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SERVICES AGREEMENT

Unless otherwise stated, capitalised terms used in this Agreement have the meanings given to them in Annex A and the rules of interpretation set out in Annex A shall apply.

PLEASE READ CAREFULLY BEFORE PURCHASING ANY SERVICES AVAILABLE ON THIS WEBSITE.

This Agreement is a legal agreement between Core42 and the Customer which shall commence on the Effective Date.

By clicking to accept these terms, the Customer represents and warrants that it has the authority to accept this Agreement and agrees to be bound by its terms. This Agreement applies to all Service Orders entered into under this Agreement.
If the Customer does not agree to the terms of this Agreement, then it may not access or use the Services.

1. SERVICE ORDERS

1.1 From time to time the parties may agree Service Orders under which Core42 shall supply the applicable Services and resell any applicable Third Party Products.

1.2 Once a Service Order has been Accepted, it shall be deemed to form part of this Agreement and shall not form a separate contract to it.

2. SERVICES

2.1 Platform Services

  1. Core42 will provide the Platform Services in accordance with this Agreement (including any applicable Service Levels), in all material respects.
  2. The Customer may access and use the Platform Services in accordance with this Agreement, including each applicable Service Order.
  3. To access the Platform Services:
    1. the Customer must have an Account associated with a valid email address and a form of payment (which Core42 recognise as being valid); and
    2. Core42 must be satisfied that the Customer is eligible to have an Account.

2.2 Professional Services

  1. Core42 will supply the Professional Services in accordance with this Agreement in all material respects.
  2. Core42 will use reasonable skill and care in supplying the Professional Services under each Service Order.
  3. In respect of the Professional Services, Core42 will use reasonable endeavours to meet any performance dates specified in a Service Order, but any such dates shall be estimates only and time for performance by us shall not be of the essence of this Agreement.

2.3 Third Party Products

Core42 will resell (or otherwise arrange for the Customer to be supplied with) any Third Party Products specified in a Service Order.

3. CUSTOMER RESPONSIBILITIES

3.1 The Customer will:

  1. co-operate with Core42 in all matters relating to the Services;
  2. appoint a manager in respect of the Services to be performed under each Service Order, such person as identified in the Service Order. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Services;
  3. provide Core42 Personnel, in a timely manner and at no charge, access to the Customer's premises, office accommodation, Customer Data and other facilities as required by Core42 (including any such access as is specified in a Service Order);
  4. ensure all Dependencies are met in accordance with the relevant Service Order;
  5. provide Core42 in a timely manner with all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under a Service Order or otherwise reasonably required by Core42 in connection with the Services and ensure that they are accurate and complete;
  6. inform Core42 of all health and safety and security requirements that apply at any of the Customer's premises;
  7. ensure that any of the Customer's equipment required by Core42 to supply the Services is in good working order and suitable for the purposes for which it is used;
  8. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Core42 to provide the Services, in all cases before the date on which the Services are to start;
  9. comply with Annex B (Compliance); and
  10. comply with Applicable Laws in performing the Customer's obligations under this Agreement.

3.2 If Core42's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer or any of the Customer Personnel (including any failure to meet a Dependency) then, without prejudice to any other right or remedy Core42 may have, Core42 shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer and the Customer will be liable to pay Core42 any amounts which would have been payable to Core42 but for such delay.

3.3 Except to the extent caused by Core42's breach of this Agreement, the Customer is responsible for all activities that occur under its Account, regardless of whether the activities are authorised or undertaken by the Customer, an End User or other third party.

3.4 The Customer is also responsible for all End Users’ use of the Customer Data and the Services and for ensuring that all End Users comply with the Customer's obligations under this Agreement. If the Customer becomes aware of any End User causing the Customer to breach the Customer's obligations under this Agreement, or the Customer reasonably suspects such a breach has occurred or may occur, the Customer will immediately suspend such End User’s access to the Customer Data and to the Services.

3.5 The Customer is responsible for:

  1. obtaining and maintaining any licences, consents and notices required to permit the Customer's use and receipt of the Services;
  2. the security and confidentiality of all authentication credentials associated with the Customer's use of the Services, whether provided by Core42 or created by the Customer (“Authentication Credentials”), and for ensuring such credentials are only for the Customer's and the Customer's End Users’ internal use; and
  3. creating log-in details for End User accounts and setting up their user profile securely using the functionality provided by Core42.

3.6 The Customer will not (and will procure that the End Users do not) share, disclose, provide access to, sell, transfer or sub-licence the Authentication Credentials to any other entity or person. If the Customer becomes aware of or reasonably suspects any accidental or unlawful access to the Customer's Authentication Credentials, or that a loss or disclosure of the Customer's Authentication Credentials has occurred or may occur, the Customer will immediately reset the Customer's Authentication Credentials and contact Core42.

3.7 The Customer will not use or access the Services (and the Customer will not allow third parties to use the Services):

  1. to violate, or encourage the violation of, the legal rights (including any Intellectual Property Rights) of others;
  2. for any unlawful, offensive, invasive, infringing, defamatory, fraudulent, obscene or abusive purpose, including related to pornography, bestiality and other types of sexual content;
  3. to intentionally transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programmes or similar computer code designed to adversely affect the operation of any computer software or hardware;
  4. to interfere with the use of any Core42 Platform, or the equipment used to provide any Core42 Platform, by Core42's other customers or other authorised third parties; or
  5. to disable, interfere with or circumvent any aspect of the Services (including any Core42 Platform) or any Third Party Product.

3.8 The Customer will not (and the Customer will not permit any End User to):

  1. modify, distribute, alter, tamper with, repair, or otherwise create derivative works of the Services;
  2. reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services (except to the extent Applicable Law doesn't allow this restriction);
  3. attempt automated means to scrape content from any Core42 Platform;
  4. send Core42 any personal information of children below the applicable age of digital consent or allow minors to use the Services without consent from their parent or guardian; or
  5. access or use the Services in a way intended to avoid incurring Fees or exceeding usage limits or quotas as agreed in a Service Order.

3.9 Unless otherwise agreed in the relevant Service Order:

  1. if Core42 resells any Third Party Products under this Agreement, such products are supplied under the terms of the relevant Third Party Agreement, copies of which shall be provided to the Customer; and
  2. the Customer agrees to be bound by such licence terms to the relevant third party (which may include the Customer paying separate fees).

4. CUSTOMER DATA

4.1 The Customer is responsible for:

  1. obtaining and maintaining any licences, consents and notices required for Core42 to access, store, and process the Customer Data in accordance with this Agreement;
  2. the security of the Customer Data, including the implementation and maintenance of any technical and security measures with respect to the Customer Data;
  3. backing up the Customer Data (as the Customer considers appropriate);
  4. taking all appropriate action and deploying and implementing all necessary controls and measures to secure and protect the Customer Data, including encrypting the Customer Data and using suitable anti-malware protection; and
  5. controlling access to, and all activities carried out in respect of the Customer Data by the Customer, any End User or other third party, irrespective of whether the Customer's Authentication Credentials have been subject to any accidental or unlawful loss, access or disclosure.

4.2 If the Customer Data contains Personal Data, the Customer shall:

  1. provide legally adequate privacy notices and obtain necessary consents for the processing of Personal Data by the Services; and
  2. process such Personal Data in accordance with Applicable Law.

4.3 The Customer will ensure that the Customer Data and the use of the Customer Data (by the Customer, an End User or other third party), will not:

  1. violate the terms of this Agreement or Applicable Law; or
  2. infringe or misappropriate any Intellectual Property Rights.

4.4 The Customer acknowledges and agrees that Core42 does not manage or control the Customer Data that the Customer or an End User may upload, store, share or access through the Services. Core42 accepts no responsibility or liability for the Customer Data, including loss of the Customer Data.

5. SECURITY

5.1 Without limiting any other provisions or obligations in this Agreement, Core42 will implement reasonable and appropriate technical and organisational measures in respect of the Core42 Platform(s) in order to help the Customer secure the Customer Data against accidental or unlawful loss, access or disclosure.

5.2 Core42 will not access or use the Customer Data except as necessary to:

  1. supply the Services;
  2. calculate the Fees (if Core42 supplies the Services on a usage basis); and
  3. comply with the law or a binding order of a Governmental Authority.

Accordingly, the Customer consents to Core42 collecting, retaining, accessing and using the Customer Data for such purposes.

6. FEES AND PAYMENT

6.1 The Customer is responsible for all Fees arising under or in connection with this Agreement and each Services Order.

6.2 Unless otherwise agreed in the relevant Service Order, Core42 will calculate and send the Customer invoices for the Fees which the Customer will pay in accordance with this Clause 6 and each Service Order.

6.3 Core42 will issue invoices in accordance with the relevant Service Order and the Customer will pay such invoices within thirty (30) days of the date of the invoice.

6.4 All sums payable to Core42 under this Agreement:

  1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of an invoice; and
  2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any deduction or withholding is required by law, the Customer shall pay to Core42 such amount as will, after the deduction or withholding has been made, leave Core42 with the same amount as it would have been entitled to receive in the absence of a requirement to make a deduction or withholding.

6.5 In respect of any Third Party Product provided under this Agreement, Core42 will issue its invoices in accordance with and at the times required under the terms of the relevant Third Party Agreement (unless otherwise agreed in the relevant Service Order).

6.6 Core42 may charge a fee at the rate of 1.5% per month (or the highest rate permitted by law, if less) on late payments, from the payment due date until Core42 receive payment in full.

6.7 If the Customer orders any Services from a Reseller, the Customer may pay the Fees to such Reseller. If the Reseller fails to pay an invoice relating to any Fees as a result of the Customer failing to pay the Reseller, Core42 may treat such failure as a breach by the Customer of this Agreement and reserves the right to suspend or terminate the Customer’s right to access or use all or any portion of the Services.

7. TEMPORARY SUSPENSION

7.1 Core42 may suspend the Customer's right to access or use all or any portion of the Services immediately upon notice to the Customer:

  1. if Core42 determines that the Customer's, or an End User's, use of the Services:
    1. poses a security risk to the Services, to any Third Party Product, to Core42 or Core42's Affiliates, other customers or to any other third party;
    2. could adversely impact Core42’s or any of its Affiliates’ systems, the Services, any Third Party Product or the systems or data of any other customer;
    3. could subject Core42, its Affiliates, or any third party to liability; or
    4. could be fraudulent;
  2. if Core42 determines that the Customer is in breach of this Agreement, including the Customer's payment obligations under Clause 6 of this Agreement; or
  3. in the event of Insolvency Proceedings.

7.2 If Core42 suspends the supply of the Services or the Customer's right to access or use all or any portion of the Services:

  1. the Customer shall remain responsible for all Fees that the Customer may incur during the period of suspension;
  2. the Customer will not be entitled to any service credits under any applicable service level arrangement for any period of suspension; and
  3. Core42 will endeavour to provide the Customer with reasonable timelines in order for the Customer to remediate the cause of the suspension.

8. TERMINATION

8.1 This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with this Clause 8.

8.2 Either party may terminate this Agreement in whole or in part (including any Service Order):

  1. for convenience by providing the other party with at least ninety (90) days advance written notice, provided that any such termination notice shall not take effect before the expiry of the then current Committed Service Period or Renewal Period (as applicable); or
  2. for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of thirty (30) days from receipt of notice from the non-breaching party.

8.3 Core42 may also terminate this Agreement in whole or in part (including any Service Order) immediately upon notice to the Customer:

  1. if Core42 has the right to suspend under Clause 7 of this Agreement;
  2. if any software or other technology provided by a third party which relates to the Services is amended or no longer available;
  3. in order to comply with the law or any request of a Governmental Authority or Third Party Product provider; or
  4. if the Customer uses any element of the Services for a purpose other than as has been agreed by Core42.

8.4 The Customer acknowledges and agrees that, if Core42 supplies any Service under a Service Order which is dependent on the Customer's ongoing use of a Third Party Product (each, a “Dependent Service”), then Core42's supply of such Dependent Service will cease automatically to the extent that the Customer's use of the relevant Third Party Product ceases.

9. EFFECT OF TERMINATION

9.1 Upon the effective date of termination of this Agreement:

  1. except as provided in Clause 9.2, all of the Customer's rights under this Agreement shall immediately terminate;
  2. the Customer shall remain responsible for all Fees that it has incurred until the date of termination and the Customer is responsible for any and all Fees that it incurs during the Termination Period (as defined below);
  3. except as provided in Clause 9.2, each party shall return and make no further use of any data, documentation, software, equipment, property or other items (and all copies of them) belonging to the other party;
  4. each party’s further rights and obligations under this Agreement (or the relevant part of this Agreement, as applicable) will cease immediately on expiry or termination, provided that termination will not affect the accrued rights and obligations of the parties as at the date of termination; and
  5. Clauses 3, 6, 9.1, 10, 11, 12, 14, 15, 16 and 17 and Annex A of this Agreement will continue to apply in accordance with their terms.

9.2 Unless Core42 terminates the Customer's use of the Services under Clause 8.2(b) or Clause 8.3 of this Agreement, during the period of thirty (30) days following the date of termination (the “Termination Period”):

  1. Core42 will not take action to remove from any Core42 Platform, or any other Core42 system, any of the Customer Data; and
  2. provided that the Customer has paid all amounts due under this Agreement, Core42 will allow the Customer to retrieve the Customer Data from the Services.

For any use of the Services during the Termination Period, the provisions of this Agreement will apply and the Customer will pay the applicable Fees in accordance with Clause 6 of this Agreement and any further instructions that Core42 may provide to the Customer.

10. INDEMNIFICATION

10.1 The Customer will defend, indemnify, and hold harmless Core42, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to:

  1. the Customer's or any End User's use of the Services or Third Party Product;
  2. any breach of Clause 3.8 of this Agreement or any violation of Applicable Law by the Customer, any End User or other third party; and
  3. any third party claim alleging that the Customer Data, or the Customer’s use of the Core42 Platform and/or Services and/or a Third Party Product violates the rights of a third party or any Applicable Law.

10.2 Subject to the Customer complying with this Clause 10, Core42 will defend the Customer and the Customer's employees, officers, and directors against any third party claim alleging that the Services infringe or misappropriate that third party's Intellectual Property Rights, and will pay the amount of any adverse final judgment or settlement.

10.3 Core42 will have no obligations or liability under this Clause 10 arising from infringement by combinations of the Services or the Customer Data, as applicable, with any other product, service, software, data, content or method. In addition, Core42 will have no obligations or liability arising from the Customer's or any End User's use of the Services after Core42 has notified the Customer to discontinue such use.

10.4 The remedies that Core42 provides in this Clause 10 are the Customer's sole and exclusive remedies for any third party claims of infringement or misappropriation of Intellectual Property Rights by the Services or by the Customer Data, as applicable.

10.5 For any claim covered by Clause 10.2, Core42 will, at its election, either:

  1. procure the rights to use that portion of the Services alleged to be infringing;
  2. replace the alleged infringing portion of the Services with a non-infringing alternative;
  3. modify the alleged infringing portion of the Services to make it non-infringing; or
  4. terminate the allegedly infringing portion of the Services or this Agreement.

10.6 Core42's obligations under this Clause 10 will only apply if the Customer:

  1. gives Core42 prompt written notice of the claim;
  2. permits Core42 to control the defence and settlement of the claim; and
  3. reasonably cooperates with Core42 (at Core42's expense) in the defence and settlement of the claim. In no event will the Customer agree to any settlement of any claim that involves any commitment, other than the payment of money, without Core42's written consent.

11. CONFIDENTIALITY

11.1 Subject to Clause 11.2, each party shall treat as strictly confidential all information received or obtained as a result of entering into or performing this Agreement which relates to the provisions or the subject matter of this Agreement or any document referred to herein, including a Service Order.

11.2 Each party may disclose information which would otherwise be confidential if and to the extent:

  1. required by the law of any relevant jurisdiction or for the purposes of judicial proceedings;
  2. required by any securities exchange or regulatory or governmental body to which any party is subject or submits, wherever situated, and any taxation and/or revenue authority, whether or not the requirement for information has the force of law;
  3. that the information is disclosed on a strictly confidential basis to the professional advisers, auditors and/or bankers of that party;
  4. that the information has come into the public domain through no fault of that party;
  5. that the other party has given prior written approval to the disclosure, such approval not to be unreasonably withheld or delayed; or
  6. required to enable that party to enforce its rights under this Agreement,

provided that any such information disclosed pursuant to 11.2(a) or 11.2(b) shall (to the extent permitted by Applicable Law) be disclosed only after notice to the other party.

11.3 In addition to the provisions of Clause 11.2, Core42 may disclose confidential information to any Core42 Personnel, Core42's Affiliates, and subcontractors of Core42 and Core42's Affiliates, subject to the extent reasonably necessary to enable the Services to be provided or received, provided that Core42 shall procure that any such recipients are subject to obligations of confidentiality in terms no less onerous than those set out in this Clause 11.

11.4 The restrictions contained in this Clause 11:

  1. do not apply to the Customer Data;
  2. do not apply to any data which is processed, stored or hosted by a Third Party Product provider (which shall be governed by the relevant Third Party Agreement); and
  3. shall continue to apply for three (3) years after termination of this Agreement.

12. LIMITATION OF LIABILITY

12.1 Nothing in this Agreement shall operate so as to exclude or limit Core42's liability for:

  1. death or personal injury arising out of negligence;
  2. fraud or fraudulent misrepresentation; or
  3. any other liability that cannot be excluded or limited by law.

12.2 Subject to Clause 12.1, under no circumstances shall Core42 be liable under or in relation to this Agreement, including under all Service Orders and however arising, including (but not limited to) liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty or otherwise for any of the following types of loss or damage:

  1. any indirect or consequential loss or damage;
  2. any loss of profits, loss of revenue, loss of use, loss of customers, loss of anticipated savings, loss of goodwill or loss of contracts or any loss arising from damaged, corrupted or lost data (in each case whether direct or indirect or consequential); and/or
  3. any punitive or exemplary damages,

even if Core42 knew of, had been advised of the possibility of, or foreseen, that such loss or damage may be incurred.

12.3 Subject to Clause 12.1 and Clause 12.2, under no circumstances shall Core42's total aggregate liability (however arising) under or in relation to this Agreement (including under all Service Orders), including (but not limited to) liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, liability under any indemnity or any other liability, exceed a sum equal to the total Fees paid in the first twelve (12) months of the Term.

12.4 Except as otherwise expressly provided for in this Agreement:

  1. the Services are provided on an “as is” basis; and
  2. to the greatest extent permitted by Applicable Law, Core42 hereby excludes all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law.

13. CHANGES

13.1 Core42 may modify this Agreement at any time by notifying the Customer in accordance with Clause 14 of this Agreement or by publishing the updated version on Core42's website. Any changes made under this Clause 13.1 will take effect in accordance with Clause 13.2 or 13.3, as applicable.

13.2 Subject to Clause 13.3, Core42 will provide the Customer with at least ninety (90) days’ prior notice if Core42:

  1. amends or discontinues any of the Services and doing so will discontinue material functionality of the Services; or
  2. make materially adverse changes to any applicable Service Level or the Customer Support Plan.

Any changes made under this Clause 13.2 will not take effect until after expiry of the then-current Committed Service Period or Renewal Period (as applicable).

13.3 Such ninety (90) days’ notice will not be required under Clause 13.2 if it would:

  1. pose a security or Intellectual Property Rights issue or other issue or risk to Core42, Core42's Affiliates, vendors, other customers or the Services;
  2. be economically or technically burdensome and unreasonable; or
  3. cause Core42 to breach Applicable Law or guidance from a Governmental Authority.

Any changes made under this Clause 13.3 will take effect immediately upon Core42's notification or publication (as applicable) under Clause 13.1.

14. NOTICES

14.1 Core42 may notify the Customer by sending an email to the email address then associated with the Customer Account, or as set out in the first Service Order entered into under this Agreement, which will be the email address used to accept this Agreement unless expressly stated otherwise by the Customer in writing or by contacting the Customer by personal delivery, overnight courier or registered or certified mail to the mailing address set out in the Agreement Details or the Service Order Confirmation (as applicable). The Customer may update such details for notices to the Customer by emailing Core42.

14.2 The Customer may notify Core42 by personal delivery, overnight courier or registered or certified mail, or by email (addressed to the relevant Core42 Contact and with a copy to Core42 Notices at Core42.Notices@Core42.ai). Core42's mailing address and email details are set out in the Agreement Details or the Service Order Confirmation (as applicable). Core42 may update such details for notices by posting a notice on Core42's website or by emailing the Customer.

14.3 Notices provided by personal delivery and email will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three (3) business days after they are sent.

15. INTELLECTUAL PROPERTY RIGHTS

15.1 Except as expressly stated in this Agreement, neither party shall acquire any right, title or interest in or to the other party’s or its licensors’ Intellectual Property Rights. Accordingly:

  1. the Customer and its licensors retain all Intellectual Property Rights in the Customer Data; and
  2. Core42 and its licensors retain all Intellectual Property Rights in the Services, Deliverables and Core42 Marks.

Where either party acquires, by operation of law, title to Intellectual Property Rights that is inconsistent with the allocation of title set out in this Clause 15.1, it shall assign in writing such Intellectual Property Rights as it has acquired to the other party on the request of the other party (whenever made).

15.2 Core42 hereby grants to the Customer, or shall procure the grant of, a non-exclusive, worldwide, royalty-free and non-transferable licence to use each Deliverable during its applicable Licence Term solely for the Customer's internal business purposes. Unless otherwise agreed in the relevant Service Order, the Customer shall not sub-licence, assign or otherwise transfer the rights granted in this Clause 15.2.

15.3 Subject to the Customer's compliance with this Agreement, Core42 hereby grants to the Customer, or shall procure the grant of, a revocable, non-exclusive, non-transferrable, limited right to use the written name of “Core42” in the Customer's marketing channels solely for the purpose of informing the relevant recipient that the Customer uses the Services. For the avoidance of doubt, this limited right does not include a right to use any logo or similar representation of the Core42 name, and the Customer hereby acknowledges that it is not granted any further rights in respect of the Core42 Marks. If the Customer wishes to use the Core42 Marks for any purpose not permitted in this Clause 15.3, the Customer must request and Core42 must provide its express prior written consent.

15.4 If the Customer provides any Suggested Improvements to Core42 or its Affiliates, Core42 and Core42's Affiliates may use the Suggested Improvements without restriction and without obligation to the Customer.

15.5 Core42 may collect and use Usage Data to develop, improve, support, and operate the Services. Core42 may not share Usage Data with a third party except to the extent the Usage Data is aggregated and anonymised such that the Customer cannot reasonably be identified.

16. ENTIRE AGREEMENT

16.1 This Agreement (including all Service Orders entered into under it) constitutes the entire agreement between the parties and supersedes and extinguishes all agreements, arrangements, promises, undertakings, proposals, warranties, representations and understandings between them at any time before their respective signature (“Pre-Contractual Statements”), whether written or oral, relating to its subject matter.

16.2 Each party acknowledges that in entering into this Agreement it does not rely on any Pre-Contractual Statement made by or on behalf of the other party (whether made innocently or negligently) in relation to the subject matter of this Agreement, other than those which are set out expressly in this Agreement.

16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on, and hereby waives all rights and remedies which might otherwise be available to it in relation to, any Pre-Contractual Statement.

16.4 Nothing in this Clause 16 shall limit or exclude the liability of either party arising out of any pre-contractual fraudulent misrepresentation or fraudulent concealment.

17. GENERAL

17.1 The Customer will not assign or otherwise transfer this Agreement or any of the Customer's rights and obligations under this Agreement, without Core42's prior written consent.

17.2 Core42 may subcontract its obligations under this Agreement, but Core42 will remain liable to the Customer for any subcontracted obligations.

17.3 Neither party shall 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 a payment obligation) if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three (3) consecutive months, the party not affected may terminate this Agreement by giving fourteen (14) days' prior written notice to the affected party.

17.4 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall prevent or restrict the further exercise of that or any other right or remedy.

17.5 The Customer represents to Core42 that it is authorised to enter into this Agreement. If the Customer is entering into this Agreement on behalf of an entity, such as the company that the Customer works for, the Customer represents to Core42 that the Customer is authorised to bind that entity.

17.6 Neither party will issue any press release or make any other public communication with respect to this Agreement without the prior written consent of the other party.

17.7 This Agreement may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

17.8 Nothing in this Agreement is intended to, or shall 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.

17.9 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this Clause 17.9, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.10 Except as provided in Clause 10 and Clause 15 of this Agreement, this Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

17.11 All communications and notices made or given pursuant to this Agreement must be in the English language. If Core42 provides a translation of the English language version of this Agreement, the English language version of this Agreement will control if there is any conflict.

17.12 Unless expressly required otherwise by law, this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

17.13 Each party irrevocably agrees that the courts of the Abu Dhabi Global Market in Abu Dhabi shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

ANNEX A (DEFINITIONS AND INTERPRETATION)

1. Definitions

Unless otherwise stated or the context otherwise requires, the following capitalised terms shall have the meanings set out below when used in this Agreement:

“Accepted”
(a) where a Service Order is placed by the Customer via a Core42 website for the Services, the date that Core42 provides the Customer with the Service Order Confirmation; or
(b) where a Service Order is not placed via a Core42 website, the date that the Service Order has been agreed and signed by the parties.
“Account”
the Customer's Core42 Platform account.
“Affiliate”
in relation to the Customer, any person directly or indirectly Controlling, Controlled by or under direct or indirect Common Control with that Party from time to time; and (ii) in relation to Core42, includes Group 42 Holding and any person that is Controlled by Group 42 Holding.
“Agreement”
includes the Clauses of the main body of this document, together with: (i) the Annexes to it; and (ii) each Service Order that has been agreed by Core42 and the Customer in accordance with Clause 1 of this Agreement.
“Agreement Details”
where a Service Order is not placed via a Core42 website, the Agreement Details document issued by Core42 and executed by the Customer and Core42.
“Anti-corruption Laws”
all applicable laws, decrees and regulations prohibiting corruption and improper payments and/or gifts to government officials, commercial bribery, money laundering, and other similar anti-bribery and anti-corruption laws and regulations, including but not limited to, the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act of 2010.
“Applicable Laws”
all applicable laws, statutes, regulations and Anti-corruption Laws in force from time to time.
“Authentication Credentials”
has the meaning given to it in Clause 3.5(b).
“Committed Service Period”
has the meaning given to it in the applicable Service Order.
“Controlling”
(including the terms Controlling, Controlled by and under Common Control) with respect to the relationship between two or more persons, means the power, directly or indirectly, to direct or cause the direction of a person, regardless of whether through the ownership of assets or shares, by contract, or in any other way.
“Core42”
CORE42 TECHNOLOGY PROJECTS LLC a limited liability company incorporated in the Emirate of Abu Dhabi, United Arab Emirates with licence number CN-4236037 and registered address at Capital Gate Tower, Khaleej Al Arabi Street, Abu Dhabi, UAE.
“Core42 Contact”
has the meaning given to it in the Agreement Details.
“Core42 Marks”
any trade marks, service marks, service or trade names, logos, and other designations of Core42 and/or its Affiliates that Core42 may make available to the Customer in connection with this Agreement or that the Customer otherwise gains access to.
“Core42 Personnel”
all people working for or on behalf of Core42, including employees, directors, officers, seconded workers, volunteers, interns, agents, and contractors.
“Core42 Platform”
a computing platform or proprietary business application made available by Core42 to the Customer pursuant to this Agreement, excluding any Third Party Products.
“Customer”
the entity or individual agreeing to this Agreement.
“Customer Data”
any data that the Customer or any End User provides to Core42 through the Services and which is processed, stored or hosted on a Core42 Platform, including but not limited to Personal Data, and excluding any data that is processed, stored or hosted on a Third Party Product.
“Customer Personnel”
any of the Customer’s or its third party suppliers’ users, employees, workers, directors, officers, agents, consultants and/or contractors.
“Customer Support Plan”
if applicable, any customer support plan that Core42 offers to the Customer with respect to the Services as specified in a Service Order, and as updated by Core42 from time to time.
“Deliverable”
any output of the Professional Services which Core42 provides to the Customer as specified in a Service Order (if applicable).
“Dependency”
any dependency or responsibility of the Customer as specified in a Service Order (if applicable).
“Dependent Service”
has the meaning given to it in Clause 8.4 of this Agreement.
“Effective Date”
(c) where a Service Order is placed by the Customer via a Core42 website for the Services, the date that Core42 provides the Customer with the Service Order Confirmation; or
(d) where a Service Order is not placed via a Core42 website, the effective date included in the Agreement Details.
“End User”
any third party that directly or indirectly: a) accesses or uses the Customer Data; or b) otherwise accesses or uses the Services. A “third party” in this respect shall include any of the Customer employees, workers, contractors, representatives, agents or other third party.
“Fees”
has the meaning given to it in the relevant Service Order.
“Force Majeure Event”
a circumstance or set of circumstances beyond the reasonable control of either party including: (a) flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) failure of a utility service or transport or telecommunications network; (d) terrorist attack, civil war, civil commotion or riots, war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; (f) default of suppliers or subcontractors; and (g) lock-outs, strikes and other industrial disputes.
“Governmental Authority”
any foreign, federal, national, supranational, multilateral, state, provincial, county, municipal, local, or similar government, governmental, regulatory or administrative authority, agency, department, board, bureau, or commission thereof, government-owned or government-controlled (in whole or in part) corporation, legal entity, non-profit entity, or commercial enterprise, any public international organisation, or any court, tribunal, or judicial or arbitral body.
“Group 42 Holding”
Group 42 Holding Limited, a company registered in the Abu Dhabi Global Market with company number 000001430 and whose registered office is at Office 801, Floor 8, Al Khatem Tower, ADGM, Al Maryah, Abu Dhabi, UAE.
“Insolvency Proceedings”
in respect of the Customer: (a) other than for the purposes of a bona fide reconstruction or amalgamation, passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved, or it being otherwise dissolved; (b) the appointment of an administrator of, or the making of an administration order in relation to it, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of its undertaking, assets, rights or revenue; (c) entering into an arrangement, compromise or composition in satisfaction of the Customer's debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making an application to a court of competent jurisdiction for protection from the Customer's creditors; (d) being unable to pay its own debts, or being capable of being deemed unable to pay its own debts, within the meaning of section 123 of the Insolvency Act 1986 (or any equivalent or analogous legislation applicable to the Customer); (e) entering into any arrangement, compromise or composition in satisfaction of the Customer debts with its creditors; or (f) any similar act or circumstances arising in any other applicable jurisdiction.
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future in any part of the world.
“Licence Term”
in respect of each Deliverable, the duration of the licence granted by Core42 under Clause 15.2 of this Agreement, as specified in the relevant Service Order.
“Personal Data”
any information which is related to an identified or identifiable individual.
“Platform Service”
the provision of access to the Customer Data on a Core42 Platform under a Service Order.
“Professional Service”
any professional service supplied under a Service Order (including any Deliverable), as such service may be supplemented, enhanced, modified or replaced from time to time by agreement between the parties, excluding any Third Party Products.
“Renewal Period”
has the meaning given to it in the Service Order (if applicable).
“Reseller”
a person authorised by Core42 to resell the Services to the Customer.
“Service Levels”
any service levels that Core42 offers to the Customer with respect to the Services as specified in a Service Order, and as updated by Core42 from time to time.
“Service Order”
(e) a service order form issued by Core42 under this Agreement and executed by the Customer and Core42; or
(f) an order placed by the Customer though a Core42 website for the Services,
in each case specifying the Services Core42 will provide to the Customer and/or the Third Party Products that Core42 will resell to the Customer.
“Service Order Confirmation”
where a Service Order is placed by the Customer though a Core42 website for the Services, the order confirmation provided by Core42 to the Customer to confirm that the Service Order has been accepted by Core42.
“Services”
(g) any Platform Service; and/or
(h) any other service supplied to the Customer under a Service Order, including any Professional Service,
and in the case of each of (a) and (b), excluding any Third Party Products.
“Suggested Improvement”
all suggested improvements to the Services that the Customer or the Customer's End Users provide to Core42 or Core42's Affiliates.
“Term”
the duration of this Agreement determined in accordance with Clause 8.1 of this Agreement.
“Termination Period”
has the meaning given to it in Clause 9.2 of this Agreement.
“Third Party Agreement”
an agreement between the Customer (or the Customer’s End User) and a third party for the supply of a Third Party Product, as identified in a Service Order.
“Third Party Product”
any third party service, software, product or other offering that is identified in a Service Order as being supplied by a third party (including any service, software, product or other offering resold by Core42 under such Service Order).
“Usage Data”
information reflecting the access, interaction, or use of the Services or any Core42 Platform by or on behalf of the Customer or an End User, including frequency, duration, volume, features, functions, visit, session, click-through or click-stream data, and statistical or other analysis, information, or data based on, or derivative works of, the foregoing. Usage Data does not include the Customer Data.
“VAT”
value added tax payable in respect of goods or services as introduced pursuant to the United Arab Emirates’ federal decree law No.8 of 2017 and Cabinet Decision No. (52) of 2017 on the Executive Regulations of the Federal Decree-Law No. (8) of 2017 on Value Added Tax, and any other value added tax, replacement value added tax or other sales tax which is levied pursuant to Applicable Law from time to time.

2. Interpretation

In this Agreement, unless otherwise specified:

  1. references to a “party” are to the Customer or Core42 (as the context requires) and references to the “parties” are to both the Customer and Core42;
  2. references to “Clauses” are to clauses of this Agreement;
  3. references to “Sections” are to sections of the Annexes to this Agreement;
  4. references to “Paragraphs” are to paragraphs of the Schedules to the Service Orders to this Agreement;
  5. the Clause, Section, Paragraph, Schedule and Annex headings in this Agreement are for convenience and do not affect its interpretation;
  6. a reference to a statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted;
  7. references to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;
  8. references to a “person” shall be construed so as to include any individual, firm, company, government, state or agency of a state or any joint venture, association or partnership or any other legal entity (whether or not having separate legal personality);
  9. references to writing shall include any modes of reproducing words in a legible and non-transitory form including email;
  10. references to the singular include the plural and vice versa, and references to one gender include the other gender;
  11. references to times of the day are to UAE time and references to a month are to a Gregorian calendar month; and
  12. any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

ANNEX B (COMPLIANCE)

1. Definitions

1.1 In this Annex B, unless otherwise indicated or the context otherwise requires, the following words and phrases shall have the meanings set out below:

  1. “Access” means to, or the right or ability to obtain, read, copy, edit, divert, release, affect, alter the state of, or view information, data, or systems in any form, whether remotely or electronically, including through information technology systems, cloud computing platforms, networks, data, security systems, software, or hardware.
  2. “Country Group E” means countries listed in Supplement No. 1 to 15 C.F.R. Part 740 (currently: Cuba, Iran, North Korea, and Syria). Country Group E is subject to amendment by the Bureau of Industry of Security of the United States (“U.S.”) Department of Commerce and any such amendment shall apply as agreed between the parties to this Agreement.
  3. “Person” includes all natural persons and legal entities. For the avoidance of doubt, Person includes (but is not limited to) the Customer Personnel, as well as any other corporate, legal, or government organisational entity.
  4. “Restricted Equipment or Service” includes any information communication item (including commodity, technology, or software) or service capable of accessing data and information, including system privileges, that was developed, produced, provided, and/or manufactured by a company: (1) headquartered in or with parent company headquartered in People’s Republic of China (“China”), Hong Kong, Macau, the Russian Federation, or Belarus; (2) headquartered in countries in Country Group E of the Export Administration Regulations (“EAR”) or a company with a parent company headquartered in Country Group E; (3) listed on U.S. Government Consolidated Screening List; or (4) identified in Section 889 of the 2019 John S. McCain National Defense Authorization Act pursuant to Federal Acquisition Regulation 52.204-23 through 52.204-26.
  5. “Restricted Persons” includes any Person who is: (1) a national of China or Person of any nationality working for companies headquartered in or with parent companies headquartered in China; (2) a national of a country in Country Group E or of any nationality working for companies headquartered in or with parent companies headquartered in a country of Country Group E; (3) of any nationality working for or on behalf of a party on the U.S. EAR Entity List; or (4) working on behalf of China or a Country Group E country or headquartered in China or a Country Group E country, either directly or indirectly.
  6. “Sanctions Authority” means the Cabinet of the United Arab Emirates Federal Government, the United Arab Emirates Executive Office for Control and Non-Proliferation, the United Nations Security Council (the Council as a whole and not its individual members), the U.S. Department of State, the U.S. Department of Commerce Bureau of Industry and Security, the U.S. Department of the Treasury Office of Foreign Assets Control, the European Union Council and/or Commission (including any present or future member state of the European Union), the Office of Financial Sanctions Implementation within His Majesty's Treasury of the United Kingdom, the United Kingdom Department of Business and Trade, and any other applicable government or regulatory body, institution or agency having similar jurisdiction.
  7. “Sanctions Laws” means economic or financial sanctions together with any other law, regulation, order, directive, or guidance (with the effect of law) imposed by a Sanctions Authority that imposes trade or economic restrictive measures against countries, territories, individuals or entities.
  8. “Sanctions Target” means (a) the government of any Sanctioned Territory; (b) to the extent restricted under Sanctions Laws, any individual or entity that is (or was at the relevant time) resident in, located in, organised under the laws of, or subject to the jurisdiction of, a Sanctioned Territory; (c) any individual or entity that is designated on any list promulgated administered, or enforced by a Sanctions Authority; or (d) any entity that is owned or controlled directly or indirectly by, or any individual or entity acting for or on behalf of, any of the foregoing or otherwise targeted under any Sanctions Laws.
  9. “Sanctioned Territory” means any country or territory that is, or whose government is, the target of comprehensive economic or trade sanctions or restrictive measures imposed by any Sanctions Authority, which currently (at the time of this Agreement) include the Crimea, Kherson, Zaporizhzhia, the so-called Donetsk People's Republic, and the so-called Luhansk People's Republic regions of Ukraine, Cuba, Iran, North Korea and Syria.
  10. “Trained Models” means the “closed source” source code of a large language model or other large deep learning or neural network model.

2. Compliance

  1. The Customer represents and warrants to Core42 that:
    1. as of the Effective Date, neither the Customer nor any of the Customer's Affiliates, or any of the Customer or the Customer's Affiliates’ respective directors, officers, representatives, advisers, or agents is a Sanctions Target; and
    2. neither the Customer nor any of the Customer's Affiliates, so far as it is aware (having conducted due and careful enquiry) has or will engage in any conduct that the Customer or any such Affiliate can reasonably foresee may render the Customer or any such Affiliate a Sanctions Target.
  2. The Customer will not use or Access the Services from or for the benefit of, or export or re-export any element of the Services or any Core42 Platform into any Sanctioned Territory or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, any other restricted party lists (existing at the Effective Date or in the future) identified by the Office of Foreign Asset Control, or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted party lists.
  3. The Customer hereby undertakes to complete and comply at all times with the compliance certification (“Certification”) set out in Section 3 of this Annex B.
  4. The Customer hereby undertakes to provide all information required by Core42 in order for Core42 to complete its client due diligence checks and onboarding process. Failure by the Customer to provide information when requested by Core42 and/or provision by the Customer of information which does not satisfy Core42's client due diligence checks and onboarding process, shall be deemed to be a material breach pursuant to Clause 8.2(b) of the Agreement.

3. Compliance Certification

3.1 Export Licence Required

If the applicable Service Order indicates that an export licence is required, then the Customer certifies that:

  1. Commitment to Comply. The Customer understands that all or part of the Regulated Services provided under this Agreement are regulated under U.S. export control laws and regulations. The Customer hereby affirms its commitment to comply with all applicable U.S. export control laws and regulations, including but not limited to, the EAR and the International Traffic in Arms Regulations in the Customer’s use and Access of the Regulated Services. This commitment includes ensuring that the Regulated Services are not used, distributed, transferred, or Accessed in a manner that would violate these regulations.
  2. Use Restrictions. The Customer agrees to use the Regulated Services solely for lawful purposes and in accordance with the terms set forth in this Agreement. The Customer must not and shall ensure that none of its Personnel use the Regulated Services for any military (or military-intelligence) end use, retransfer or transfer any Items to or for end use by a military (or military-intelligence) end use or military (or military-intelligence) end user, or any other prohibited or restricted end use or end user, in each case as set forth in the EAR, including in EAR Part 744. The Customer shall not make the Regulated Services directly or indirectly available to any Person or country prohibited by U.S. export control laws and regulations. The Customer shall ensure that no Restricted Persons gain direct or indirect Access to the Regulated Service.
  3. Due Diligence and Compliance Assurance. The Customer is responsible for conducting due diligence and ensuring that the Customer’s Personnel involved in using the Regulated Services comply with the aforementioned U.S. export control laws and regulations. This includes implementing effective compliance and training programmes to prevent unauthorised use or Access of the Regulated Services.
  4. Access Credentials. The Customer shall ensure that credentials granting Access to the Regulated Services such as, but not limited to, user names, passwords, API keys and two-factor-authentication devices, shall at all times be kept at the exclusive availability of the Persons authorised to Access the Regulated Services and inaccessible to Restricted Persons.
  5. Notification of Non-Compliance. The Customer shall immediately notify Core42 in writing upon becoming aware of any violation or potential violation U.S. export control laws and regulations related to the use of or Access to the Regulated Services and of any unauthorised Access to the Regulated Services by a Restricted Person. The Customer agrees to cooperate fully with Core42 and relevant local and U.S. authorities in any investigation regarding such violations.
  6. Output Models. The Customer understands that by accessing and using the Regulated Services for the purpose of training artificial intelligence (“AI”) models, such Trained Models become subject to this Certification. The Customer understands that such Trained Models may not be transferred, exported, or re-exported, directly or indirectly, nor shall Access be provided, (i) to any Restricted Person; or (ii) in any manner contrary to the requirements of all applicable EAR, Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce regulations and any other relevant U.S. export control laws in relation to the development, use, and transfer of Trained Models. The Customer agrees to impose strict controls over the use and transfer of Trained Models. This includes implementing measures to prevent unauthorised Access, use, or transfer of Trained Models, including but not limited to, obtaining the necessary export licences or authorisations before transferring a Trained Model to any third party, entity, or country and ensuring that all users are aware of and comply with these restrictions. The Customer shall conduct thorough due diligence and implement verification procedures to ensure that any party receiving Trained Models is eligible to receive such models under this Certification and applicable export control laws. This includes screening for Restricted Persons and verifying the end use and end users of Trained Models.
  7. Right of Audit. Core42 reserves the right to audit the nature and purpose of any AI models which the Customer trains using the Services to: (A) ensure the Customer’s compliance with Applicable Laws, and the terms of this Agreement; and (B) facilitate Core42’s and its Affiliates’ compliance with the requirements of any Governmental Authority (including requirements set out in contracts between Core42 and/or its Affiliates and third parties). This right of audit may include, but is not limited to, reviewing the algorithms, data sets and outputs of the AI models.

    The Customer agrees to maintain accurate and comprehensive records relating to the Customer’s use of the Services for AI model training. Upon reasonable notice, the Customer shall provide Core42 with access to these records, and if requested, demonstrations of the AI models, to facilitate the audit.

    Core42 shall provide the Customer with at least thirty (30) days’ written notice before conducting an audit. Audits shall be conducted during normal business hours in a manner that minimises disruption to the Customer’s operations. Core42 may conduct audits directly or through a mutually agreed upon third-party auditor.

    If the audit reveals that the Customer has trained AI models using the Services in a manner that is inconsistent with Applicable Laws, or the terms of this Agreement, Core42 may (i) suspend provision of Services to the Customer at the Customer’s expense and (ii) require the Customer to take immediate corrective action. Failure to comply with such corrective actions may result in the termination of the Customer’s Access to the Services, in addition to other remedies available under law or equity.

    All information obtained by Core42 during the course of an audit will be treated as confidential and will be used solely for the purpose of ensuring compliance with the terms of this Agreement and Applicable Laws.

    The cost of the audit shall be borne by Core42, unless the audit reveals the Customer’s material non-compliance, in which case the Customer shall reimburse Core42 for all reasonable costs associated with the audit, including legal costs and fees imposed by any regulatory or government entities.
  8. Restricted Equipment. The Customer shall ensure that no Restricted Equipment is introduced (downloaded, installed, executed, or used) in Core42’s systems or networks that the Customer may have Access to or that may be under the Customer’s control throughout the duration of this Agreement.
  9. Remedies. If the Customer fails to comply with the obligations set forth in this Section, Core42 reserves the right to immediately suspend Access to the Regulated Services, terminate this Agreement and seek any other remedies available under law or equity. The Customer acknowledges that non-compliance with U.S. export control laws and regulations may also expose the Customer to governmental penalties and sanctions.
  10. Indemnification. The Customer agrees to indemnify and hold harmless Core42 from any and all claims, damages, penalties, costs, and expenses (including legal fees) arising from or related to the Customer’s non-compliance with any Applicable Laws, including U.S. export control laws and regulations, as stipulated in this Section.

3.2 Export Licence Not Required

If the applicable Service Order indicates that an export licence is not required, then the Customer certifies that:

  1. Use Restrictions. The Customer shall not and shall ensure that none of the Customer’s personnel use the Platform for any military (or military-intelligence) end use, retransfer or transfer any Items to or for end use by a military (or military-intelligence) end use or military (or military-intelligence) end user, or any other prohibited or restricted end use or end user, in each case as set forth in the EAR, including in EAR Part 744.
  2. Access Credentials. The Customer shall ensure that credentials granting Access to the Services such as, but not limited to, user names, passwords, API keys and two-factor-authentication devices, shall at all times be kept at the exclusive availability of the Persons authorised to Access the Services and inaccessible to Restricted Persons.
  3. Output Models. The Customer understands that by accessing and using the Services for the purpose of training AI models, such Trained Models might become subject to the EAR administered by the BIS of the U.S. Department of Commerce. The Customer understands that such Trained Models may not be transferred, exported, or re-exported, directly or indirectly, nor shall Access be provided, (i) to any Restricted Person; or (ii) in any manner contrary to the requirements of all applicable EAR, BIS regulations and any other relevant U.S. export control laws in relation to the development, use, and transfer of Trained Models. The Customer agrees to impose strict controls over the use and transfer of Trained Models. This includes implementing measures to prevent unauthorised Access, use, or transfer of Trained Models, including but not limited to, obtaining the necessary export licences or authorisations before transferring a Trained Model to any third party, entity, or country and ensuring that all users are aware of and comply with these restrictions. The Customer shall conduct thorough due diligence and implement verification procedures to ensure that any party receiving Trained Models is eligible to receive such models under this Certification and applicable export control laws. This includes screening for Restricted Persons and verifying the end use and end users of Trained Models.
  4. Right of Audit. Core42 reserves the right to audit the nature and purpose of any AI models which the Customer trains using the Services to: (A) ensure the Customer’s compliance with Applicable Laws, and the terms of this Agreement; and (B) facilitate Core42’s and its Affiliates’ compliance with the requirements of any Governmental Authority (including requirements set out in contracts between Core42 and/or its Affiliates and third parties). This right of audit may include, but is not limited to, reviewing the algorithms, data sets and outputs of the AI models.

    The Customer agrees to maintain accurate and comprehensive records relating to the Customer’s use of the Services for AI model training. Upon reasonable notice, the Customer shall provide Core42 with access to these records, and if requested, demonstrations of the AI models, to facilitate the audit.

    Core42 shall provide the Customer with at least thirty (30) days’ written notice before conducting an audit. Audits shall be conducted during normal business hours in a manner that minimises disruption to the Customer’s operations. Core42 may conduct audits directly or through a mutually agreed upon third-party auditor.

    If the audit reveals that the Customer has trained AI models using the Services in a manner that is inconsistent with Applicable Laws, or the terms of this Agreement, Core42 may (i) suspend provision of Services to the Customer at the Customer’s expense and (ii) require the Customer to take immediate corrective action. Failure to comply with such corrective actions may result in the termination of the Customer’s Access to the Services, in addition to other remedies available under law or equity.

    All information obtained by Core42 during the course of an audit will be treated as confidential and will be used solely for the purpose of ensuring compliance with the terms of this Agreement and Applicable Laws.

    The cost of the audit shall be borne by Core42, unless the audit reveals the Customer’s material non-compliance, in which case the Customer shall reimburse Core42 for all reasonable costs associated with the audit, including legal costs and fees imposed by any regulatory or government entities.
  5. Remedies. If the Customer fails to comply with the obligations set forth in this Section, Core42 reserves the right to immediately suspend Access to the Services, terminate this Agreement and seek any other remedies available under law or equity. The Customer acknowledges that non-compliance with U.S. export control laws and regulations may also expose the Customer to governmental penalties and sanctions.
  6. Indemnification. The Customer agrees to indemnify and hold harmless Core42 from any and all claims, damages, penalties, costs, and expenses (including legal fees) arising from or related to the Customer’s non-compliance with any Applicable Laws, including U.S. export control laws and regulations, as stipulated in this Section.
  7. Notification. The Customer shall notify Core42 if, at any time, the Customer has knowledge that the above condition has not been met.

3.3 Definitions for Section 3

For all purposes of this Section 3:

“Export Controlled Assets” means system components subject to export control licence requirements that perform basic operations (such as basic or advanced data or graphics processing) of the system, that exchange data with system memory or peripherals, and that manage other system components, including sub-processors.

“Regulated Services” means all such Services that are enabled, enhanced or augmented by, or that otherwise require Export-Controlled Assets or Trained Models for their functioning.

“Trained Models” means the “closed source” source code of a large language model or other large deep learning or neural network model trained using Export-Controlled Assets.