NVIDIA DGX CLOUD AGREEMENT Last updated: August 8, 2023 IMPORTANT NOTICE – PLEASE READ AND AGREE BEFORE USING NVIDIA DGX CLOUD. This NVIDIA DGX Cloud Agreement is entered into between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“Customer”), and NVIDIA Corporation (“NVIDIA”) and governs the use of the NVIDIA DGX Cloud. This NVIDIA DGX Cloud Agreement consists of the terms and conditions below and all documents attached to or referenced in this NVIDIA DGX Cloud Agreement (together, the “Agreement”). Key terms are defined in Section 19. By registering to use or using the NVIDIA DGX Cloud, Customer is affirming that Customer has read the Agreement and agrees to its terms. If Customer does not have the required authority to enter into the Agreement or if Customer does not accept all the terms and conditions below, do not register to use or use the NVIDIA DGX Cloud. 1. NVIDIA DGX CLOUD OFFERINGS. 1.1 Grant. Subject to the terms of the Agreement, Customer’s Order Agreement, and payment of applicable Subscription fees, NVIDIA grants Customer a non-exclusive, non-transferable, non-sublicensable (except as expressly provided in the Agreement) license to do the following for the duration of the Subscription: 1.1.1 access and use the Services in accordance with the SLA, and 1.1.2 install, use, reproduce and display client software and materials made available to Customer to download and use from Customer Infrastructure in any compatible device for Customer’s use with the NVIDIA DGX Cloud. 1.2 Authorized Users. Under the Agreement, Customer Personnel may access and use the NVIDIA DGX Cloud and Persons may access certain Services to use a Customer Product. As between NVIDIA and Customer, Customer is responsible for supporting the use of Customer Products. If Customer is an academic institution, Customer may allow users enrolled or employed by the academic institution to access and use NVIDIA DGX Cloud as authorized by the Agreement from Customer’s devices. Customer is responsible for the compliance with the terms of the Agreement by Customer’s Authorized Users. Any act or omission that if committed by Customer would constitute a breach of the Agreement will be deemed to constitute a breach of the Agreement if committed by Customer’s Authorized Users. 1.3 License Types. The NVIDIA DGX Cloud is provided under the following license type: Subscription per Node. Customer’s order, license key or the product description will indicate the parameters of Customer’s Subscription. 1.4 Customer Testing. Customer may perform limited vulnerability or penetration testing of the NVIDIA DGX Cloud with NVIDIA’s prior written approval and only in coordination with the NVIDIA security team. Customer must not violate or attempt to violate the security, confidentiality, integrity or availability of any data, and NVIDIA may require Customer to cease any testing, or may take appropriate actions to secure the NVIDIA DGX Cloud. Without written approval, Customer is not authorized to disclose the results of any security testing related to the NVIDIA DGX Cloud. 1.5 Promotional Offerings. NVIDIA may, from time to time, offer free or discounted pricing programs covering certain uses of NVIDIA DGX Cloud, for example having different license parameters or fees for evaluation or academic use. NVIDIA may stop accepting new sign-ups or discontinue a promotional offering at any time. Standard charges will apply after a promotional offering ends or if Customer exceeds the promotional offering use terms. Customer must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) for a promotional offering as described in the corresponding offer terms. 2 USER CONTENT. 2.1 Customer User Content. Customer represents that Customer either owns the User Content it provides to other Authorized Users, or Customer has all rights, licenses, consents, and releases that are necessary to grant the rights for other Authorized Users to use the User Content Customer shares in connection with the Agreement. Customer is solely responsible for any User Content that Customer uploads, stores or shares, including (i) any personal information relating to an identifiable individual, financial, health or governmental information, or any other information which may be subject to data privacy or data security laws, rules, or regulations; and (ii) any security vulnerabilities and related consequences. NVIDIA will process Customer’s User Content in accordance with the DPA which is hereby incorporated by reference into the Agreement. 2.2 Providing User Content. Customer may be able to provide User Content in repositories for use by multiple Authorized Users who are granted access to the repository. It is Customer’s responsibility to have in place terms for use of User Content Customer uploads, stores or shares with other Authorized Users. Any User Content is shared at Customer’s sole risk and Customer understands that others with access may read, collect, organize, use and modify the User Content. 2.3 User Content Transmission. Customer acknowledges that NVIDIA does not manage or control User Content that Customer or other Authorized Users upload, store, share or access through the NVIDIA DGX Cloud and NVIDIA accepts no responsibility or liability for User Content including, without limitation, privacy rights, proprietary rights, or legal and regulatory compliance and regardless of whether such User Content was transmitted to or by Customer in breach of the Agreement. Notwithstanding the foregoing, NVIDIA may restrict or remove User Content, including if requested to do so by law enforcement. 2.4 User Content Grant to NVIDIA. For User Content that Customer uploads, stores or shares, Customer hereby grants NVIDIA, its Affiliates, their personnel and subcontractors a non-exclusive, worldwide, limited license to access, use, copy, display, and transmit User Content for the purpose of providing NVIDIA DGX Cloud to Customer and Customer’s Authorized Users. 3 PRE-RELEASE VERSIONS AND FEATURES. NVIDIA will clearly designate versions that are in Pre-Release. NVIDIA DGX Cloud Pre-Release versions may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability, and reliability standards relative to commercially provided NVIDIA software, materials and services. Use of a Pre-Release version may result in unexpected results, such as loss of use or loss of content. Customer may use a Pre-Release version at Customer’s risk, understanding that such versions are not intended for use in business-critical systems and Customer may stop at Customer’s convenience. NVIDIA may choose to abandon development and terminate the availability of a Pre-Release version at any time without liability. PRE-RELEASE VERSIONS ARE PROVIDED “AS-IS,” “WITH ALL FAULTS,” AND “AS-AVAILABLE,” AND ARE EXCLUDED FROM ENTERPRISE SUPPORT, THE SLA, AND ALL LIMITED WARRANTIES PROVIDED IN THE AGREEMENT. 4 UPDATES AND MAINTENANCE. 4.1 Updates. NVIDIA may change, discontinue or deprecate any part, or all, of the NVIDIA DGX Cloud, or change or remove features, functionality or content available as further detailed in the documentation, as long as NVIDIA replaces the Service or functionality with substantially similar service or functionality. 4.2 Maintenance. The NVIDIA DGX Cloud may be temporarily unavailable, inaccessible or slow when NVIDIA is performing maintenance or upgrades or at other times for reasons not within NVIDIA’s reasonable control. 5 ENTERPRISE SUPPORT. Enterprise Support is included as part of a Service Subscription. Except if pursuant to an accepted Service Subscription Order Agreement, NVIDIA is under no obligation to provide any Enterprise Support. Unless revisions to software or materials are provided with their separate governing terms, they are deemed part of the applicable NVIDIA DGX Cloud offering and governed by the Agreement. 6 USERNAME AND PASSWORD. Customer is responsible for securely maintaining log-in information for Customer Authorized Users’ use, and for all activities under Customer’s account(s). Customer agrees to notify NVIDIA at enterprisesupport@nvidia.com immediately of any known or suspected security incidents or unauthorized use of Customer’s account(s) or the NVIDIA DGX Cloud. 7 COMPONENTS UNDER OTHER LICENSES. The NVIDIA DGX Cloud may include or be distributed with components provided with separate legal notices or terms that accompany the components, such as OSS Licenses and other license terms. The components are subject to the applicable OSS Licenses or other license terms, including any proprietary notices, disclaimers, requirements and extended use rights; except that the Agreement will prevail regarding the use of third-party open source software, unless a third-party OSS License requires its license terms to prevail. 8 PAYMENT TERMS AND TAXES. 8.1 Fees and Taxes. Customer may be able to purchase a Subscription via a reseller, in some cases a cloud marketplace reseller. Each Order Agreement will be effective when entered into by the parties and will be incorporated each time as a separate transaction of the parties under the Agreement. The fees for the Subscription set forth in the Agreement will be exclusive of all transactional taxes, including sales, use, excise, services, value added tax, goods and services tax, or similar tax. If Customer is not billed the applicable tax under the Order Agreement, then it is Customer’s responsibility to properly remit the tax directly to the applicable tax jurisdiction. Further, Customer acknowledges that the payments to reseller under the Agreement will be made in full without reduction for withholding taxes, if applicable. 8.2 Overdue Payment. If any payment is overdue from Customer or a reseller, NVIDIA reserves the right to suspend or terminate Subscriptions, in addition to any other remedies it may have, until the payment delinquency is corrected. Payment obligations survive any expiration or termination of the Agreement. 8.3 Price Changes. Any price change will only apply to purchases after the price change. 9 LIMITATIONS. The following limitations and restrictions apply to the NVIDIA DGX Cloud use, and Customer is responsible for the consequences of non-conformance with these limitations: 9.1 Customer will use the NVIDIA DGX Cloud and User Content exclusively for authorized and legal purposes, consistent with the Agreement’s terms and all applicable laws, regulations and the rights of others, including, without limitation, Intellectual Property Rights, confidentiality, publicity, export and import, security and data privacy, including health information privacy, laws, rules and regulations, and further Customer will not promote or encourage conduct that can lead to illegal activities or give rise to legal liability. 9.2 Customer’s use of NVIDIA DGX Cloud and User Content will not (i) be fraudulent, false, misleading, deceptive, defamatory, obscene, pornographic, vulgar, or offensive; or (ii) be or promote violence, discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group. 9.3 Customer may not access or use the NVIDIA DGX Cloud, or combine paid and unpaid offerings, in a way intended to avoid incurring fees or exceeding use limits or quotas. 9.4 Customer may not reverse engineer, decompile, disassemble, or remove copyright or other proprietary notices from any portion of the NVIDIA DGX Cloud. 9.5 Except as expressly granted in the Agreement, Customer may not copy, sell, resell, rent, sublicense, transfer, assign, timeshare, distribute, modify, or create derivative works of any portion of the NVIDIA DGX Cloud. 9.6 Customer may not violate the security, confidentiality, integrity and availability of the NVIDIA DGX Cloud, or violate the security, confidentiality, integrity and availability of any user, network or system. 9.7 Customer may not perform security testing of NVIDIA DGX Cloud (including probe, scan or vulnerability test) except as expressly authorized under the Agreement. 9.8 Customer may not use the NVIDIA DGX Cloud for crypto mining, or operating a coin service, exchange or other service for the purposes of generating, distributing, or transacting in digital currencies. 9.9 Customer must refrain from unsolicited automated bulk communication activities, including unsolicited mass mailings or other form of “spam”. Generated messages must not spoof or falsify e-mail addresses, routing information or seek to impersonate any person, entity, or otherwise mislead as to the origin of the content. 9.10 Customer may not distribute malware or facilitate the distribution and propagation of malware. 9.11 Customer may not indicate that User Content or a product or service developed with the NVIDIA DGX Cloud is sponsored or endorsed by NVIDIA. 9.12 Customer may not bypass, disable, or circumvent any technical aspect of the NVIDIA DGX Cloud, including, but not limited to, encryption, security, digital rights management, authorization or authentication mechanism. 9.13 Customer may not use the NVIDIA DGX Cloud in any manner that would cause components to become subject to an OSS License or other shareware license. 9.14 Customer may not distribute or disclose to third parties results of benchmarking, competitive analysis, regression or performance data relating to the NVIDIA DGX Cloud without the prior written permission from NVIDIA. 9.15 Customer may not replace any NVIDIA software components in the NVIDIA DGX Cloud that are governed by the Agreement with other software that implements NVIDIA application programming interfaces (APIs). 9.16 Customer may not use the NVIDIA DGX Cloud for the purpose of developing competing products or technologies or assisting a third party in such activities. 9.17 Unless Customer has an agreement with NVIDIA for this purpose, Customer may not use the NVIDIA DGX Cloud with any Critical Application. Examples of Critical Applications include, without limitation, use in avionics, navigation, autonomous vehicle applications, military, medical, or life support or other life or mission critical application. Customer acknowledges that NVIDIA does not design, test, manufacture or certify the NVIDIA DGX Cloud for use in the context of a Critical Application. Beyond NVIDIA delivering the NVIDIA DGX Cloud in accordance with the Agreement, NVIDIA will not be liable to Customer or any third party, in whole or in part, for any claims or damages arising from such uses. 10 CONFIDENTIALITY. 10.1 Right to Use Confidential Information. The receiving party may use the disclosing party’s Confidential Information only to exercise its rights and perform its obligations under the Agreement. The receiving party may disclose the disclosing party’s Confidential Information to its Affiliates, directors, officers, employees, contractors, independent external auditors, and advisors (including legal and accounting) who have a need to know that information in their work for the receiving party under the Agreement and who are bound to protect that information under obligations of confidentiality at least as restrictive as those described in the Agreement. The receiving party will not disclose the disclosing party’s Confidential Information to any third party, except as expressly authorized in the Agreement, without first having written approval of the disclosing party. The receiving party will protect the Confidential Information of the disclosing party with at least the same degree of care that the receiving party uses to protect its own similar confidential and proprietary information, but no less than a reasonable degree of care. Irrespective of any expiration or termination of the Agreement, the receiving party’s duty to protect the disclosing party’s Confidential Information expires five (5) years after the date Confidential Information was disclosed. If the disclosing party sends a written request, the receiving party will promptly return or destroy all Confidential Information received from the disclosing party, together with copies, except that a party may retain archival copies in accordance with its document retention policy or as required by law. 10.2 Exceptions. Confidential Information does not and will not include information that: (i) was in the public domain at the time it was communicated to the receiving party by the disclosing party, or later entered the public domain other than by a breach of the Agreement by the receiving party, (ii) is or was rightfully received or known by the receiving party without restriction on disclosure or any obligation of confidentiality, (iii) is or was independently developed by or for the receiving party without using any of the disclosing party’s Confidential Information, or (iv) is or was generally made available by the disclosing party without restriction on disclosure. The receiving party will not be liable for disclosure of Confidential Information required to be disclosed in response to a valid order by a court or other governmental body of competent jurisdiction. The receiving party will (unless restricted) provide the disclosing party with prior written notice of the required disclosure to permit the disclosing party to seek confidential treatment of such information and disclose only the information necessary to comply with the requirements. 11 SUSPENSION AND TERMINATION. 11.1 Automatic Termination. Customer’s access to the NVIDIA DGX Cloud, including any software downloaded, terminates automatically without notice from NVIDIA upon expiration of Customer’s Subscription. 11.2 Early Termination. NVIDIA may at any time with advance written notice terminate the Agreement or an Order Agreement, or modify the offerings available (i) if use of the NVIDIA DGX Cloud or User Content materially breaches the terms of the Agreement, or violates the rights of others, or violates applicable laws and regulations, (ii) if, in NVIDIA’s reasonable judgment, the NVIDIA DGX Cloud may suffer a significant threat to security, integrity or functionality, (iii) if Customer commences or participates in any legal proceeding against NVIDIA with respect to the NVIDIA DGX Cloud or User Content, or (iv) as needed, in NVIDIA’s reasonable judgment, to comply with laws and regulations or to comply with its service provider agreements. For example, NVIDIA may modify or terminate an offering in connection with a government requirement that would cause NVIDIA to be regulated as a telecommunications provider. Customer may terminate at any time the Agreement or an Order Agreement if NVIDIA does not timely cure a material breach of the Agreement. If the termination basis is breach and the breach is curable, the other party will have thirty (30) days from the date of notification to cure the breach, or five (5) days to cure if the breach is of a payment obligation. 11.3 Suspension. NVIDIA may at any time suspend or restrict Customer or any of Customer’s Authorized Users’ access to the NVIDIA DGX Cloud for the reasons that may lead to termination as described in Section 11.2, or to perform maintenance (whether planned or unplanned). NVIDIA will strive to provide advance notice of suspension, although in some cases the notice may follow suspension. 11.4 Effects of Suspension or Termination. Upon the suspension or termination of the Agreement or an Order Agreement, any fees owed to NVIDIA become immediately due and payable even if longer terms have been agreed earlier. NVIDIA or an NVIDIA reseller will also bill Customer for any minimum commitment during a committed period in the event of early termination for any reason other than for NVIDIA’s uncured material breach. No credit or refund will be provided for Subscription fees paid to NVIDIA or NVIDIA reseller. In addition to Customer being able to delete Customer’s User Content, if Customer requests NVIDIA via an enterprise support ticket to delete Customer’s content from the NGC private registry, Customer’s content will be permanently deleted. It is highly recommended that that Customer maintains its full data backup, as NVIDIA will not be retaining it for Customer’s retrieval. 11.5 Enterprise Support Termination. Enterprise Support ends at the earlier of the expiration or termination of the NVIDIA DGX Cloud Subscription, and no credit or refund will be provided. 11.6 Investigation and Reporting. NVIDIA may investigate violations of the Agreement or misuse of the NVIDIA DGX Cloud, and may report activities to law enforcement, regulators or other authorities. 11.7 Survival. All provisions of the Agreement which by their nature should survive termination will survive termination, including, without limitation, the terms in Section 8 through Section 19. 12 DATA COLLECTION. 12.1 Collection Purposes. Customer hereby acknowledges that the NVIDIA DGX Cloud collects the following data for the following purposes: (i) configuration and operating system data to properly configure and optimize systems for use with the NVIDIA DGX Cloud; (ii) metrics, logs, settings, configurations, performance and usage data of the NVIDIA DGX Cloud to operate and improve NVIDIA DGX Cloud; and (iii) error logs relating to the NVIDIA DGX Cloud for diagnostics and troubleshooting purposes. Customer acknowledges that NVIDIA may not be able to offer certain support services without such data. Further, NVIDIA may require certain personal information such as name, email address, and entitlement information to deliver or provide the NVIDIA DGX Cloud to Customer and its Authorized Users. 12.2 Consents and Notices. Customer is responsible for making any necessary disclosures and obtaining any consents as appropriate to permit NVIDIA’s accessing, storing, and processing of data of Customer or Customer’s Authorized Users as described in the Agreement. Customer will assign a single point of contact to manage any data subject requests by its Authorized Users. 12.3 Third Party Privacy Practices. The NVIDIA DGX Cloud may contain links to third party websites and services, and Customer’s use of third-party products and services may be subject to such third-party privacy statements or practices. NVIDIA is not responsible for the privacy statements or practices of third parties. 12.4 Privacy Policy. The NVIDIA Privacy Policy, located at NVIDIA Privacy Policy explains NVIDIA’s policy for collecting and using data. Customer can navigate to https://www.nvidia.com/en-us/privacy-center contact to manage Customer’s NVIDIA DGX Cloud. 13 OWNERSHIP AND FEEDBACK. 13.1 Ownership of NVIDIA DGX Cloud. As between the parties, NVIDIA DGX Cloud, including all Intellectual Property Rights, is and will remain the sole and exclusive property of NVIDIA or its licensors. Except as expressly granted in the Agreement, (i) NVIDIA reserves all rights, interests, and remedies in connection with the NVIDIA DGX Cloud, and (ii) no other license or right is granted to Customer by implication, estoppel or otherwise. 13.2 Ownership of User Content. As between the parties, Customer owns Customer’s User Content (exclusive any NVIDIA intellectual property that may be included). 13.3 Feedback. Customer may, but is not obligated to, provide Feedback to NVIDIA or an NVIDIA Affiliate. Feedback, even if designated as confidential by Customer, will not create any confidentiality obligation for NVIDIA or its Affiliates. If Customer provides Feedback, Customer hereby grants NVIDIA, its Affiliates and its designees a non-exclusive, perpetual, irrevocable, sublicensable, worldwide, royalty-free, fully paid-up, and transferable license, under Customer’s Intellectual Property Rights, to publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute (through multiple tiers of distribution), import, create derivative works of, and otherwise commercialize and exploit the Feedback for any purpose at NVIDIA’s discretion. Customer agrees that Customer will not give Feedback (i) that Customer has reason to believe is subject to any restriction that impairs the exercise of the grant stated in this section, such as third-party Intellectual Property Rights; or (ii) subject to license terms which seek to require any product incorporating or developed using such Feedback, or other intellectual property of NVIDIA or its Affiliates, to be licensed to or otherwise shared with any third party. Customer represents and warrants that Customer has sufficient rights in any Feedback that Customer provides to grant the rights described above. 14 REPRESENTATIONS AND WARRANTIES, DISCLAIMERS. 14.1 Mutual Representations and Warranties. Each party represents and warrants: 14.1.1 It has the authority and any necessary approvals to enter the Agreement, and 14.1.2 Its execution, delivery and performance under the Agreement does not conflict with any agreement, instrument or understanding to which it is a party or by which it may be bound. 14.2 Customer Representations and Warranties. Customer represents and warrants that use of the NVIDIA DGX Cloud and User Content will be consistent with the Agreement’s terms and all applicable laws, regulations and the rights of others. 14.3 WARRANTY DISCLAIMER. THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES MADE BY THE PARTIES UNDER THE AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO OR ARISING UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE AND COURSE OF DEALING. NO INFORMATION OR ADVICE GIVEN BY EITHER PARTY WILL IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY PROVIDED IN THE AGREEMENT. 15 INDEMNITY. 15.1 NVIDIA Indemnification Obligations. Subject to the limitation of liability described in Section 16, NVIDIA will defend at its own expense any Claim against Customer, Customer’s Affiliates, and their respective employees, directors and agents (“Customer Indemnitees”) brought by a third party that any third party Intellectual Property Right is infringed by a component of the NVIDIA DGX Cloud used in accordance with the Agreement which is: (a) designed by NVIDIA, (b) is not licensed-in by NVIDIA, and (c) is not required for compatibility with an industry standard or to execute software not provided by NVIDIA, and NVIDIA will pay Indemnifiable Costs. However, NVIDIA will have no obligation to indemnify Customer Indemnitees with respect to any Claim relating to, based on, or arising out of: (i) any modification made to the NVIDIA DGX Cloud (other than by NVIDIA); (ii) the combination, integration, application, operation or use of the NVIDIA DGX Cloud with any equipment, device, apparatus, program, code or data that is not manufactured or supplied by NVIDIA where such combination, integration, application, operation or use is the object of the Claim; (iii) any use not intended by NVIDIA; (iv) Implementation of an industry standard or specification; (v) NVIDIA’s compliance with specifications, requirements or instructions of any Customer Indemnitee; and (vi) a Customer Indemnitee failure to use materials or instructions provided by NVIDIA which would have rendered the NVIDIA DGX Cloud non-infringing. 15.2 Customer Indemnification Obligations. Subject to the limitation of liability described in Section 16, Customer will defend at its own expense any Claim against NVIDIA, NVIDIA’s Affiliates, and their respective employees, directors and agents (“NVIDIA Indemnitees”) brought by a third party that use of the NVIDIA DGX Cloud or User Content violate the terms of the Agreement, violate of the rights of others, or violate laws or regulations, and Customer will pay Indemnifiable Costs. 15.3 Indemnity Conditions. The obligations of the indemnifying party in this Section 15 are subject to the conditions that: 15.3.1 the indemnifying party is notified promptly in writing by the indemnified party of any Claim and the indemnified party will reasonably cooperate with the indemnifying party in the defense of the Claim, at the indemnifying party’s cost. If breach of this Section 15.3 prejudices the defense of the Claim, the indemnifying party’s obligations under Section 15.1 (NVIDIA Indemnification Obligations) or 15.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice. 15.3.2 the indemnifying party has sole control of the defense and all negotiation for any settlement or compromise of the Claim; subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. 15.4 Remedies. Should the NVIDIA DGX Cloud become (or in NVIDIA’s opinion be likely to become) the subject of any Claim, NVIDIA will have the option, at its sole discretion and expense: (i) to procure for Customer Indemnitees the right to continue using the NVIDIA DGX Cloud; (ii) to replace or modify the NVIDIA DGX Cloud so that it becomes non-infringing while providing substantially similar functional performance for the NVIDIA DGX Cloud as a whole; or (iii) if NVIDIA determines in its sole discretion that it cannot reasonably do (i) or (ii), NVIDIA may terminate an Order Agreement and will refund to Customer any unused prepaid fees that Customer paid for use of the terminated Order Agreement. 15.5 Sole Rights and Obligations. Section 15 states each indemnifying party’s entire liability, and the indemnified party’s sole and exclusive remedy for Claims relating to or arising out of the NVIDIA DGX Cloud or User Content. 16 LIMITATION OF LIABILITY. 16.1 Disclaimers. EXCEPT AS PROVIDED IN SECTION 16.3, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (II) DAMAGES FOR THE (A) COST OF PROCURING SUBSTITUTE GOODS, OR (B) LOST PROFITS, REVENUE, USE, DATA OR GOODWILL ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR THE PERFORMANCE OF THE NVIDIA DGX CLOUD WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE. 16.2 Damages Capped. EXCEPT AS PROVIDED IN SECTION 16.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE AGGREGATE LIABILITY FOR ANY AND ALL LIABILITIES, OBLIGATIONS OR CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE NET AMOUNTS PAID FOR THE NVIDIA DGX CLOUD SUBSCRIPTIONS DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. 16.3 Uncapped Liability. The limitations set forth in Section 16.1 and Section 16.2 will not limit either party’s liability for: 16.3.1 fraud or fraudulent misrepresentation; 16.3.2 confidentiality obligations, except for all liabilities related to Customer’s User Content which will remain subject to the limitations and exclusions above; 16.3.3 violation of the obligations in Sections 1.1 or 9, or violation of the other party’s Intellectual Property Rights; 16.3.4 payment obligations under the Agreement; or 16.3.5 matters for which liability cannot be excluded or limited under applicable law. 17. GOVERNING LAW. The Agreement will be governed in all respects by the laws of the United States and the laws of the State of Delaware, without regard to conflict of laws principles or the United Nations Convention on Contracts for the International Sale of Goods. The state and federal courts residing in Santa Clara County, California will have exclusive jurisdiction over any dispute or claim arising out of or related to the Agreement, and the parties irrevocably consent to personal jurisdiction and venue in those courts; except that either party may apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction. 18. GENERAL. 18.1 Assignment. NVIDIA may assign, delegate or transfer its rights or obligations under the Agreement by any means or operation of law. Customer agrees that Customer will not transfer or assign the Agreement or Customer’s rights and obligations by any means or operation of law without NVIDIA’s permission. Any attempted assignment not approved by NVIDIA in a signed writing will be void and of no effect. 18.2 Subcontracting. NVIDIA may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations. 18.3 Notices. If NVIDIA needs to contact Customer about the NVIDIA DGX Cloud, Customer consents to receive notices electronically. Customer is responsible for keeping Customer’s notification email current. The parties agree that electronic notice will satisfy any legal communication requirements, and that email notices will be treated as received when the email is sent. Customer is required to send legal notices to NVIDIA Corporation, 2788 San Tomas Expressway, Santa Clara, California 95051, United States of America, Attention: Legal Department, with an emailed copy to legalnotices@nvidia.com. 18.4 Trade and Compliance. Customer agrees to comply with all applicable export, import, trade and economic sanctions laws and regulations, including U.S. Export Administration Regulations and Office of Foreign Assets Control regulations. Customer confirms that Customer will not export or re-export any products or technology, directly or indirectly, without first obtaining any required license or other approval from appropriate authorities, (i) to any countries that are subject to any U.S. or local export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Syria, the Region of Crimea, Donetsk People’s Republic Region and Luhansk People’s Republic Region); (ii) to any end user who it knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, missiles, rocket systems, unmanned air vehicles, or any weapons of mass destruction; (iii) to any end-user who has been prohibited from participating in the U.S. or local export transactions by any governing authority; or (iv) to any known military or military-intelligence end-user or for any known military or military-intelligence end-use in accordance with U.S. trade compliance laws and regulations. Use of the NVIDIA DGX Cloud under the Agreement must be consistent with NVIDIA’s HumanRightsPolicy.pdf (nvidia.com). 18.4 Government Rights. The NVIDIA DGX Cloud software, documentation and technology (“Protected Items”) are “Commercial products” as this term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in, respectively, 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 & 252.227-7014(a)(1). Before any Protected Items are supplied to the U.S. Government, Customer will (i) inform the U.S. Government in writing that the Protected Items are and must be treated as commercial computer software and commercial computer software documentation developed at private expense; (ii) inform the U.S. Government that the Protected Items are provided subject to the terms of the Agreement; and (iii) mark the Protected Items as commercial computer software and commercial computer software documentation developed at private expense. In no event will Customer permit the U.S. Government to acquire rights in Protected Items beyond those specified in 48 C.F.R. 52.227-19(b)(1)-(2) or 252.227-7013(c) except as expressly approved by NVIDIA in writing. 18.5 Force Majeure. Except for payment of fees or taxes, neither party will be liable during an instance of Force Majeure. 18.6 Audit. During the term of the Agreement and for a period of three (3) years thereafter, Customer will maintain complete and accurate information regarding Customer’s activities under the Agreement and NVIDIA or an independent auditor will have the right to audit Customer during regular business hours to validate and confirm Customer’s information and compliance with the terms of the Agreement. Audits will be conducted no more frequently than annually, unless non-compliance was previously found. If an audit reveals an underpayment, Customer will promptly remit the full amount of such underpayment to NVIDIA including interest that will accrue (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law. If the underpaid amount exceeds five percent (5%) of the amounts payable to NVIDIA during the audited period or if the audit reveals a material non-conformance with the terms of the Agreement, then Customer will reimburse NVIDIA’s reasonable audit costs. Further, Customer agrees that the party transacting to sell the NVIDIA DGX Cloud Subscriptions to Customer may share with NVIDIA information regarding Customer’s compliance with the Agreement. 18.7 Entire Agreement. Regarding the subject matter of the Agreement, the parties agree that (i) the Agreement constitutes the entire and exclusive agreement between the parties and supersedes all prior and contemporaneous communications and (ii) any additional or different terms or conditions, whether contained in purchase orders, order acknowledgments, invoices or otherwise, will not be binding and are null and void. 18.8 Severability. If any provision of the Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of the Agreement, which will remain in full force and effect. 18.9 No Waiver. No waiver of any term of the Agreement will be deemed a further or continuing waiver of such term or any other term, and NVIDIA’s failure to assert any right or provision under the Agreement will not constitute a waiver of such right or provision. 18.10 Independent Contractors. The parties are independent contractors, and the Agreement does not create a joint venture, partnership, agency or other form of business association between the parties. Neither party will have the power to bind the other party or incur any obligation on its behalf without the other party’s prior written consent. 18.11 Independent Development. Nothing in the Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products or technology that are similar to the subject of the Agreement, provided that the party does not breach its obligations under the Agreement in doing so. 18.12 Updates to the Agreement. NVIDIA may make changes to the Agreement from time to time. NVIDIA will publish the latest version of the Agreement at NVIDIA NGC. Updated versions of the NVIDIA privacy policy will be posted on the applicable NVIDIA website. The updated Agreement will be effective when published. Please review the Agreement on a regular basis. Customer understands and agrees that Customer’s express acceptance of the updated Agreement or use of the NVIDIA DGX Cloud after the date of publication will constitute Customer’s agreement to the updated Agreement. If Customer does not agree with the updated Agreement, Customer must terminate use of the NVIDIA DGX Cloud. 18.13 Construction. The parties and their respective counsel have negotiated the Agreement and it will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The headings in the Agreement are included solely for convenience and are not intended to affect the meaning or interpretation of the Agreement. As required by the context of the Agreement, the singular of a term includes the plural and vice versa. 19 Definitions. 19.1 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “control” is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. 19.2 “Authorized Users” means Customer Personnel and Persons. 19.3 “Claim” means any formal suits or other legal actions filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding). 19.4 “Confidential Information” means any non-public information provided, including the Order Agreement, in any format by one party to the other party under the Agreement during the term, that was designated or identified by the disclosing party as confidential or should be known by the receiving party when exercising reasonable business judgment to be confidential given the nature or circumstances of its disclosure. 19.5 “Critical Application” means any system or application where the use or failure of such system or application could result in injury, death, or catastrophic damage. 19.6 “Customer Data” has the meaning assigned to it in the DPA. 19.7 “Customer Infrastructure” means Customer owned or leased infrastructure. 19.8 “Customer Personnel” means employees and contractors of Customer and its subsidiaries who may access or use the NVIDIA DGX Cloud from Customer Infrastructure to perform work authorized by the Agreement on Customer’s behalf. 19.9 “Customer Product” means a service hosted by Customer that includes additional material functionality such as Customer or third-party application or content. 19.10 “DPA” means the NVIDIA data processing addendum at https://docs.nvidia.com/dgx-cloud-dpa.pdf. 19.11 “Enterprise Support” means Customer’s access to the then-current support offerings for the NVIDIA DGX Cloud described at https://docs.nvidia.com/enterprise-services-policy.pdf. 19.12 “Feedback” means suggestions, fixes, modifications, enhancements, techniques, requests or other feedback, whether oral or in writing, relating to or in connection with the NVIDIA DGX Cloud. 19.13 “Force Majeure” means an event or circumstance that prevents or delays a party from performing its obligations under the Agreement and that event or circumstance: (i) is not within the reasonable control of that party and is not the result of that party’s negligence (including, without limitation, acts of God, natural disaster, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror or general labor disturbances such as strikes), and (ii) cannot be overcome or avoided by that party using reasonably diligent efforts. 19.14 “Indemnifiable Costs” mean all (i) damages or costs finally awarded against the indemnified party by a court or authority of competent jurisdiction in any action, (ii) damages agreed to in a monetary settlement of such action, (iii) reasonable litigation fees, costs and expenses, incurred by the indemnified party in each of case (i)-(ii) that is specifically attributable to an indemnified Claim. 19.15 “Intellectual Property Rights” means all intellectual property rights, including all patents, trademarks, trade dress, copyrights, database rights, trade secrets, know-how, mask works, and any other similar protected rights in any country including all related applications for and registrations of these rights. 19.16 “NGC” means the NVIDIA GPU Cloud. 19.17 “Node” means the number of compute instances on which Services run. 19.18 “NVIDIA DGX Cloud” means the NVIDIA solution that includes the Services, software and materials, and Enterprise Support. 19.19 “Order Agreement” means the marketplace private offer terms issued by NVIDIA and accepted by Customer, in each case for the purchase of Subscriptions. 19.20 “OSS License” means any software, data or documentation subject to any license identified as an open source license by the Open Source Initiative (http://opensource.org), Free Software Foundation (http://www.fsf.org) or other similar open source organization or listed by the Software Package Data Exchange (SPDX) Workgroup under the Linux Foundation (http://www.spdx.org). 19.21 “Persons” means any person that receives access from Customer or its subsidiaries to the Services as needed to interact with Customer’s Product. 19.22 “Pre-Release” means a version or feature of the NVIDIA DGX Cloud that is identified by NVIDIA as beta, developer preview, early access or otherwise as pre-release. 19.23 “Services” means the platform-as-a-service, software and materials, all of which as available for cloud access. 19.24 “SLA” means the then-current service level agreement for the Services described at https://docs.nvidia.com/dgx-cloud-sla.pdf. 19.25 “Subscription” means Customer’s access to the NVIDIA DGX Cloud subject to the parameters indicated by NVIDIA, inclusive of Enterprise Support, for a fixed duration. 19.26 “User Content” means any content that Customer, through its Authorized Users, may upload, store or share, expressly excluding Feedback. (v. July 13, 2023)   NVIDIA DGX CLOUD PROOF-OF-CONCEPT (POC) PROGRAM SUPPLEMENT The terms in this proof-of-concept supplement ("POC Supplement”) describe the program terms for proof-of-concept (“POC”) uses of the NVIDIA DGX Cloud under the Agreement as modified by this POC Supplement. Capitalized terms used but not defined below shall have the meaning assigned to them in the Agreement. This POC Supplement is an exhibit to the Agreement and is incorporated as an integral part of the Agreement. In the event of conflict between the terms in this POC Supplement and the terms in the Agreement, the terms in this POC Supplement will govern with respect to proof-of-concept use of the NVIDIA DGX Cloud. 1. POC PROGRAM OVERVIEW. Subject to compliance with the Agreement and this POC Supplement, as a participant in the POC program NVIDIA provides Customer limited time access to the NVIDIA DGX Cloud (extendable at NVIDIA’s sole discretion) to the following: ● Access to the NVIDIA designated number of NVIDIA DGX Cloud Nodes solely for Customer to evaluate the documented features of the service, ● High Performance compute, storage and network connectivity for the NVIDIA DGX Cloud, ● Enterprise Support is provided by NVIDIA on an ad-hoc basis, at NVIDIA’s sole discretion, via email and other agreed upon communication channels, ● After the conclusion of the POC, NVIDIA may retain certain data for security purposes such as control plane logs. Except for data retained for security purposes, NVIDIA will purge customer data including customer uploaded data within ninety (90) days from the end of the POC, and ● Customer’s personnel who wish to exercise any data subject rights shall make those requests to Customer’s own entity administrator directly and NVIDIA will provide reasonable support to facilitate Customer’s honoring such data subject requests. 2. COLLABORATION PLAN. In this collaborative POC environment: ● Both NVIDIA and tenant will share the responsibility of NGC org administration and infrastructure use by enabling org admin roles to select NVIDIA and tenant user accounts. ● As an organization administrator, NVIDIA will be tracking and monitoring usage of the shared NVIDIA DGX Cloud environment, including, but not limited to, jobs, customer uploaded data, and logs for support, security operations and product improvement purposes. ● NVIDIA will have service personnel that will be supporting Customer’s POC experience which will be based on agreed workloads and success criteria. The collaboration experience may include, without limitation, sharing containers, walking teams through the workflow, and tracking the outcome of a job. 3. PROGRAM PARTICIPATION TERMS. As a POC participant, Customer agrees to: ● Identify business, technical and security points of contact, ● Outline and define POC success criteria, ● Participate in weekly progress sync meetings, ● Be available for user experience research, ● Use NVIDIA DGX Cloud only for non-production deployment(s) such as testing and proof-of-concept, and ● Refrain from uploading or processing controlled or sensitive data, including (but not limited to), protected health information, personally identifiable information, payment card industry information or sensitive human subject research. 4. END OF PROOF-OF-CONCEPT ACCESS. At all times during the POC, NVIDIA and its agents have the right to inspect, repair, maintain, improve and update the NVIDIA DGX Cloud. Additionally, NVIDIA may choose to change or terminate the POC access at any time without liability. NVIDIA may delete any data uploaded to the POC environment at any time at its discretion, and NVIDIA will delete data at the end of Customer’s participation in the POC except for the data that will be retained for security purposes. As with any temporary or POC offering, it is highly recommended that that Customer maintains its full data backup outside of the NVIDIA DGX Cloud POC environment.