Terms of Service

1. Agreement to terms

These Terms are entered into by and between BMETAL, Inc., a Delaware corporation (“BMETAL,” “we,” “us,” or “our”), and the individual or entity accessing or using the Services (“Customer,” “you,” or “your”). If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind that entity, in which case “you” refers to that entity.

By creating an account, executing an order form that references these Terms, or otherwise accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by these Terms and by our Acceptable Use Policy, Privacy Policy, and any order forms or service descriptions, all of which are incorporated by reference. If you do not agree, you must not access or use the Services.

Enterprise customers may have a separately negotiated master services agreement (an “MSA”) with BMETAL. Where a signed MSA exists, it governs and controls over these Terms to the extent of any conflict.

2. Definitions

• “Services” means the bare-metal compute, inference, networking, power, and related infrastructure and software made available by BMETAL, together with our websites and documentation.
• “Order Form” means an ordering document or online order specifying the Services, capacity, term, and fees.
• “Reserved Capacity” means compute capacity committed to you for a defined term, as set out in an Order Form.
• “Customer Content” means data, code, models, and other materials that you or your end users transmit to, store on, or process using the Services.
• “Documentation” means the usage guides and policies we make generally available for the Services.
• “Confidential Information” has the meaning set out in Section 12.

3. Eligibility and accounts

You must be at least 18 years old and capable of forming a binding contract to use the Services. The Services are intended for business and professional use.

You are responsible for the accuracy of the information you provide, for maintaining the confidentiality of your account credentials and API keys, and for all activity occurring under your account. You must notify us promptly at security@bmetal.ai of any unauthorized use. We may require identity verification and customer due diligence in accordance with our AML / KYC Policy as a condition of providing the Services.

4. Provision of the Services

Subject to your compliance with these Terms and payment of applicable fees, BMETAL grants you a non-exclusive, non-transferable, revocable right to access and use the Services during the applicable term, solely for your internal business purposes.

We may modify, enhance, or discontinue features of the Services from time to time. We will not materially degrade the core functionality of Services you have purchased during a committed term without providing a commercially reasonable substitute or a pro-rata refund for the affected, prepaid, unused portion.

Availability commitments, where offered, are set out in our Service Level Agreement. Beta, preview, or evaluation features are provided “as is,” may be changed or withdrawn at any time, and are excluded from any service level commitment.

5. Orders and Reserved Capacity

Specific Services, capacity, terms, and pricing are set out in Order Forms. Reserved Capacity commitments are non-cancellable for the committed term except as expressly stated in an Order Form or required by law. On-demand usage is billed in arrears based on metered consumption.

Unless an Order Form states otherwise, capacity allocations are subject to availability, and forecasts or indicative quotes are not binding until an Order Form is accepted by both parties.

6. Fees, billing, and taxes

1. 1.Fees are as set out in the applicable Order Form or published price list and are stated exclusive of taxes.
2. 2.Unless otherwise specified, invoices are due net thirty (30) days from the invoice date. On-demand charges may be billed monthly in arrears.
3. 3.Late amounts accrue interest at the lower of 1.5% per month or the maximum rate permitted by law, and we may suspend Services for non-payment after reasonable notice.
4. 4.You are responsible for all taxes, duties, and levies associated with your purchases, excluding taxes based on our net income.
5. 5.Except as expressly stated in these Terms or required by law, fees are non-refundable and payment obligations are non-cancellable.

7. Customer responsibilities

You are responsible for your Customer Content and for your end users’ use of the Services. You will: (a) use the Services in compliance with these Terms, the Acceptable Use Policy, and all applicable laws; (b) obtain all rights and consents necessary for your Customer Content to be processed by the Services; (c) maintain appropriate security for your own systems, credentials, and integrations; and (d) be solely responsible for the development, content, operation, and maintenance of your Customer Content and applications.

8. Acceptable use

Your use of the Services is governed by our Acceptable Use Policy, which is incorporated into these Terms. We may suspend or restrict access to the Services to the extent reasonably necessary to prevent material harm, comply with law, or address a violation of the Acceptable Use Policy, and will use reasonable efforts to give you prior notice where practicable.

9. Customer Content and data protection

As between the parties, you retain all right, title, and interest in and to Customer Content. You grant BMETAL a limited license to host, copy, transmit, and process Customer Content solely as necessary to provide and support the Services.

Where BMETAL processes personal data on your behalf, the parties’ Data Processing Addendum applies and forms part of these Terms. Our handling of personal data is further described in our Privacy Policy. You are responsible for determining whether the Services are appropriate for storage or processing of regulated or highly sensitive data given the configuration you select.

10. Intellectual property

BMETAL and its licensors own all right, title, and interest in and to the Services, including all related software, infrastructure designs, and documentation, and all intellectual property rights therein. No rights are granted to you other than as expressly set out in these Terms.

If you provide feedback or suggestions, you grant BMETAL a perpetual, irrevocable, royalty-free license to use that feedback for any purpose without obligation to you.

11. Confidentiality

“Confidential Information” means non-public information disclosed by one party to the other that is designated as confidential or that should reasonably be understood to be confidential given its nature and the circumstances of disclosure. Each party will use the other’s Confidential Information only to perform under these Terms and will protect it with at least reasonable care. These obligations do not apply to information that is or becomes public through no fault of the receiving party, was rightfully known without restriction, or is independently developed. A party may disclose Confidential Information as required by law, provided it gives reasonable notice where legally permitted.

12. Warranties and disclaimers

Each party represents that it has the authority to enter into these Terms. BMETAL warrants that it will provide the Services in a professional and workmanlike manner consistent with applicable industry standards.

EXCEPT AS EXPRESSLY STATED, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, BMETAL DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BMETAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

13. Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO BMETAL FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.

14. Indemnification

You will defend, indemnify, and hold harmless BMETAL from and against third-party claims, damages, and reasonable costs arising from (a) your Customer Content, (b) your use of the Services in violation of these Terms or the Acceptable Use Policy, or (c) your violation of applicable law. BMETAL will defend you against third-party claims that the Services, as provided and used in accordance with these Terms, infringe that third party’s intellectual property rights, and will indemnify you for resulting damages finally awarded, subject to customary exclusions.

15. Suspension and termination

We may suspend your access to the Services if (a) you materially breach these Terms and fail to cure within ten (10) days of notice, (b) your use poses a security risk or may harm BMETAL or others, or (c) suspension is required by law. Either party may terminate these Terms for the other’s uncured material breach on thirty (30) days’ written notice.

Upon termination, your right to access the Services ceases. We will make Customer Content available for export for a period of thirty (30) days following termination, after which we may delete it in the ordinary course, subject to legal retention requirements. Sections that by their nature should survive termination will survive.

16. Export controls and sanctions

The Services may be subject to export control and economic sanctions laws, including those of the United States. You represent that you are not located in, organized under the laws of, or ordinarily resident in a country or territory subject to comprehensive sanctions, and that you are not a restricted or denied party. You will not use or provide access to the Services in violation of applicable export or sanctions laws.

17. Governing law and dispute resolution

These Terms are governed by the laws of the State of Delaware, without regard to its conflict-of-laws rules, and the federal laws of the United States applicable therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Any dispute arising out of or relating to these Terms that is not resolved informally within thirty (30) days will be finally settled by binding arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association, seated in Wilmington, Delaware, before a single arbitrator, conducted in English. Either party may seek injunctive relief in a court of competent jurisdiction to protect its intellectual property or Confidential Information. To the extent any matter proceeds in court, the parties consent to the exclusive jurisdiction of the state and federal courts located in Delaware.

To the extent permitted by law, disputes will be resolved on an individual basis, and the parties waive any right to participate in a class or representative proceeding.

18. Changes to these Terms

We may update these Terms from time to time. If we make material changes, we will provide reasonable notice, for example by posting the updated Terms with a new “Last updated” date or by notifying you through the Services. Changes are effective upon posting unless stated otherwise. Your continued use of the Services after the effective date constitutes acceptance of the updated Terms.

19. Miscellaneous

• These Terms, together with any Order Forms and incorporated policies, are the entire agreement between the parties regarding the Services.
• If any provision is held unenforceable, the remaining provisions remain in effect.
• A party’s failure to enforce a provision is not a waiver of its right to do so later.
• You may not assign these Terms without our prior written consent; we may assign in connection with a merger, acquisition, or sale of assets.
• Neither party is liable for delays or failures caused by events beyond its reasonable control (see Force Majeure).
• Notices to BMETAL must be sent to legal@bmetal.ai and, for legal notices, to our registered address.

20. Force majeure

Neither party will be liable for any failure or delay in performance (other than payment obligations) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental action, utility or grid failures, or large-scale internet or telecommunications disruptions.

21. Contact

Questions about these Terms may be directed to legal@bmetal.ai. BMETAL, Inc., San Francisco, California, United States.