hyperstack Services); Infrahub Services means the Infrahub services described in Schedule 3 (Infrahub Services); Initial Term means the period of thirty-six (36) months commencing on the Deployment Date;

Insolvency Event means, in relation to the Party, (a) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (“IA 1986”) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed unable to pay its debts or as having no reasonable prospect of so doing in either case within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom of the foregoing apply; (b) it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors; (c) it applies to court for, or obtains, a moratorium under part A1 of the IA 1986; (d) a petition is filed, a notice given, a resolution passed, or an order made, for or in connection with its winding up; (e) an application is made to court, or an order made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator appointed, over it; (f) the holder of a qualifying floating charge over its assets becomes entitled to appoint or has appointed an administrative receiver; (g) it has a receiver appointed over its assets; (h) the other Party is the subject of a bankruptcy petition, application or order; (i) a creditor or encumbrancer of it attaches or takes possession of, or a distress execution, sequestration or other such process is levied or enforced on or sued against the whole or part of its assets and such attachment or process is not discharged within fourteen (14) days; or (j) any event occurs, or proceeding is taken, with respect to the Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (h) (inclusive); Installation means the connection of the Servers to NexGen’s wider hosting infrastructure within the Datacentre;

Investor Portal means the platform hosted by NexGen and made available to the Purchaser in respect of the Infrahub Services;

Monthly Reports means the reports prepared by NexGen and initially provided by email by NexGen to the Purchaser and thereafter accessible by the Purchaser on the Investor Portal, in each case on or about the fifteenth (15th) day of each month and providing an account summary of any: (i) GPU User usage data as provided by NexGen in respect of each Server relevant for the Infrahub Services; (ii) Support Services Charges; and (iii) amounts incurred by NexGen in respect of any Support Services;

NexGen Content means software or data made available to the GPU Users by NexGen in relation to the GPU Users use of the Servers under a separate licence agreement from NexGen to the GPU Users;

OEM means, as relevant to each Server: (i) where NexGen procures a Server directly from the original equipment manufacturer of the relevant Server, such original equipment manufacturer;

or (ii) where NexGen procures a Server from a third-party reseller of the relevant Server and such reseller provides its own warranty for the Server, such third-party reseller;

OEM Warranty means the warranty provided by the relevant OEM in respect of each Server;
Order Form means the document describing the Servers, the Hosting Services and the Infrahub Services the Purchaser will purchase in the form prescribed by NexGen and provided to the Purchaser;

Renewal Term means additional consecutive periods of twelve (12) months commencing on the third (3rd) anniversary of the Deployment Date, unless either Party gives the other written notice of termination in accordance with Clause 12.4;

Server Charge means the charge detailed in the Order Form to be paid by the Purchaser to NexGen in consideration for the purchase, delivery and Installation of the Servers by NexGen;

Server Leasing Revenue means, with respect to, any revenue earnt via:
(a Infrahub Services, ninety (90)% of the net revenue earned by NexGen from the hire of the Servers’ compute capacity to GPU Users as set out at Schedule 3 (Infrahub Services); and

(b) Hyperstack Services via Infrahub, eighty (80)% of the net revenue earned by NexGen from the hire of the Servers’ compute capacity to GPU Users as set out at Schedule 3A (Hyperstack Services);

Servers means each Server detailed in the Order Form;
Services means the Hosting Services, the Infrahub Services and the Support Services; Service Term means, unless terminated earlier in accordance with Clause 12, the Initial Term and any Renewal Terms;

Specification means the specification of the Servers set out in the Order Form;

Support Services means the support services described in Schedule 2 (Services), as agreed between the Parties in accordance with Clause 10.2 from time to time;

Support Services Charges means any costs incurred by NexGen in providing the Support Services to the Purchaser;

Term means the period commencing on the Effective Date and expiring on the earlier of: (i) the expiry of the Service Term; or (ii) any termination of this Agreement pursuant to Clause 12;

Testing means: (i) any standard testing undertaken by the OEMs in respect of the Servers; (ii) the ‘Dead on Arrival’ testing undertaken by NexGen upon receiving delivery of the Servers; and (iii) the connectivity testing undertaken by NexGen as part of Installation;

Third-Party Content means software or data made available to the GPU Users by any third party in relation to the Servers under a separate licence agreement;

Third-Party Supplier means any: (i) OEM; (ii) Delivery Partner; or (iii) third party engaged by NexGen in relation to the provision by NexGen of any Services to the Purchaser; and

Warranty Period means: (i) a period of thirty-six (36) months from the Deployment Date or, if shorter for certain Servers, the period offered under the relevant OEM Warranty; or (ii) otherwise as commercially agreed between the Parties (provided the Purchaser has paid to NexGen any relevant Charges in respect of the extended warranty period).

Schedule 2 - Services

HOSTING SERVICES
NexGen will host the Servers at one of its contracted Datacentres for the Service Term. The Hosting Services shall include NexGen procuring: (i) the operation of the Datacentre as necessary for the Servers; (ii) the capacity to be reserved for the Servers as detailed in the Order Form; and (iii) the maintenance of the Datacentre as required for the Servers.

SUPPORT SERVICES
The Support Services may be requested by the Purchaser during the Service Term, and will comprise the following activities that, subject to Clause 10.2, NexGen will procure are undertaken in relation to the Servers:

1. Pushing a button;
2. Switching a toggle;
3. Power cycling (turning on/off) of the Servers;
4. Re-setting and/or rebooting of the Servers;
5. Securing cabling to connections;
6. Observing, describing and/or reporting of indicator lights or display information on machines or consoles;
7. Cable organisation;
8. Modifying basic cable layout, labelling and/or re-labelling of the Servers;
9. Cable patching;
10. Checking alarms for faults;
11. Insertion/removal of discs or equivalent storage devices into the Servers; and/or
12. Remote hands support as necessary to rectify any defects in the material or workmanship of the Servers not covered by Clause 6, including repairing and replacing parts of the Servers.

Schedule 3 - Infrahub Services

In consideration of the Purchaser granting NexGen the rights to use its Servers, NexGen will during the Service Term:

− link each Server to its Infrahub platform to enable NexGen to make the compute capacity available for hire to GPU Users via marketplaces for cloud-based GPU and other compute services;

− pay the Purchaser the Server Leasing Revenue;

− send the Purchaser by email, or otherwise make available on the Investor Portal, the Monthly Reports; and

− within five (5) Business Days of sending or making available each Monthly Report, pay the Purchaser the Server Leasing Revenue (less any Support Services Charges) by electronic transfer to such bank account as the Purchaser may designate in writing from time to time. Where the amount due to the Purchaser in any month is less than USD ($) 50, the payment may be made in the next month in which the amount due is greater than USD ($) 50.

NexGen will use reasonable endeavours to randomise the distribution of utilised compute resource across all servers on the Infrahub platform but cannot provide any guarantee or commitment as to the level of utilisation that the Servers will achieve during the Service Term.

Schedule 3A - Hyperstack Services

Similar to Schedule 3, however, in this instance, NexGen will link each relevant Server to its Hyperstack platform, via the Infrahub platform. Please refer to https://www.hyperstack.cloud.

Schedule 4 - User Terms

1. APPLICABILITY
1.1 This Schedule 4 (User Terms) will apply where the Purchaser is an individual contracting as a User (“User Purchaser”). In respect of User Purchasers, in the event of a conflict between the terms of this Schedule 4 (User Terms) and the terms of this Agreement, this Schedule 4 (User Terms) shall take precedence.
1.2 In respect of User Purchasers, the Parties agree that any term of this Agreement not compatible with any Applicable Law relating to User Purchasers shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted subject to the provisions of Clause 16.

2. LIABILITY AND CLAIMS
2.1 Clauses 13.5.4, 13.5.7 and 13.5.8 will not apply to User Purchasers.
2.2 If a User Purchaser lives in Scotland, they shall be entitled to bring such legal proceedings in either the Scottish or the English courts and if they live in Northern Ireland they shall be entitled to bring legal proceedings in respect of the products in either the Northern Irish or the English courts.

3. COMPLAINTS
3.1 Each User Purchaser has a statutory right of cancellation pursuant to the User Contracts Regulations 2013. The User Purchaser may cancel this Agreement within a period of fourteen (14) days from the day after submitting its Order Form by notifying NexGen in writing at [email protected] or Salisbury House, London Wall, London, United Kingdom, EC2M 5PS and providing as a minimum the following information:

3.1.1 the Servers and Services the User Purchaser wishes to cancel, including date of submission of Order Form; and

3.1.2 the User Purchaser’s name and address and/or email address and/or contact telephone number.

3.2 Following cancellation, the User Purchaser will be reimbursed for the relevant Servers and Services. The User Purchaser cannot exercise its right of cancellation for Services that have been fully performed before the end of the cancellation period or for the Hosting Services once they have commenced.

3.3 All complaints should be addressed to [email protected]. For more information about Users’ legal rights, the User Purchaser is referred to the Citizens’ Advice website at https://www.citizensadvice.org.uk/User/. These terms and conditions do not affect the User Purchaser’s legal rights as a User.