Terms of Service

1. About these Terms and how you accept them

These Terms of Service (the “Terms”) form a binding agreement between EverXCloud Inc., a Delaware corporation (“EverXCloud”, “we”, “us” or “our”), whose registered office is at 8 The Green, Suite #19720, Dover, DE 19901, United States, and the person or entity that creates an account on, or uses, the Services (the “Customer” or “you”). They apply to every use of the Services, whether through the Portal, the API or any other interface we make available. Effective date: 19 October 2026. Version: 2026-10-19.

You accept these Terms by ticking the acceptance box displayed in the Portal before your first top-up, your first launch of an Instance or your first purchase, or by any other affirmative act of acceptance we request (for example, at sign-up). We record the version accepted, the time of acceptance and the account member who accepted it. Until the current version has been accepted, no top-up, launch or purchase can be made. When we publish a new version that requires acceptance, it must be accepted again before the next top-up, launch or purchase, as described in Section 26.

Once these Terms have been accepted for an account, every use of the Services through that account, including every request made with an API key issued for that account, is made under these Terms and confirms your continued acceptance of them.

If you accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity, and “you” and “Customer” refer to that entity. If you do not have that authority, or do not agree to these Terms, you must not accept them and must not use the Services.

These Terms incorporate by reference the following documents, each available on everxcloud.ai: the Acceptable Use Policy (everxcloud.ai/legal/aup), the Refund and Cancellation Policy (the “Refund Policy”, everxcloud.ai/legal/refunds), the Service Level Agreement (everxcloud.ai/legal/sla), the Tax Policy and Invoicing (the “Tax Policy”, everxcloud.ai/legal/taxes) and, for Business Customers, the Data Processing Addendum (everxcloud.ai/legal/dpa). Our Privacy Policy (everxcloud.ai/legal/privacy) and Cookie Policy (everxcloud.ai/legal/cookies) explain how we process personal data; they are information notices and not contractual terms. You can download or print these Terms at any time, and we will send you a copy on request to [email protected].

2. Definitions

In these Terms, the following capitalised terms have the meanings set out below. Other capitalised terms are defined where they first appear.

• “Business Customer” means a Customer that registers or uses the Services for purposes relating to its trade, business, craft or profession, including any company, partnership, public body, research institution or sole trader acting in a professional capacity.
• “Individual Customer” means a natural person who registers an Individual account and uses the Services for purposes that are wholly or mainly outside his or her trade, business, craft or profession.
• “Consumer” means an Individual Customer who qualifies as a consumer under the law of the country in which he or she habitually resides.
• “Customer Data” means all software, code, models, datasets, container images, files, content and other data that you or your users upload to, store on, process with or generate through the Services.
• “Instance” means a virtual or physical compute environment with one or more graphics processing units (GPUs) and associated resources, made available to you through the Services.
• “Interruptible Instance” means an Instance offered on an interruptible or preemptible basis, identified as such in the Portal, which may be stopped or reclaimed at any time without notice.
• “Order” means each contract for the supply of Services formed under Section 6, including the launch of an Instance, the execution of a Spot Order, the confirmation of a Reservation and the purchase of an Hour Pack.
• “Spot Order” means a buy order placed on the Spot Order Book under Section 10.
• “Spot Order Book” means the feature of the Portal and the API, sometimes called the “market” or “exchange”, that matches buy orders for hours of GPU compute with available capacity.
• “Reservation” means a forward reservation of a defined Instance configuration for a defined future time window, made under Section 11.
• “Hour Pack” means a prepaid entitlement to a defined number of hours of use of a defined Instance configuration, purchased under Section 12.
• “Prepaid Balance” means the amount, in a given currency, that you have paid to us in advance and that is recorded in your account for the purchase of Services, net of amounts charged.
• “Promotional Credits” means any amount or benefit granted to you without payment, including through a credit code, a referral reward, a welcome credit, a goodwill gesture or a service credit.
• “Portal” means the EverXCloud customer web application and dashboard.
• “API” means the EverXCloud application programming interfaces and related documentation.
• “Provider” means a third-party data centre or infrastructure operator whose hardware, facilities or network is used by us to deliver part of the Services.
• “Services” means the GPU compute, including the temporary local disk of each Instance, networking, Portal, API, Spot Order Book, Reservations, Hour Packs and all related services that we provide to you, as described in the Portal and in our documentation from time to time.
• “Policies” means the Acceptable Use Policy, the Refund Policy, the Service Level Agreement, the Tax Policy and, where applicable, the Data Processing Addendum.

Headings are for convenience only. The words “including” and “for example” are illustrative and do not limit the general words that precede them.

3. Eligibility and account types

You must be at least 18 years old and have full legal capacity to enter into a binding contract to use the Services. The Services are not directed to children, and we do not knowingly accept accounts from persons under 18.

When you register, you choose either an Individual account or a Business (Corporate) account, and you must choose truthfully. An Individual account may only be used by an Individual Customer. An Individual Customer may buy Services only: an Individual account may never offer, list or sell compute capacity, act as a Provider or supplier, list a Reservation for transfer, or receive payments from other users. Any selling or supplier functionality is available only to verified Business Customers under separate terms.

The account type and the business or consumer status you declare determine the legal protections and the tax treatment that apply to you. You are responsible for the accuracy of that declaration and must update it promptly if it changes. If you declare yourself a Business Customer, you confirm that you are acting for professional purposes and that the consumer protections described in Sections 33 and 34 do not apply to you.

You may not use the Services if you are, or are owned or controlled by, or act on behalf of, a person that is the target of sanctions or located, organised or ordinarily resident in a country or territory subject to comprehensive sanctions, as further described in Section 21. We may block access from certain countries or territories.

We may at any time require you to verify your identity (for Individual Customers) or the identity, ownership and activities of your business (for Business Customers), including by providing identification documents, company registration details, beneficial ownership information, a valid tax identification number or a statement of the intended end use of the Services. Business Customers must provide and keep current an end-use attestation before making any purchase. We may require verification before you exceed cumulative top-up thresholds, and we may apply usage limits, such as a limit on the number of GPUs that a new or unverified account may run concurrently. We may refuse, limit or close any account if verification is not completed or is unsatisfactory, subject to Section 25 and to the refund of any unused Prepaid Balance in accordance with the Refund Policy.

4. Accounts, security and API keys

You must provide complete and accurate registration, billing and contact information and keep it up to date. Unless we agree otherwise in writing, each natural person may hold only one Individual account, and you may not create accounts to circumvent limits, verification requirements, promotional rules or a suspension.

A Business account may have several members with different roles. The Customer is responsible for every member it invites, for the permissions and spending limits it assigns to them, and for all acts and omissions of its members as if they were its own.

You are responsible for keeping your login credentials, multi-factor authentication devices, SSH keys and API keys confidential and secure, and for all activity under your account, whether or not you authorised it, until you notify us of a compromise. API keys act as your credentials: any request authenticated with an API key issued for your account is treated as made by you. You must store API keys securely, never embed them in public code or client-side applications, restrict their permissions and spending limits where the Portal allows it, and rotate or revoke any key you suspect has been exposed.

You must notify us without undue delay at [email protected] if you become aware of any unauthorised access to or use of your account, credentials or API keys. We may suspend or revoke any credential or API key that we reasonably believe has been compromised or misused. You remain responsible for charges incurred before we have had a reasonable opportunity to act on your notification, except to the extent the unauthorised use results from our breach of these Terms.

5. The Services and our Providers

The Services consist of on-demand Instances, Interruptible Instances, networking, the Spot Order Book, Reservations, Hour Packs, the Portal and the API, as described in the Portal at the time of your Order. The configuration of an Instance (GPU model and count, memory, storage, region and other characteristics) is the configuration displayed for the offer you select. Performance figures, benchmarks and availability indications in the Portal are indicative unless they are expressly stated as commitments in the Service Level Agreement.

EverXCloud does not provide persistent storage. Data stored on an Instance is deleted when the Instance is destroyed; the Customer is responsible for keeping its own copies.

EverXCloud is the seller and merchant of record of every Service. We sell each Service to you in our own name and on our own account, and we issue the corresponding invoices and receipts. To deliver the Services, we operate certain hardware ourselves and we also use hardware, facilities and networks operated by Providers, which act as our subcontractors. We remain responsible to you for the Services in accordance with, and subject to, these Terms.

No contract is formed between you and any Provider by reason of your use of the Services, and you have no right to claim against a Provider under these Terms. Providers are not third-party beneficiaries of these Terms, and nothing in these Terms creates any partnership, agency or joint venture between you, us or any Provider. You must not attempt to contract with, contact or circumvent a Provider in connection with capacity you obtained through the Services, except as we expressly permit.

We may choose, replace or add Providers and may move an Instance or Reservation to other hardware of equivalent or better specifications, where this is reasonably necessary to deliver the Services, provided that this does not reduce the configuration you ordered. Information on the categories and locations of Providers that may process personal data is given in the Privacy Policy and, for Business Customers, in the Data Processing Addendum.

We may modify, improve or discontinue features of the Services. If we discontinue a Service that you are actively using, we will give you at least 30 days' notice unless the discontinuation is required by law, results from a Provider's withdrawal of capacity beyond our control, or is necessary for security reasons, and we will refund under the Refund Policy any amount you prepaid for that Service and cannot use, including the unused part of any Hour Pack or Reservation.

Part of the capacity offered through the Services is contracted directly by EverXCloud from data centers (“EverXCloud Capacity”). It is sold under the same Terms, prices and order rules as all other capacity. EverXCloud does not place orders it does not intend to execute, or orders designed to influence prices.

6. Orders and contract formation

The information displayed in the Portal or returned by the API about an offer, including its price, configuration and region, is an invitation to order. A separate Order is formed, on the terms of these Terms and of the information displayed at that time, when:

• for an on-demand Instance or an Interruptible Instance, we accept your launch request and begin provisioning the Instance;
• for a Spot Order, the Spot Order Book matches your buy order with available capacity, as described in Section 10;
• for a Reservation, you confirm the quote displayed to you and we confirm the Reservation;
• for an Hour Pack, you confirm the purchase and we confirm it.

Before you submit an Order, the Portal shows the main characteristics of the Service, the applicable price and its billing unit and, where applicable, the cancellation conditions. You can correct input errors at any time before you submit. Our confirmation is shown in the Portal or in the API response, and may also be sent by email or webhook.

We may decline or cancel any request before an Order is formed, including where capacity is no longer available, where the price displayed resulted from a manifest error, where your Prepaid Balance is insufficient, where a spending limit would be exceeded, or where verification, sanctions or security checks are not satisfied. If we cancel an Order after it is formed because of a manifest pricing error or because we cannot deliver it, you will not be charged for any part of the Order that was not delivered, and any amount held or charged for it will be released or returned to your Prepaid Balance.

7. Prepaid Balance

All Services are paid in advance. We do not offer post-paid billing, payment terms or credit of any kind. You fund your account by topping up your Prepaid Balance with the payment methods we make available, which may include card payments through our payment processor and bank transfers, within the minimum and maximum amounts displayed in the Portal. A top-up is credited only once we have received cleared funds; a bank transfer is credited in the amount actually received. Automatic top-ups and cryptocurrency payments are not currently offered; if we offer them, they will require a separate, express authorisation.

Your Prepaid Balance is recorded in the currency of the top-up, and charges for a Service are debited in the currency of that Service. We do not convert balances between currencies unless the Portal expressly offers it.

Your Prepaid Balance is an advance payment for Services. It is not a deposit, a bank account, a savings or payment account, electronic money or a stored-value instrument; it bears no interest; it has no cash value except as provided in the Refund Policy; and it is not transferable to any other account or person. It may be used only to pay for Services under these Terms. Paid Prepaid Balance does not expire. Your right to request a refund of unused paid Prepaid Balance, and the method and timing of refunds, are set out in the Refund Policy. Promotional Credits are not part of the paid Prepaid Balance and are never refundable.

When you place a Spot Order, confirm a Reservation or start another Service that requires it, we may place a hold on part of your Prepaid Balance. A hold does not debit your balance, but the held amount is not available for other purchases until it is consumed, reduced or released, as described in Sections 10 and 11. Your “available balance” is your Prepaid Balance less active holds.

To launch an Instance or start a stopped Instance, your available balance must cover at least one hour of your total committed hourly spend after the new resource is added. You may set an hourly spending cap for your account and, for Business accounts, daily or monthly spending limits for individual members or API keys, within any limit we set. Spending caps and limits are tools that prevent new spending once reached; they do not stop resources that are already running and they do not guarantee a maximum charge, because metered usage is recorded with a short technical delay. You remain liable for all usage actually metered.

We notify you by email, in the Portal and, if configured, by webhook when your available balance is estimated to cover approximately 24 hours, and then approximately one hour, of your current spend. It is your responsibility to keep a sufficient balance.

If your available Prepaid Balance reaches zero:

• all your running and stopped Instances are terminated, and launches in progress are cancelled, without further notice; billing for an Instance stops when its termination begins; data stored on the local disks of terminated Instances is permanently deleted and cannot be recovered;
• an Instance that results from a Spot Order or Reservation whose held funds still cover its use continues to run until those funds are exhausted or its term ends.

Your Prepaid Balance may become negative, for example as a result of usage metered after it reached zero, the reversal of a payment, a chargeback, or the withdrawal of Promotional Credits under Section 13. Any negative balance is a debt immediately due from you to us, will be deducted from your next top-up, and must be settled before you can use the Services again.

If a payment you made is reversed, disputed or charged back, we will debit the disputed amount from your Prepaid Balance, freeze your account until the matter is resolved, and, to the extent permitted by applicable law, charge a dispute handling fee of 15 units of the currency of the disputed top-up (for example, USD 15), which we reverse if the dispute is resolved in your favour. Before initiating a chargeback, please contact us at [email protected] so that we can resolve the issue.

8. Prices, metering and billing

Prices are those displayed in the Portal or returned by the API at the time an Order is formed. They are expressed in US dollars by default, or in euros or pounds sterling where you select those currencies and they are available. Prices displayed on our website and in the Portal exclude taxes unless they are expressly stated to include them; Section 9 and Section 33 apply. The price of an Instance, once the Instance is launched, is fixed for the life of that Instance. Price changes for new Orders take effect when published; they do not affect Instances already running, Reservations already confirmed or Hour Packs already purchased.

Instances are priced per hour and metered by the minute. Each calendar minute (UTC) during which an Instance is in a billable state, for any part of that minute, is charged at one sixtieth of the hourly price, calculated so that sixty consecutive billable minutes are charged exactly the hourly price. As a result, the minute in which an Instance becomes billable and the minute in which it ceases to be billable are each charged in full, and there is no other minimum charge. Where the Portal states that per-second metering applies, each billable minute is instead charged in proportion to the number of seconds during which the Instance was billable, rounded down in your favour, and a full minute is charged as above.

An Instance is in a billable state while it is running and while it is in rescue mode. While it is stopped at your request, it remains billable only where the Portal indicates that the GPU stays reserved for you while stopped. Billing stops as soon as the Instance begins termination, is preempted, or is stopped by the Provider without your request, and is suspended while the Instance is suspended for the investigation of an abuse report that is not upheld against you.

Spot Orders, Reservations and Hour Packs are charged as described in Sections 10, 11 and 12.

Amounts are calculated internally in millionths of the currency unit and are rounded to the nearest cent (half up) on invoices and statements. We issue a receipt for each top-up, on which no Taxes are charged, and an invoice for each completed Instance, closed Reservation, Hour Pack purchase and Reservation transfer, as described in the Tax Policy. Invoices and statements are made available in the Portal.

Our metering records are the authoritative record of your usage and charges and will prevail in the absence of manifest error. Usage details are available in the Portal. If you believe that a charge is incorrect, you must notify us at [email protected] within 30 days of the date of the charge, giving the details of the disputed item. We will investigate in good faith and correct any error we confirm by crediting your Prepaid Balance or, where the Refund Policy provides for it, by a refund. If you do not dispute a charge within that period, the charge is deemed accepted, except in the case of fraud or manifest error and without prejudice to any non-waivable right you may have as a Consumer.

9. Taxes

Unless expressly stated otherwise, all prices and fees exclude value added tax, goods and services tax, sales and use tax and any other similar taxes, duties or levies (“Taxes”). You are responsible for all Taxes applicable to your purchases, other than taxes on our net income. A top-up of your Prepaid Balance is a prepayment on which no Taxes are charged. Where we are required by law to collect Taxes, we add them to the amount charged when your Prepaid Balance is used to pay for Services and show them on your invoice; any hold on your Prepaid Balance includes the applicable Taxes.

The tax treatment of each purchase depends on your location and on your status as a Business Customer or an Individual Customer, as determined under the Tax Policy (everxcloud.ai/legal/taxes). Where you are a Business Customer that provides a valid tax identification number that we are able to validate, supplies may be invoiced without the tax concerned under the reverse-charge mechanism where the law allows it, in which case you must account for that tax yourself.

Your status as a Business Customer and the information you give us about your location and tax identification number are your own declarations, on which we rely. You must keep them accurate and up to date. You will indemnify us against any Taxes, interest and penalties that we incur as a result of any inaccurate or incomplete declaration or information you provide. If you are required by law to withhold any Tax from a payment to us, you must gross up the payment so that we receive the full amount we would have received without the withholding, except where the Tax Policy provides otherwise. The Tax Policy prevails over this Section in the event of any inconsistency.

10. Spot Order Book

The Spot Order Book allows you to place a buy order for a number of hours of use of a defined Instance configuration (GPU model, number of GPUs and region) at a maximum hourly price that you choose (the “limit price”), for a validity period that you choose within the limits displayed in the Portal (by default, up to seven days).

A Spot Order is a firm offer by you to purchase the stated hours of compute at a price per hour not exceeding your limit price. It remains open, and may be matched at any time without further confirmation from you, until it is matched, cancelled or expires. When you place a Spot Order, we place a hold on your Prepaid Balance for the maximum amount the Order could cost, including fees and Taxes. If your available balance is insufficient, the Spot Order cannot be placed.

When the Spot Order Book matches your Spot Order with available capacity at a price equal to or lower than your limit price, an Order is formed at the matched price and the hold is reduced to the amount corresponding to that price. Unless the Portal states otherwise, a Spot Order is executed as a whole, on a single machine, and is not partially filled. We then provision an Instance for you, which runs for the ordered number of hours from its delivery and is then terminated automatically; we notify you approximately 15 minutes before the end of the term. Usage is metered and charged under Section 8 at the matched price and is paid from the held funds. You may terminate the Instance earlier; you then pay only the usage metered and the remainder of the hold is released. If we are unable to deliver the Instance, the match is voided, no charge is made for the undelivered capacity, the hold is restored, and your Spot Order may return to the Spot Order Book until it expires.

You may cancel or modify an open Spot Order at any time before it is matched, without charge; the hold is released or adjusted accordingly. Spot Orders that expire unmatched are closed and their hold is released. We may cancel open Spot Orders, with notice to you, for operational, security or legal reasons, or if we suspend or discontinue the Spot Order Book, in which case the hold is released.

The Spot Order Book is solely a mechanism for ordering GPU compute services from EverXCloud for your own use. In particular:

• every matched Spot Order is settled only by delivery of compute services to you; there is no cash settlement and no payment of any price difference;
• a Spot Order and the resulting Instance are personal to your account and may not be sold, assigned, transferred, pledged or offered to any other person, on the Spot Order Book or elsewhere;
• there is no secondary market, no short selling, no leverage, no margin and no derivative of any kind;
• the Spot Order Book is not a securities, commodities or derivatives exchange or trading platform, and no Spot Order, balance, credit or hour on our platform is an investment, security, commodity or financial instrument;
• market data shown in the Spot Order Book is for information only, may include indicative or reference prices, and is not a representation that capacity will be available at any price.

Interruptible Instances, whether ordered on demand or through the Spot Order Book, are subject to Section 16.

11. Forward Reservations

A Reservation allows you to reserve a defined Instance configuration for a defined future time window at a price fixed when you confirm it. Before you confirm, the Portal displays the configuration, the start and end of the window, the number of reserved hours, the total reservation price, the applicable Taxes, the deadline for free cancellation and the late cancellation fee. Reservations are subject to the minimum lead time, maximum horizon, minimum and maximum duration and other limits displayed in the Portal.

When you confirm a Reservation, we place a hold on your Prepaid Balance equal to the total reservation price including Taxes. The reserved capacity is then committed to you for the window.

Free cancellation. You may cancel a Reservation free of charge at any time before the free cancellation deadline displayed when you confirmed it, which is 48 hours before the start of the window unless a different deadline was displayed. The hold is then released in full.

Late cancellation. If you cancel after the free cancellation deadline, and before the Instance has been delivered, you pay a late cancellation fee equal to the percentage of the total reservation price (excluding Taxes) displayed when you confirmed the Reservation, which is 50% unless a lower percentage was displayed, plus any applicable Taxes; the rest of the hold is released. The parties agree that the fee is a reasonable pre-estimate of the loss that late cancellation causes us, because we commit, and in many cases pay for, the reserved capacity for your window and are unable, at short notice, to resell it reliably to other customers; that loss is difficult to quantify precisely at the time of contracting; and the fee never exceeds 50% of the reservation price.

Delivery and payment. We make the Instance available to you at the start of the window. Once the Instance has been delivered, the total reservation price is due for the reserved hours, whether or not you use them, and you may not cancel the remaining hours for a refund; any usage already metered for the Reservation is deducted from the amount charged at settlement. If you cancel after delivery, the Instance is terminated and the total reservation price remains due.

Non-delivery. If we do not deliver the Instance within the grace period displayed in the Portal (15 minutes after the start of the window unless otherwise displayed) for reasons attributable to us or a Provider, nothing is due for the Reservation, the hold is released in full, and any late cancellation fee does not apply. If the Instance is delivered late or fails during the window for reasons attributable to us or a Provider, you pay only for the usage actually metered and not the full reservation price. These remedies are in addition to any service credits available under the Service Level Agreement. We may deliver the Reservation on substitute hardware of equivalent or better specifications.

Reservation transfers. Where the Portal offers it, a verified Business Customer may list a confirmed Reservation that has not started for transfer to another customer at an asking price, through the Portal only. If another customer accepts the listing, the original Reservation is closed without charge to the transferor, a new Reservation on the same terms is confirmed for the transferee, the transferee pays the asking price plus the applicable Taxes, and the transferor receives the asking price less our commission and its Taxes, credited to its Prepaid Balance. Individual Customers may not list Reservations for transfer. A Reservation may not be transferred in any other way, and the restrictions in Section 10 on cash settlement, leverage and financial products apply equally to Reservations.

We may cancel a Reservation for operational, security or legal reasons, without any fee to you; in that case the hold is released in full and, if the Instance was already delivered, you pay only for the usage metered.

12. Hour Packs

An Hour Pack is a prepaid entitlement to a stated number of hours of use of a stated Instance configuration (GPU model, number of GPUs and, where stated, region). Before purchase, the Portal displays the number of hours, the eligible configuration, the price, the applicable Taxes, the validity period and any limit on the number of Hour Packs per account. Hour Packs are paid from your Prepaid Balance at the time of purchase.

The usage of an eligible Instance is covered by your Hour Packs before it is charged to your Prepaid Balance, starting with the Hour Pack that expires first. Coverage is measured by the second. Usage of Instances that do not match the eligible configuration is charged to your Prepaid Balance in the normal way.

Each Hour Pack is valid for the period stated at purchase (365 days unless otherwise stated), starting on the date of purchase. Hours not used by the end of the validity period expire and are lost. We notify you by email or in the Portal approximately 30 days and 7 days before an Hour Pack expires.

Hour Packs are personal to your account and are not transferable, have no cash value and cannot be exchanged for another Service. Except as provided in the Refund Policy, in Section 5 (discontinuation) or in Section 33 for Consumers, or as required by applicable law, Hour Packs are non-refundable once purchased. We may revoke an Hour Pack only in the case of fraud or as otherwise provided in these Terms, in which case the Refund Policy applies to any amount you paid for it.

13. Promotional Credits, credit codes and referral program

We may, at our discretion, grant Promotional Credits, including through credit codes, welcome offers, referral rewards, goodwill gestures or service credits. Promotional Credits are subject to these Terms and to any conditions stated when they are offered, including any eligibility criteria, applicable Services, currency and expiry date.

Promotional Credits can be used only to pay for Services. They have no cash value; they are not refundable, redeemable, withdrawable or exchangeable for money; they are not transferable or saleable; they do not count towards any refund of Prepaid Balance; and they expire on the date stated when they are granted, if any. Each credit code may be redeemed only once per account and per user, only within its validity period and only by eligible accounts; codes cannot be combined unless we state otherwise. A credit code may not be redeemed by the person who created it or obtained by automated means.

Our referral program, when we offer it, is governed by these Terms and by the program rules displayed in the Portal. A reward is earned only when a new customer opens an account through your referral link and makes a first qualifying top-up that is not refunded or disputed. Rewards are granted as Promotional Credits only, may be released after a holding period and are subject to the limits stated in the program rules. Referrals between linked persons or accounts (such as the same person, organisation, member, payment card or business email domain) are not eligible. You must not promote your link by unsolicited messages, misleading statements, use of our trademarks or any deceptive practice, and you must disclose your reward where the law requires it.

We may refuse, suspend or withdraw any Promotional Credit or referral reward, and reverse any Promotional Credit already used, if we reasonably believe that it was obtained by fraud, abuse, multiple or linked accounts, self-referral, error, or in breach of these Terms or the applicable conditions, or if the qualifying payment is refunded or charged back. A reversal may cause your Prepaid Balance to become negative, in which case Section 7 applies. We may modify or end any promotion or the referral program at any time with prospective effect; rewards already validly earned before the change remain available under their original conditions.

14. Customer Data

As between you and us, you retain all rights, title and interest in and to your Customer Data. You grant us and our Providers a worldwide, non-exclusive, royalty-free licence to host, copy, store, transmit, process and display your Customer Data solely to the extent necessary to provide, secure and support the Services, to comply with law and to enforce these Terms. This licence ends when your Customer Data is deleted from the Services, except for copies that we are required by law to retain.

You are solely responsible for your Customer Data, including its legality, its accuracy, your rights to use it, and its compliance with the Acceptable Use Policy, and for obtaining all consents and licences required for its processing through the Services.

Neither we nor our Providers access the content of your workloads or Customer Data, except (a) as necessary to provide, maintain or support the Services, including at your request; (b) as necessary to investigate and prevent security incidents, fraud, abuse or violations of these Terms; or (c) as required by applicable law or a binding order of a competent authority, in which case, where legally permitted, we will notify you. We collect technical and operational data (such as resource utilisation, telemetry and logs relating to the operation of the Services) to operate, secure, bill and improve the Services.

The Services do not include backups unless a backup service is expressly offered and ordered. You are responsible for maintaining independent backup copies of all Customer Data. Data stored on the local disk of an Instance is temporary: it is permanently deleted when the Instance is terminated, expires or is preempted, and it may be lost if the Instance fails. EverXCloud does not provide persistent storage: data that you wish to keep beyond the life of an Instance must be copied outside the Services before the Instance is destroyed. Once deleted, Customer Data cannot be recovered. Hardware used by us and our Providers is subject to secure erasure or reprovisioning practices designed to prevent the recovery of your data by another customer.

To the extent your Customer Data includes personal data, our Privacy Policy and, for Business Customers acting as controllers, the Data Processing Addendum describe our respective roles and obligations. The Data Processing Addendum forms part of these Terms for Business Customers.

15. Acceptable use

You must use the Services only for lawful purposes and in compliance with these Terms and the Acceptable Use Policy (everxcloud.ai/legal/aup), which is incorporated into these Terms by reference. You are responsible for ensuring that your members, your end users and anyone who accesses the Services through your account or your applications comply with the Acceptable Use Policy.

Without limiting the Acceptable Use Policy, you must not: resell, sublicense or provide the Services to third parties as a standalone compute offering without our written consent; use the Services to mine cryptocurrency unless expressly permitted for the offer concerned; attempt to access other customers' data or the host systems of us or our Providers; circumvent usage limits, spending caps, verification, geographic restrictions or security controls; interfere with or overload the Services; or reverse engineer the Services except to the extent such restriction is prohibited by law.

We may update the Acceptable Use Policy to address new risks, legal requirements or abuse patterns. Changes that materially restrict your existing lawful use will be notified in accordance with Section 26.

16. Service levels and Interruptible Instances

The availability commitments for the Services, and the service credits available if we fail to meet them, are set out in the Service Level Agreement (everxcloud.ai/legal/sla). Except where Section 11 provides otherwise for Reservations, the service credits described in the Service Level Agreement are your sole and exclusive remedy for any unavailability, interruption or degradation of the Services, to the extent permitted by applicable law and without prejudice to Section 33 for Consumers.

Interruptible Instances are offered at a reduced price because they may be stopped, preempted or reclaimed at any time, with or without notice, including when the capacity is needed for other uses. Interruptible Instances are excluded from the Service Level Agreement and from any availability commitment. When an Interruptible Instance is preempted, billing stops at the preemption and data on its local disk is lost. You must design your workloads accordingly, including by saving checkpoints to storage outside the Services.

We may carry out planned maintenance of the Services and will use reasonable efforts to give advance notice of planned maintenance that is expected to interrupt running Instances. We may perform emergency maintenance without notice where necessary to protect the security or integrity of the Services.

17. Suspension

We may suspend all or part of your access to the Services, including by stopping or isolating Instances, freezing your account or revoking API keys, if:

• your available Prepaid Balance is insufficient, a payment is reversed or charged back, or a negative balance is not settled;
• we reasonably believe that you, or an Instance or Customer Data under your account, breach the Acceptable Use Policy or these Terms, or create a risk to the security, integrity or availability of the Services, of other customers, of our Providers or of third parties;
• you fail to complete identity, business or end-use verification that we have requested, or we reasonably suspect fraud, account sharing in breach of these Terms or the use of false information;
• suspension is required to comply with law, sanctions or export controls, or with a request from a competent authority; or
• your account shows signs of compromise.

Where reasonably practicable and lawful, we will notify you before or promptly after the suspension, state the reason, and give you an opportunity to remedy the cause or to contest the suspension by writing to [email protected]. We will limit the suspension to what is reasonably necessary and lift it promptly once the cause has been remedied. While an Instance is suspended for the investigation of an abuse report, it is not billed. Suspension does not relieve you of your obligation to pay for Services used before the suspension. If a suspension continues for more than 30 days for a reason other than your breach of these Terms, you may close your account and obtain a refund of your unused Prepaid Balance in accordance with the Refund Policy.

18. Intellectual property and feedback

The Services, the Portal, the API, our documentation, software, templates, brands and all related intellectual property rights are and remain the exclusive property of EverXCloud or its licensors. Subject to these Terms and to the payment of applicable charges, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during the term of these Terms to access and use the Services for your own internal purposes or, for Business Customers, to build and operate your own products and services on top of the Services in accordance with the Acceptable Use Policy. All rights not expressly granted are reserved.

You may not use our name, logos or trademarks without our prior written consent, except to state truthfully that your application runs on EverXCloud in accordance with any brand guidelines we publish.

If you provide us with suggestions, ideas or other feedback about the Services, you grant us a perpetual, irrevocable, worldwide, royalty-free licence to use and exploit that feedback for any purpose without obligation to you. Feedback does not include your Customer Data or your Confidential Information.

You own the outputs, models, results and other materials that you generate with the Services from your Customer Data, as between you and us, and we claim no rights in them.

19. Confidentiality

This Section applies between EverXCloud and Business Customers. “Confidential Information” means non-public information disclosed by one party to the other in connection with the Services that is marked as confidential or that a reasonable person would understand to be confidential, including Customer Data, non-public pricing, security information and Provider information. It excludes information that is or becomes public without breach of these Terms, was lawfully known to the recipient before disclosure, is lawfully received from a third party without a duty of confidentiality, or is independently developed.

Each party will use the other's Confidential Information only for the purposes of these Terms, protect it with no less than reasonable care, and disclose it only to its employees, contractors, Providers and advisers who need to know it and are bound by equivalent confidentiality obligations, or where required by law or a competent authority after prompt notice where legally permitted. These obligations continue for three years after the end of these Terms and, for trade secrets and Customer Data, for as long as they remain confidential.

We treat the Customer Data and account information of Individual Customers in accordance with Section 14 and our Privacy Policy.

20. Third-party software and images

The Services may give you access to operating system images, container images, drivers, frameworks, models, templates and other software or content provided by third parties (“Third-Party Software”), including open-source software. Third-Party Software is provided under the licence terms of its owner, which you must comply with and which govern your use of it. We do not warrant Third-Party Software and are not responsible for its availability, security, licensing or performance, but we will use reasonable efforts to keep the templates we publish up to date.

You are responsible for any software, image or model that you deploy on the Services, including obtaining the necessary licences, applying security updates and complying with the terms of any third-party service you connect to the Services.

21. Export controls and sanctions

The Services, including access to advanced GPUs, are subject to the export control and economic sanctions laws of the United States and of other applicable jurisdictions, including the Export Administration Regulations and the regulations administered by the Office of Foreign Assets Control.

You represent and warrant, and undertake for the duration of these Terms, that: (a) you are not, and are not owned 50% or more or controlled by, or acting on behalf of, any person listed on, or targeted by, a sanctions or restricted-party list maintained by the United States, the United Nations, the European Union, the United Kingdom or any other applicable authority; (b) you are not located, organised or ordinarily resident in, and will not access or use the Services from or for the benefit of any person in, a country or territory subject to comprehensive sanctions; (c) you will not use the Services, or permit them to be used, for any end use prohibited by export control laws, including the design, development, production or use of nuclear, chemical or biological weapons, missiles or unmanned systems for such weapons, or for military end uses or military end users where prohibited; and (d) the end-use information you provide to us is true and complete.

You must not use VPNs, proxies or other means to circumvent our geographic restrictions or screening, and you must inform us immediately of any change that makes these representations untrue. We screen customers and transactions and may refuse, suspend or terminate any account, Order or transaction, or block funds, where we reasonably believe this is necessary to comply with export control or sanctions laws. Where the law permits, we will refund the unused Prepaid Balance of a terminated account under the Refund Policy; where the law requires funds to be blocked or reported, we will act as it requires.

22. Warranties and disclaimers

We will provide the Services with reasonable skill and care and substantially in accordance with the description displayed for each Order. Each party represents that it has the power to enter into these Terms.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND IN THE SERVICE LEVEL AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE AND OUR PROVIDERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUIET ENJOYMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT CAPACITY WILL BE AVAILABLE AT ANY GIVEN TIME OR PRICE, THAT DATA WILL NOT BE LOST, OR THAT ANY WORKLOAD, MODEL OR COMPUTATION WILL ACHIEVE ANY PARTICULAR RESULT, PERFORMANCE OR ACCURACY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. IF YOU ARE A CONSUMER, THIS SECTION DOES NOT AFFECT YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT, INCLUDING THE RIGHTS DESCRIBED IN SECTION 33.

23. Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EVERXCLOUD NOR ITS PROVIDERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, COST OF RE-RUNNING COMPUTATIONS OR TRAINING JOBS, OR COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF EVERXCLOUD AND ITS PROVIDERS, AFFILIATES, OFFICERS, EMPLOYEES AND AGENTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND THE SERVICES WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS YOU PAID TO US FOR THE SERVICES (EXCLUDING TAXES AND PROMOTIONAL CREDITS) IN THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM, AND (B) ONE HUNDRED US DOLLARS (USD 100).

The exclusions and limitations in this Section do not apply to: (a) liability for death or personal injury caused by negligence; (b) liability for fraud or fraudulent misrepresentation; (c) liability for gross negligence or wilful misconduct, where such liability cannot lawfully be limited; (d) your obligation to pay amounts due for the Services; (e) your liability under Section 24 or for breach of Section 15 or Section 21; or (f) any other liability that cannot be excluded or limited under applicable law. The limitations apply even if a limited remedy fails of its essential purpose. They reflect the allocation of risk between the parties and the prices of the Services, which would be higher without them.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. If you are a Consumer, Section 33 applies and prevails over this Section.

24. Indemnification

If you are a Business Customer, you will defend, indemnify and hold harmless EverXCloud, its Providers, affiliates, officers, employees and agents from and against any claim, demand, action or proceeding brought by a third party or a public authority, and all resulting losses, damages, fines, penalties, costs and reasonable attorneys' fees, arising out of or relating to: (a) your Customer Data, including any claim that it infringes or misappropriates any right of a third party or violates any law; (b) your use of the Services, or the use of the Services through your account, in breach of these Terms, the Acceptable Use Policy or applicable law; (c) your breach of Section 21; or (d) any inaccurate declaration about your status, location or tax identification number.

If you are an Individual Customer, you will indemnify us against such third-party claims and resulting losses only to the extent they are caused by your breach of these Terms or of applicable law, and only to the extent permitted by the law applicable to you.

We will notify you promptly of any claim for which we seek indemnification, allow you to control its defence and settlement (provided that you may not settle any claim that imposes any obligation or admission on us without our prior written consent, not to be unreasonably withheld), and provide reasonable cooperation at your expense. We may participate in the defence with counsel of our choice at our own expense.

25. Term, closure and termination

These Terms start when you first accept them and continue until your account is closed or terminated.

You may stop using the Services and close your account at any time from the Portal or by writing to [email protected]. Before closing your account, you should terminate your Instances, download any Customer Data you wish to keep and request the refund of any unused paid Prepaid Balance in accordance with the Refund Policy. Charges incurred up to closure remain payable. Confirmed Reservations, open Spot Orders and Hour Packs are treated at closure as provided in Sections 10, 11 and 12 and in the Refund Policy.

We may terminate these Terms or close your account: (a) for convenience, on at least 30 days' notice; (b) immediately, by notice, if you materially breach these Terms or the Acceptable Use Policy and, where the breach is capable of remedy, fail to remedy it within 10 days of our notice; (c) immediately, by notice, if required by law, sanctions or a competent authority, or in the case of fraud or serious or repeated abuse; or (d) if your account has had no activity and no positive Prepaid Balance for 24 consecutive months, on at least 30 days' notice. If we terminate under (a) or (d), or for any reason that is not your breach, we will refund your unused paid Prepaid Balance and any prepaid amounts for Services that will not be delivered, in accordance with the Refund Policy.

On termination or closure, your right to use the Services ends, your API keys are revoked, and we may terminate any remaining Instances and delete any remaining Customer Data after a period of at least seven days, unless the law requires otherwise or we terminate for a serious breach or a legal requirement that prevents such a period. We will retain account, billing and transaction records as required by law and as described in the Privacy Policy.

Sections 2, 7 (as regards amounts due and negative balances), 8 (as regards charges incurred), 9, 13 (as regards reversals), 14 (as regards the licence for retained copies and deletion), 18, 19, 21, 22, 23, 24, 25, 27, 28, 30, 31, 32 and any other provision which by its nature should survive, survive termination.

26. Changes to the Services and to these Terms

We may change these Terms and the Policies from time to time, for example to reflect changes in the Services, in our business, in the law or in security requirements. Each version bears a version number and an effective date, and previous versions are available on request.

If a change is material and adverse to you, we will notify you by email to the address associated with your account and by a notice in the Portal at least 30 days before it takes effect, except where a shorter period is required by law, by a competent authority or to address an immediate security risk, in which case we will give as much notice as is reasonably practicable. Other changes, such as clarifications, the description of new features or changes in your favour, take effect when published.

Where we require it, you will be asked to accept the new version before your next top-up, launch or purchase. If you do not agree to a change, you may close your account before the change takes effect, and we will refund your unused paid Prepaid Balance, together with the unused portion of any Hour Pack and the price of any Reservation that has not started, in accordance with the Refund Policy and without any late cancellation fee. If you continue to use the Services after the change takes effect, or accept the new version, the new version applies to you. Changes do not apply retroactively and do not alter the price or terms of an Order already formed, unless the change is required by law.

27. Governing law

These Terms, and any dispute or claim arising out of or in connection with them or the Services, including non-contractual disputes or claims, are governed by the laws of the State of Delaware, United States, without regard to its conflict-of-laws rules, and, to the extent applicable, by the federal laws of the United States, including the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

If you are a Consumer, this choice of law does not deprive you of the protection afforded to you by the mandatory provisions of the law of the country or state in which you habitually reside.

28. Dispute resolution

Informal resolution. Before starting any arbitration or court proceeding, the party raising a dispute must send the other a written notice describing the dispute and the relief sought: notices to us must be sent to [email protected] and to 8 The Green, Suite #19720, Dover, DE 19901, United States; notices to you will be sent to the email address associated with your account. The parties will try in good faith to resolve the dispute informally for 60 days from receipt of the notice. Limitation periods are suspended during that period to the extent permitted by law.

PLEASE READ THE FOLLOWING CAREFULLY. IF YOU ARE LOCATED IN THE UNITED STATES, IT REQUIRES YOU AND US TO RESOLVE DISPUTES BY BINDING INDIVIDUAL ARBITRATION, AND IT WAIVES THE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION.

Arbitration for Customers in the United States. If you reside in the United States (for Individual Customers) or have your principal place of business in the United States (for Business Customers), any dispute, claim or controversy arising out of or relating to these Terms or the Services that is not resolved informally will be resolved exclusively by binding individual arbitration administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules for Individual Customers and under its Commercial Arbitration Rules for Business Customers, as in force when the arbitration is filed, by a single arbitrator. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. The arbitrator has exclusive authority to decide all issues, including the scope, enforceability and arbitrability of this Section, except as provided below. For Individual Customers, the arbitration will take place in the county where you reside or, at your choice, by video conference or on written submissions; payment of filing, administration and arbitrator fees will be governed by the AAA rules, and we will pay any portion of such fees that exceeds the filing fee you would pay to bring a claim in court. For Business Customers, the seat of arbitration is Wilmington, Delaware. Judgment on the award may be entered in any court of competent jurisdiction.

Class action waiver. You and we agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated or representative proceeding. The arbitrator may not consolidate claims of more than one person and may award relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this class action waiver is found unenforceable with respect to any claim or any request for public injunctive relief, that claim or request (and only that claim or request) will be severed and decided by a court under the following paragraph after the arbitration of all other claims, and this Section will otherwise remain in force.

Mass filings. If 25 or more similar demands for arbitration are filed against us by or with the assistance of the same law firm or coordinated group of claimants, they will be administered under the AAA's mass arbitration procedures in force at that time.

Exceptions. Either party may (a) bring an individual claim in a small claims court of competent jurisdiction, provided the claim remains in that court and is pursued on an individual basis; and (b) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement or misappropriation of its intellectual property rights or unauthorised access to or misuse of the Services.

Right to opt out. Individual Customers and Business Customers in the United States may opt out of this agreement to arbitrate by sending, within 30 days after first accepting these Terms, an email to [email protected] with the subject “Arbitration opt-out”, stating your name, the email address of your account and your decision to opt out. Opting out does not affect any other provision of these Terms. If you opt out, or if this agreement to arbitrate does not apply or is held unenforceable, disputes will be resolved exclusively in the state or federal courts located in the State of Delaware, except that Individual Customers may also bring proceedings in the courts of the county in which they reside.

Business Customers outside the United States. If you are a Business Customer whose principal place of business is outside the United States, any dispute arising out of or in connection with these Terms or the Services will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and each party irrevocably submits to the personal jurisdiction of those courts and waives any objection to venue there. We may nevertheless seek injunctive relief or enforce payment obligations in any court of competent jurisdiction.

Jury trial waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH BUSINESS CUSTOMER AND EVERXCLOUD WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES.

Consumers in the European Union, the European Economic Area and the United Kingdom. This arbitration agreement and the class action waiver do not apply to Consumers who habitually reside in the European Union, the European Economic Area or the United Kingdom, who are governed by Section 33.

Consumers in other countries. If you are a Consumer residing outside the United States, the European Union, the European Economic Area and the United Kingdom, disputes will be resolved by the state and federal courts located in the State of Delaware, without prejudice to any mandatory right under the law of your country of residence to bring proceedings before, or be sued only in, the courts of that country.

29. Force majeure

Neither party will be liable for any failure or delay in performing its obligations (other than payment obligations) to the extent caused by events beyond its reasonable control, including natural disasters, epidemics, war, terrorism, civil unrest, acts of government, sanctions or embargoes imposed after the Order, labour disputes not involving the affected party's own employees, widespread failures of electricity, internet or telecommunications networks, and large-scale cyber-attacks that could not reasonably have been prevented (a “Force Majeure Event”).

The failure of a Provider is a Force Majeure Event only to the extent that it is itself caused by a Force Majeure Event. The affected party must notify the other promptly and use reasonable efforts to mitigate the effects of the Force Majeure Event. Charges for Services that are not delivered because of a Force Majeure Event are not payable, and any amount held or prepaid for them will be released or refunded in accordance with the Refund Policy. If a Force Majeure Event prevents the performance of an Order for more than 30 days, either party may terminate that Order by notice.

30. Notices and electronic communications

You agree that we may provide notices, disclosures, invoices and other communications to you electronically, by email to the address associated with your account, by notices in the Portal or, for operational events, by webhook. Electronic communications satisfy any legal requirement that a communication be in writing. Notices to you are deemed received when sent by email or posted in the Portal, unless we receive a delivery failure notice. You must keep your email address current and ensure that our messages are not blocked.

Legal notices to us must be sent by email to [email protected] and, for notices of breach, termination or dispute, also by post or courier to EverXCloud Inc., 8 The Green, Suite #19720, Dover, DE 19901, United States. Notices to us are effective when received. You agree that your acceptance of these Terms and of any Order by electronic means has the same legal effect as a handwritten signature.

31. Entire agreement, order of precedence and language

These Terms, together with the Policies and the information displayed for each Order, constitute the entire agreement between you and us regarding the Services and supersede all prior agreements, proposals and representations relating to the Services. Any terms in a purchase order or other document issued by you are excluded, even if we accept or acknowledge that document. A separate written agreement signed by an authorised officer of EverXCloud prevails over these Terms to the extent it expressly says so.

In the event of any conflict, the following order of precedence applies: (a) the Additional Terms for Consumers in Sections 33 and 34, for the Consumers to whom they apply; (b) the Policy that specifically governs the subject matter concerned (for example, the Refund Policy for refunds, the Tax Policy for taxes, the Service Level Agreement for service credits and the Data Processing Addendum for the processing of personal data); (c) the information displayed for the specific Order; and (d) the remaining provisions of these Terms.

These Terms are written in English. We may provide translations for convenience. In the event of any inconsistency between the English version and a translation, the English version prevails, except where the law of a Consumer's country of residence requires otherwise.

32. General provisions

Assignment. You may not assign or transfer these Terms or any right or obligation under them, in whole or in part, without our prior written consent. We may assign or transfer these Terms to an affiliate or to a successor in connection with a merger, acquisition, reorganisation or sale of all or substantially all of the relevant assets, provided that, for Consumers, this does not reduce the guarantees provided to you. Any purported assignment in breach of this paragraph is void.

Subcontracting. We may use subcontractors, including Providers, to perform our obligations, and we remain responsible for their performance in accordance with these Terms.

Independent parties. The parties are independent contractors. No third party, including any Provider, has any right to enforce any term of these Terms, except our affiliates and Providers to the extent Sections 22, 23 and 24 expressly benefit them.

Severability. If any provision of these Terms is held invalid or unenforceable, it will be enforced to the maximum extent permissible and modified to the minimum extent necessary to make it enforceable, and the remaining provisions remain in full force and effect.

No waiver. A failure or delay by either party in exercising any right does not operate as a waiver of that right, and a single or partial exercise of any right does not preclude its further exercise.

Contact. Questions about these Terms may be sent to [email protected].

33. Additional Terms for Consumers in the EU, EEA and UK

This Section applies to Consumers who habitually reside in a Member State of the European Union, a State of the European Economic Area or the United Kingdom. It prevails over any other provision of these Terms and the Policies that is inconsistent with it. Nothing in these Terms limits the rights you have under the mandatory consumer protection law of your country of residence.

Prices and information before purchase. Prices displayed on the website and in the Portal may exclude taxes, as stated in Section 8. Before you confirm payment of any Order, the Portal shows you the total price including all applicable taxes. A top-up is a prepayment on which no tax is charged. The confirmation step states clearly that the order implies an obligation to pay. We confirm each contract on a durable medium (by email or in a downloadable document) within a reasonable time and at the latest before performance begins.

Right of withdrawal. You have the right to withdraw from each contract for Services (including an Order, a Reservation, an Hour Pack purchase and a top-up of your Prepaid Balance) within 14 days, without giving any reason. The withdrawal period expires 14 days after the day on which the contract is concluded. To exercise the right of withdrawal, you must inform us, EverXCloud Inc., 8 The Green, Suite #19720, Dover, DE 19901, United States, email [email protected], of your decision to withdraw by an unequivocal statement, for example an email. You may use the model withdrawal form below, but it is not obligatory. To meet the withdrawal deadline, it is sufficient that you send your communication before the withdrawal period has expired.

Effects of withdrawal. If you withdraw, we will reimburse all payments received from you for the contract concerned without undue delay and in any event not later than 14 days from the day on which we are informed of your decision, using the same means of payment as you used for the initial transaction unless you have expressly agreed otherwise; you will not incur any fees as a result of the reimbursement. For a top-up, the reimbursement is limited to the part of the Prepaid Balance that has not been used for Services; your rights in respect of Services already ordered with it are governed by the rules below.

Immediate performance and loss of the right of withdrawal. Most Services, such as Instances, begin immediately. Before your first top-up, launch, Spot Order, Reservation or Hour Pack purchase, the Portal therefore asks you to tick a separate box, which is not pre-ticked and is distinct from your acceptance of these Terms, by which you request that we start providing the Services immediately, during the 14-day withdrawal period, and acknowledge that you will lose your right of withdrawal once the Services have been fully performed and that, if you withdraw before then, you will pay for the Services provided up to that point. We record the date and time of your request and confirm it to you by email. Your request applies to the Services you order from your account after you have made it; until you make it, we do not accept your top-ups or Orders. Once you have made that request and acknowledgement, you lose your right of withdrawal for a Service once it has been fully performed (Article 16(a) of Directive 2011/83/EU; regulation 36 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 in the United Kingdom). Until then, your right of withdrawal is not lost: if you withdraw from a Service after requesting that performance begins during the withdrawal period but before it has been fully performed, you pay an amount proportionate to what has been provided until you inform us of your withdrawal, in comparison with the full coverage of the contract, and we reimburse the rest. In particular:

• for an Instance or a matched Spot Order, you pay for the usage metered until your withdrawal, and the unused balance or hold is released or reimbursed;
• for an Hour Pack, you are reimbursed for the hours not used at the time of your withdrawal, in proportion to the price paid;
• for a Reservation whose window has not started, you may withdraw within the withdrawal period without paying any late cancellation fee, and the hold is released in full; once the window has started at your request, you pay for the part of the Reservation provided until your withdrawal.

Model withdrawal form. (Complete and return this form only if you wish to withdraw from the contract.)

• To: EverXCloud Inc., 8 The Green, Suite #19720, Dover, DE 19901, United States, email [email protected]
• I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service (*): ...
• Ordered on (*) / received on (*): ...
• Name of consumer(s): ...
• Email address of the account: ...
• Address of consumer(s): ...
• Signature of consumer(s) (only if this form is notified on paper): ...
• Date: ...
• (*) Delete as appropriate.

Conformity of the Services. We are legally responsible for providing Services that conform to the contract, including to the description we give and to the quality and performance normally expected of comparable services. If a Service does not conform, you are entitled under the law of your country of residence to have it brought into conformity within a reasonable time and free of charge, or, where this is impossible, disproportionate, not done within a reasonable time or the lack of conformity is serious, to a proportionate price reduction or to terminate the contract and obtain a refund of the price paid for the non-conforming part. In the United Kingdom, your rights include those under the Consumer Rights Act 2015. These legal rights are in addition to, and are not limited by, the Service Level Agreement or Section 22.

Liability. Sections 22, 23 and 24 apply to you only to the extent permitted by the law of your country of residence. We do not exclude or limit our liability for death or personal injury caused by our negligence, for fraud or fraudulent misrepresentation, for intentional misconduct or gross negligence, for breach of your statutory rights regarding the conformity of the Services, or for any other liability that cannot be excluded or limited by law. We are responsible for loss or damage that is a foreseeable result of our breach of these Terms or our failure to use reasonable care and skill, but not for unforeseeable loss or for business losses. In assessing our liability for loss of Customer Data, account may be taken of whether you kept a backup.

Late cancellation fees and charges. Any fee or charge provided for in these Terms, including the late cancellation fee for Reservations and the dispute handling fee, will not exceed the loss we actually and reasonably suffer, and does not apply where you exercise your right of withdrawal.

Changes. Section 26 applies to you, and we will only make changes for valid reasons stated in Section 26. We will not change the main characteristics or the price of a Service you have already ordered and paid for.

Suspension and termination. We will only suspend or terminate your account without notice where this is justified by a serious reason, such as a serious breach, a legal requirement or a security risk. In all other cases Section 17 and Section 25 apply, including the notice periods stated there.

Courts and dispute resolution. Section 28 (other than its first paragraph on informal resolution, which is optional for you) does not apply to you. You may bring proceedings in the courts of the country in which you habitually reside or in the courts of the State of Delaware, and we may bring proceedings against you only in the courts of the country in which you habitually reside. If you are a Consumer in the United Kingdom, you may bring proceedings in England and Wales, in Scotland or in Northern Ireland, depending on where you live. Nothing in these Terms requires you to submit to arbitration.

Alternative dispute resolution. You can contact us at [email protected] to resolve any complaint. We are not obliged to, and do not currently, participate in a dispute resolution procedure before a consumer arbitration or alternative dispute resolution body. If you reside in the European Union, the European Consumer Centre of your country can provide information and assistance in cross-border disputes.

34. Additional Terms for US State Residents

This Section applies to Individual Customers who reside in the United States. Where the law of your state of residence grants you rights that cannot be waived by contract, those rights prevail over any inconsistent provision of these Terms.

California residents. In accordance with California Civil Code Section 1789.3, the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210. You may contact us about the Services, our charges or a complaint at [email protected] or at 8 The Green, Suite #19720, Dover, DE 19901, United States. Nothing in Section 28 waives your right to seek public injunctive relief to the extent such waiver is unenforceable under California law; any such claim will be handled as described in Section 28.

New Jersey residents. Nothing in these Terms limits any right you may have under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act. Any provision of these Terms that excludes or limits liability, or requires indemnification, applies to you only to the extent permitted by New Jersey law.

Automatic charges. We do not currently charge your payment method automatically. If we introduce automatic top-ups or any other recurring charge, we will obtain your separate, affirmative consent, disclose the amount and frequency of the charges, send you a confirmation, and allow you to cancel online at any time, as required by applicable state law.