EXHIBIT
10.40
MASTER
SERVICE AGREEMENT
THIS
MASTER SERVICE AGREEMENT (the "Agreement") dated this
19th
day
of September 2018
BETWEEN:
CLIENT
Investview
INC and its Assigns
12
South 400 West
Salt
Lake City, UT 84101
(the
"Client")
&
CONTRACTOR
BYOBitcoin
LLC
4510 W
Guadalupe St Austin, TX 78751
(the
"Contractor")
CONTROLLER
Mike
Boggs
137
Hawthorne Dr
Everett,
PA 15537
Page
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BACKGROUND
1.
The Client is of
the opinion with due diligence completed that the Contractor has
the necessary qualifications, experience and abilities to provide
services to the Client.
2.
The Contractor is
agreeable to providing such services to the Client on the terms and
conditions set out in this Agreement.
3.
The
Controller’s role is to facilitate the initial business
relationship between Client and Contractor, monitor and maintain
obligations brought henceforth of this agreement and future
agreements for the client, otherwise Client and Contractor shall
communicate directly in the normal course of business. It is solely
the responsibility of the Client to compensate the Controller and
ensure that any obligations to Controller are met.
4.
The purpose of this
business arrangement is for Client to be able to provide its
customers, namely, the ability to purchase cryptocurrency mining
hardware, and subsequently provide hosting services for the
hardware for the purpose of cryptocurrency mining (the
“Product Package”).
5.
Client is
responsible for accurately advertising the Product Package to its
customers. Contractor is not liable for the content of any
advertising or marketing conducted by Client.
6.
Client affirms that
it engages in reasonable and appropriate compliance measures given
its role as a service provider of financial research and education
services.
IN CONSIDERATION OF
the matters described above and of the
mutual benefits and obligations set forth in this Agreement, the
receipt and sufficiency of which consideration is hereby
acknowledged, the Client and the Contractor (individually the
"Party" and collectively the "Parties" to this Agreement) agree as
follows:
1.
SERVICES PROVIDED
The
Client hereby agrees to engage the Contractor to provide the Client
with the following services (the "Services"):
Order,
receive, manage, maintain, provide power & internet for all
mining rig equipment ordered through Investview INC and its
assigns.
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The
Services may be expanded to include additional tasks the parties
mutually agree to from time to time. The Contractor hereby agrees
to provide such Services to the Client.
2.
TERM OF AGREEMENT
a)
The term of this
Agreement (the "Term") will begin on the date of this Agreement and
will remain in full force and effect indefinitely until terminated
as provided in this Agreement.
b)
In the event that
either Party wishes to terminate this Agreement, that Party will be
required to provide sixty (60) days' written notice to the other
Party.
c)
In the event that
either Party breaches a material provision under this Agreement,
the non-defaulting Party may terminate this Agreement immediately
and require the defaulting Party to indemnify the non-defaulting
Party against all reasonable damages.
d)
This Agreement may
be terminated at any time by mutual agreement of the
Parties.
e)
Except as otherwise
provided in this Agreement, the obligations of the Contractor will
end upon the termination of this Agreement.
3.
PERFORMANCE
The
Parties agree to do everything necessary to ensure that the terms
of this Agreement take effect and includes but is not limited to
the following:
a)
Payment is
necessary to ensure that devices purchased through the
Product
Package
can be made operational in a proper facility within the given
timeline.
b)
Once client sells
2,300 (Two Thousand Three Hundred) units of hardware, and the
contractor has received the equivalent payment, the contractor is
then required to build out a dedicated facility and be operational
within a maximum of 90 days. This 90-day contractor deadline for
hosting does not commence until this unit of sales requirement has
been met by client.
c)
If the Client
wishes to accelerate the dedicated facility timeline, they may do
so by providing upfront funding assistance in amounts ranging from
$25,000.00 to $100,000.00 enabling the Contractor to begin facility
buildout prior to the 2,300unit quantity purchase requirement. Any
amounts advanced to Contractor from Client will be deducted from
product package purchases after 2,300 units ordered are
achieved.
d)
The Parties agree
that plans and design for a mining pool will commence upon the
successful sale and hosting of 8,000 units. At this time, updated
timelines will be provided to Client on a weekly basis as to the
date and availability of the establishment and operation of the
pool.
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e)
The Parties further
agree that unless affirmatively stated otherwise, the contractor
will become the exclusive crypto-currency device sales and device
hosting partner to Client and Client’s customers ninety (90)
days after the commencement of the Term. The contractor will give
the client a 45-day first right of refusal after the original 4,800
rigs are sold. for all available new facilities, and power, a
1,600-unit count per exclusivity at each new specified
facility
4.
CURRENCY
Except
as otherwise provided in this Agreement, all monetary amounts
referred to in this Agreement are in USD (US Dollars).
5.
Payments/ALLOCATIONS
a)
The Client is able
to pay the contractor in USD and/or Bitcoin (BTC).
b)
Notice of split of
payments in different monetary amounts can be provided
verbally.
c)
An agreement of how
funds will be sent to contractor will be agreed upon during launch
planning.
d)
Contractor is
required to show proof of purchase for each dispatch of orders to
Investview INC and/or Controller within 72 hours of receiving said
payment.
6.
CONFIDENTIALITY
a)
Confidential
information (the "Confidential Information") refers to any data or
information relating to the business of the Client which would
reasonably be considered to be proprietary to the Client including,
but not limited to, accounting records, business processes, and
client records and that is not generally known in the industry of
the Client and where the release of that Confidential Information
could reasonably be expected to cause harm to the
Client.
b)
The Contractor and
Client mutually agree that they will not disclose, divulge, reveal,
report or use, for any purpose, any confidential information which
the Contractor or Client has obtained from the other party, except
as authorized by the Client or as required by law. The obligations
of confidentiality will apply during the term of this Agreement and
will survive indefinitely upon termination of this
Agreement.
All written and oral information and material disclosed or provided
by the Client to the Contractor under this Agreement is
Confidential Information regardless of
whether it was
provided before or after the date of this Agreement or how it was
provided to the Contractor.
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7.
OWNERSHIP OF INTELLECTUAL PROPERTY
a)
All intellectual
property and related material (the "Intellectual Property") that is
developed or produced under this Agreement, will be the property of
the Contractor. The Client is granted a non-exclusive limited-use
license of this Intellectual Property.
b)
Title, copyright,
intellectual property rights and distribution rights of the
Intellectual Property remain exclusively with the
Contractor.
8.
RETURN OF PROPERTY
Upon
the expiration or termination of this Agreement, the Contractor
will return to the Client any property, documentation, records, or
Confidential Information which is the property of the
Client.
9.
CAPACITY/INDEPENDENT CONTRACTOR
In
providing the Services under this Agreement it is expressly agreed
that the Contractor is acting as an independent contractor and not
as an employee. The Contractor and the Client acknowledge that this
Agreement does not create a partnership or joint venture between
them and is exclusively a contract for service. The Client is not
required to pay, or make any contributions to, any social security,
local, state or federal tax, unemployment compensation, workers'
compensation, insurance premium, profit-sharing, pension or any
other employee benefit for the Contractor during the Term. The
Contractor is responsible for paying, and complying with reporting
requirements for, all local, state and federal taxes related to
payments made to the Contractor under this Agreement.
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10.
NOTICE
All
notices, requests, demands or other communications required or
permitted by the terms of this Agreement will be given in writing
and delivered to the Parties at the following
addresses:
Investview
INC
ATTN:
Annette Raynor
745
Hope Road
Eatontown,
NJ 07724
BYOBitcoin
LLC
4510 W
Guadalupe St
Austin,
TX 78751
or to
such other address as either Party may from time to time notify the
other and will be deemed to be properly delivered (a) immediately
upon being served personally, (b) two days after being deposited
with the postal service if served by registered mail, or (c) the
following day after being deposited with an overnight
courier.
11.
INDEMNIFICATION
Except
to the extent paid in settlement from any applicable insurance
policies, and to the extent permitted by applicable law, each Party
agrees to indemnify and hold harmless the other Party, and its
respective directors, shareholders, affiliates, officers, agents,
employees, and permitted successors and assigns against any and all
claims, losses, damages, liabilities, penalties, punitive damages,
expenses, reasonable legal fees and costs of any kind or amount
whatsoever, which result from or arise out of any act or omission
of the indemnifying party, its respective directors, shareholders,
affiliates, officers, agents, employees, and permitted successors
and assigns that occurs in connection with this Agreement. This
indemnification will survive the termination of this
Agreement.
12.
ADDITIONAL CLAUSES
a)
Investview INC and
its Assigns will allow an initial 36-month hosting agreement or
multiyear hosting contracts to be fulfilled by Contractor. An
example of the hosting agreement is included as Exhibit
B.
b)
Contractor
maintains ownership of this hosting contract and will continue to
service and honor the contract.
c)
Contractor extends
the current Product Package price list to Client herein included as
Exhibit A.
d)
Client will send
funds for weekly Product Package purchases by Clients’
customers to Contractor by Friday by 2 pm Mountain Time of every
week per the amount stated above.
Contractor
will be required to place the orders within 72 hours of
monies/credit received from the date of monies posted.
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e)
Contractor is
extending the Client insurance for the term of the Contractor
hosting agreement. Client will include the price of the upfront
insurance payment in the Product Package purchase and remit to
Contractor with all Product Package purchases.
f)
Contractor will be
required to open another facility strictly for Investview INC and
it’s Assigns upon the total cumulative purchase of 2,300
packages.
g)
Investview INC and
its assigns will be allowed to showcase, provide tours, or events
near their specific allocated facility. We require five business
days’ notice and approval so that management can be on
site.
h)
Software will be
branded to Investview Inc., its Assigns or as
requested.
i)
Customer support
will be provided for the software by Contractor.
j)
Equipment inbound
customer support will be provided by Client.
k)
Contractor is
responsible to collect the accounts receivable from day 61 for all
purchases. Therefore, Client shall provide Contractor with all
relevant and necessary information to assume this invoicing
function when it transitions from Client to
Contractor.
l)
Client will supply
a purchase agreement and hosting agreement to each customer for the
associated purchase.
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13.
MODIFICATION OF AGREEMENT
Any
amendment or modification of this Agreement or additional
obligation assumed by either Party in connection with this
Agreement will only be binding if evidenced in writing signed by
each Party or an authorized representative of each
Party.
14.
TIME OF THE ESSENCE
Time is
of the essence in this Agreement. No extension or variation of this
Agreement will operate as a waiver of this provision.
15.
ASSIGNMENT
The
Contractor will not voluntarily, or by operation of law, assign or
otherwise transfer its obligations under this Agreement without the
prior written consent of the Client.
16.
ENTIRE AGREEMENT
It is
agreed that there is no representation, warranty, collateral
agreement or condition affecting this Agreement except as expressly
provided in this Agreement.
17.
ENUREMENT
This
Agreement will enure to the benefit of and be binding on the
Parties and their respective heirs, executors, administrators and
permitted successors and assigns.
18.
TITLES/HEADINGS
Headings
are inserted for the convenience of the Parties only and are not to
be considered when interpreting this Agreement.
19.
GENDER
Words
in the singular mean and include the plural and vice versa. Words
in the masculine mean and include the feminine and vice
versa.
20.
GOVERNING LAW
This
Agreement will be governed by and construed in accordance with the
laws of the State of Utah.
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21.
SEVERABILITY
In the
event that any of the provisions of this Agreement are held to be
invalid or unenforceable in whole or in part, all other provisions
will nevertheless continue to be valid and enforceable with the
invalid or unenforceable parts severed from the remainder of this
Agreement.
22.
WAIVER
The
waiver by either Party of a breach, default, delay or omission of
any of the provisions of this Agreement by the other Party will not
be construed as a waiver of any subsequent breach of the same or
other provisions.
23.
DISPUTE RESOLUTION
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Exhibit A
Pricing
1.
Contractor pricing
for Client hardware purchase is: $480
2.
An upfront payment
of $90 for provisioning and insurance coverage for the period equal
to 36 months from the day operation commences will be collected and
remitted to Contractor with each hardware purchase.
3.
Current hardware
being purchased: S9j 14.5T/h
4.
Pricing is subject
to revision based on market conditions.
5.
Client is
responsible for collection of 2 (two) months hosting and
maintenance fees for all purchases.
6.
Contractor is
responsible for the collection of all hosting and maintenance fees
from end user customer from day 61 through to the end of the
term.
7.
Client is
responsible for collection of the shipping fee per each order of
hardware. Client shall remit this amount to Contractor for each
order placed. That cost is currently $100 per unit of
hardware.
DISCLOSURE:
Both parties
are aware and understand that these prices may fluctuate up or down
that are not able to be controlled by either party due to market
conditions of several factors.
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Exhibit B Enclosure
Customer
Hosting Agreement
Terms
of Service
Governing
Policies & Procedures
Page 11 of 26
HARDWARE
DEVICE SERVICE AGREEMENT
THIS
HARDWARE DEVICE SERVICE AGREEMENT (the “Agreement”) is
made effective as of [
September
19, 2018
] (the “Effective
Date”) by and between BYOBitcoin LLC a Texas limited
liability company with its principal offices located in, Austin TX
(“Seller”), and [Investview, Inc.
(“Customer”), collectively, the
“Parties”.
BACKGROUND
A.
Seller has
developed certain business practices and / or software applications
embedded in digital currency mining hardware, which Seller makes
available to subscribers for the purpose of providing efficient
digital currency mining services.
B.
The Customer wishes
to use Seller's service in its current form.
C.
Seller has agreed
to provide, and the Customer has agreed to purchase and pay for
Seller's service subject to the terms and conditions of this
Agreement.
D.
Seller provides
Customer with a mobile or web app to read and display the data
created by Seller software devices on an “as is” basis
without any further representations or warranties, and may not be
held responsible for bugs, crashes, failures, or anything
whatsoever with respect to the operation of its mobile or web
app.
E.
Customer
understands that Seller is not responsible for the value, exchange
rate, level of difficulty in obtaining, or legal treatment by
authorities of, any digital currency. Customer further understands
that publicly available exchange rates, value rates, difficulty
rates, or any other measure of value or availability for digital
currencies fluctuate regularly, and that Seller is not responsible
in any way for these fluctuations and any gain or loss experienced
by Customer as a result of such fluctuations. Customer also
understands that Seller uses a public digital currency mining pool
to provide its Services, and that any individual Customer’s
contribution to the currency mining process is calculated in
relation to its pro rata presence within the mining pool, and that
the value of any digital currency mined through such a pool may
differ from publicly available values.
F.
47 CFR 15 Notice:
Operation of any radio transmission devices related to the Services
provided to Customer is subject to the following two conditions:
(1) Devices may not cause harmful interference, and (2) devices
must accept any interference received, including interference that
may cause undesired operation.
G.
The Parties shall
attach a proposal or some form of original purchase order to this
Agreement, as Exhibit B, that confirms the basic terms of the
Parties’ business arrangement, such as pricing, quantity,
monthly payment amount, and contact information, as set forth in
Exhibit A.
H.
Customer
understands that they are solely responsible for the maintenance of
their digital currency wallet, and any passwords or other account
management features associated with that digital currency wallet.
Customer will provide all necessary information for Seller to
securely transfer digital currency to Customer’s wallet prior
to the commencement of any Services on behalf of or for the benefit
of Customer.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
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AGREED TERMS 1. INTERPRETATION
The
definitions and rules of interpretation in this clause apply in
this Agreement.
Authorized Users:
those employees,
agents and independent contractors of who are authorized by the
Customer (or Seller on behalf of Customer) to use the Services and
the Documentation; Authorized User may also mean all personnel
authorized to use the Services and Documentation at a single
business location.
Business Day:
any day which is not a
Saturday, Sunday or legal holiday in the United
States.
Confidential Information:
information
that is proprietary or confidential and is either clearly labeled
as such, reasonably should be known as confidential, or identified
as Confidential Information throughout this Agreement.
Customer Data:
the data inputted or
generated by the Customer, Authorized Users, or Seller on the
Customer's behalf for the purpose of using the Services or
facilitating the Customer’s use of the Services.
Documentation:
the document made
available to the Customer by Seller either in hard copy or at
byobitcoin-mining.com or such other web address as identified by
Seller to the Customer from time to time which sets out a
description of the Services and the user instructions for the
Services.
Effective Date:
the date set forth in
the initial paragraph of this Agreement.
Hardware Device:
An ASIC cryptocurrency
miner is an Application Specific Integrated Circuitry hardware that
is designed to solve one specific algorithm (SHA256, X11, Scrypt,
etc) using electrical energy and computational power by doing so
the hardware is able to produce cryptocurrency (Bitcoin, Litecoin,
Dash, etc).
Hardware Device Subscription:
The
Hardware Device subscriptions purchased by the Customer which
entitle Authorized Users to access and use the Services and the
Documentation in accordance with this Agreement; Customer purchases
Subscriptions based on the number of Hardware Devices in use by
Customer.
Services:
The digital currency mining
subscription services provided by Seller to the Customer under this
Agreement, via byobitcoin-mining.com, and or other software /
mobile applications supplied or developed by Seller or any other
website or software or application or hardware devices with
embedded software as provided to the Customer by Seller from time
to time, for the purpose of mining digital currency for use by
Customer in the course of its business.
Software: the
software applications provided by Seller as part of the
Services.
Software Device:
hardware provided by
Seller with embedded Software such that the hardware is
functionally devoid of use without the Software.
Subscription Fees:
the subscription fees
payable by the Customer to Seller for the Device
Services.
Support Services Policy:
Seller's policy
for providing support in relation to the Services as made available
herein or such other website address as may be notified to the
Customer from time to time. Support Services generally include
support available during normal business hours
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2. CHARGES AND PAYMENT
a.
The Customer shall
pay the Subscription Fees to Seller for the Hardware Device
Services according to the following terms:
|
Effective
Date of Services Agreement
|
1
st
Day of Equipment Operation
|
|
Term of
Services Agreement
|
24
months
|
|
Monthly
Subscription Price
|
$90.00
|
|
Number
of Prepaid Months w/ insurance
|
2
months
|
|
First
Payment Due
|
1 day
after the prepaid period ends
|
b.
The Customer shall
on the Effective Date provide to Seller valid, up-to-date and
complete payment information, such as ACH or wire transfer
information and any other relevant valid, upto-date and complete
contact and billing details and, if the Customer
provides:
i.
its approved
information to Seller, Seller shall invoice the
Customer:
ii.
on the Effective
Date for the Subscription Fees for payment of the initial
Subscription Term; iii. at least 3 business days prior to each
month, or annual payment due date for the Services, payable with
respect to the next Renewal Period, and the Customer shall pay each
invoice within 5 business days after the date of receipt of such
invoice.
c.
If Seller has not
received payment within 48 hours after the due date, and without
prejudice to any other rights and remedies of Seller:
i.
Seller may, without
liability to the Customer, disable the Customer’s password,
account and access to all or part of the Services if payment is not
received within 48 hours of a payment due date, and Seller shall be
under no obligation to provide any or all of the Services while the
invoice(s) remain unpaid;
ii.
In the event of
non-payment and suspension or cancellation of the Services, Seller
shall still store Customer data for a period of up to thirty (30)
days, and Customer will be able to reaccess this data and the
Services upon payment and resumption of the Services;
iii.
Invoices not paid
in full within the 30 days will result in termination of contract
and change in ownership of equipment to Seller as form of payment
for damages occurred by customer defaulting on
payment.
iv.
All amounts and
fees stated or referred to in this Agreement shall be payable in
U.S. dollars.
d.
Customer may
terminate contract and receive their equipment for a fee of 3
months payment plus shipping. Seller has prepaid for power and this
termination fee will cover the damages.
e.
Payments to Seller
are non-cancellable and non-refundable
3. ACCEPTANCE OF TERMS
I have
read the BYOBitcoin Terms of Service (TOS) document and accept
these terms:
☐
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I have
read the BYOBitcoin Policy & Procedures (P&P) and accept
these policies:
☐
I state
that that no claims have been made me and fully release the sellers
from claims:
☐
IN
WITNESS WHEREOF the parties have duly executed this Agreement as of
the date first written above.
|
|
Seller
|
Buyer
|
|
|
|
|
|
|
|
|
Signature
: /s/ Devin Blitzer
|
Signature:
/s/ Ryan Smith
|
|
Name:
Name:
Kuvera
ID
#:
Terms of Service Agreement
AGREED
TERMS
1. INTERPRETATION
The
definitions and rules of interpretation in this clause apply in
this Agreement.
Authorized Users:
those employees, agents and independent
contractors of who are authorized by the Customer (or Seller on
behalf of Customer) to use the Services and the Documentation;
Authorized User may also mean all personnel authorized to use the
Services and Documentation at a single business
location.
Business Day:
any day which is not a Saturday, Sunday or
legal holiday in the United States.
Confidential Information:
information that is proprietary or
confidential and is either clearly labeled as such, reasonably
should be known as confidential, or identified as Confidential
Information throughout this Agreement.
Customer Data:
the data inputted or generated by the
Customer, Authorized Users, or Seller on the Customer'sbehalf for
using the Services or facilitating the Customer’s use of the
Services.
Documentation:
the document made available to the Customer
by Seller either in hard copy or at byobitcoin-mining.com or such
other web address as identified by Seller to the Customer from time
to time which sets out a description of the Services and the user
instructions for the Services.
Effective Date:
the date set forth in the initial paragraph
of this Agreement.
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Hardware
Device: An ASIC cryptocurrency miner is an Application Specific
Integrated Circuitry hardware that is designed to solve one
specific algorithm (SHA256, X11, Scrypt, etc) using electrical
energy and computational power by doing so the hardware is able to
produce cryptocurrency (Bitcoin, Litecoin, Dash, etc).
Hardware Device Subscription:
The Hardware Device
subscriptions purchased by the Customer which entitle Authorized
Users to access and use the Services and the Documentation in
accordance with this Agreement; Customer purchases Subscriptions
based on the number of Hardware Devices in use by
Customer.
Services:
The digital currency mining subscription services
provided by Seller to the Customer under this Agreement, via
byobitcoin-mining.com, and or other software / mobile applications
supplied or developed by Seller or any other website or software or
application or hardware devices with embedded software as provided
to the Customer by Seller from time to time, for the purpose of
mining digital currency for use by Customer in the course of its
business.
Software:
the software applications provided by Seller as
part of the Services.
Software Device:
hardware provided by Seller with embedded
Software such that the hardware is functionally devoid of use
without the Software.
Subscription Fees:
the subscription fees payable by the
Customer to Seller for the Device Subscriptions.
Subscription
Term: has the meaning given in clause 15.
Support
Services Policy: Seller's policy for providing support in relation
to the Services as made available herein, at byobitcoin-mining.com,
or such other website address as may be notified to the Customer
from time to time. Support Services generally include:
●
Customer service
support available during normal business hours
●
Remote / virtual
technical support for Software Devices
●
Warranty assistance
for Customer: although Seller works with all Hardware Devices
“as is” and does not provide any warranty for any
Hardware Device used for the Services (whether or not such Hardware
Device was also purchased from Seller), will provide reasonable
customer service to assist Customers with any issues or Hardware
Device failures typically covered by a warranty or otherwise the
result of normal wear and tear. For the avoidance of doubt, Seller
is not responsible for making any repairs or incurring any expense
whatsoever on behalf of Customer to maintain or repair any Hardware
Device. Notwithstanding the foregoing, in the event a repair is
needed for any Hardware Device, Seller and Customer will use
commercially reasonable efforts to identify a solution which may
include, but is not limited to, the purchase of a new Hardware
Device by Customer, or repairing a Hardware Device at cost to
Customer.
Virus:
anything or device (including any software, code, file or program)
which may: prevent, impair or otherwise adversely affect the
operation of any computer software, hardware, or network,
any
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telecommunications
service, equipment or network or any other service or device;
prevent, impair or otherwise adversely affect access to or the
operation of any program or data, including the reliability of any
program or data (whether by re-arranging, altering or erasing the
program or data in whole or part or otherwise); or adversely affect
the user experience, including worms, trojan horses, viruses and
other similar things or devices.
2.
Clause, schedule
and paragraph headings, or errors in any internal references
amongst clauses, paragraphs, or sections of this Agreement, shall
not affect the validity or interpretation of this
Agreement.
3.
A reference to a
statute or statutory provision is a reference to it as it is in
force for the time being, taking account of any amendment,
extension, or re-enactment and includes any subordinate legislation
for the time being in force made under it.
4.
References to
clauses and schedules are to the clauses and schedules of this
Agreement; references to paragraphs are to paragraphs of the
relevant schedule to this Agreement.
HARDWARE DEVICE
SUBSCRIPTIONS
1.
Subject to the
Customer purchasing the Services in accordance with the other terms
and conditions of this Agreement, Seller grants to the Customer a
non-exclusive, non-transferable right to permit the Authorized
Users to use the Services and the Documentation during the
Subscription Term solely for mining and collecting digital
currency.
2.
The Customer shall
not access, store, distribute or transmit any Viruses, or any
material during its use of the Services that:
(a)
is unlawful,
harmful, threatening, defamatory, obscene, infringing, harassing or
racially or ethnically offensive;
(b)
facilitates illegal
activity;
(c)
depicts sexually
explicit images;
(d)
promotes unlawful
violence;
(e)
is discriminatory
based on race, gender, color, religious belief, sexual orientation,
disability, or any other illegal activity; or
(f)
causes damage or
injury to any person or property;
and
Seller reserves the right, without liability to the Customer, to
disable the Customer’s access to any Services that breaches
the provisions of this clause.
3. The
Customer shall not:
(a)
except as may be
allowed by any applicable law which is incapable of exclusion by
agreement between the Parties:
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(i)
and except to the
extent expressly permitted under this Agreement, attempt to copy,
modify, duplicate, create derivative works from, frame, mirror,
republish, download, display, transmit, or distribute all or any
portion of the Software and/or Documentation (as applicable) and/or
Services in any form or media or by any means; or
(ii)
attempt to reverse
compile, disassemble, reverse engineer or otherwise reduce to
humanperceivable form all or any part of the Software;
or
(b)
access all or any
part of the Services and Documentation in order to build a product
or service which competes with the Services and/or the
Documentation; or
(c)
use the Services
and/or Documentation to provide services to third parties;
or
(d)
license, sell,
rent, lease, transfer, assign, distribute, display, disclose, or
otherwise commercially exploit, or otherwise make the Services
and/or Documentation available to any third party except the
Authorized Users; or
(e)
attempt to obtain,
or assist third parties in obtaining, access to the Services
and/or
Documentation,
other than as provided under this clause 2; or
(f)
prohibit the
transmission of data or signals, or interfere with transmission,
required for effective hardware or software functioning, whether or
not owned or licensed by Customer.
4.
The Customer shall
use all reasonable efforts to prevent any unauthorized access to,
or use of, the Services and/or the Documentation and, in the event
of any such unauthorized access or use, promptly notify
Seller.
5.
The rights provided
under this clause 2 are granted to the Customer only and shall not
be considered granted to any subsidiary or holding company of the
Customer.
SERVICES
1.
Seller shall,
during the Subscription Term, provide the Services and make
available the Documentation to the Customer on and subject to the
terms of this Agreement.
2.
Seller shall use
commercially reasonable efforts to make the Services available 24
hours a day, seven days a week, except for: - If maintenance is
required, they will try to reboot, if that doesn’t work,
customer will be contacted.
(a)
planned maintenance
carried out during the maintenance window of 12am (Midnight) to
4:00 am Central time - in the event of planned maintenance, Seller
will use commercially reasonable efforts to notify Customer of such
planned maintenance; and
(b)
unscheduled
maintenance performed outside Normal Business Hours, provided that
Seller has used reasonable efforts to give the Customer at least
one business day of notice in advance, if possible.
3.
Seller will, as
part of the Services and at no additional cost to the Customer,
provide the Customer with Seller’s standard customer support
services during Normal Business Hours.
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4.
CUSTOMER
DATA
1.
The Customer shall
own all rights, title and interest in and to all of the Customer
Data and shall have sole responsibility for the legality,
reliability, integrity, accuracy, and quality of the Customer Data.
Customer possesses sole responsibility for the use of Customer
Data, including decisions made or actions taken in reliance upon
such data. Customer Data is not digital currency.
2.
Seller is not
responsible for storing or maintaining any Customer Data. In the
event of any loss or damage to Customer Data, the Customer's sole
and exclusive remedy shall be for Seller to use reasonable
commercial efforts to assist customer through customer service
protocol. Seller shall not be responsible for any loss,
destruction, alteration or disclosure of Customer Data caused by
any third party (except those third parties sub-contracted by
Seller to perform services related to Customer Data maintenance or
back-up).
3.
Seller shall, in
providing the Services, comply with all other relevant policies
relating to the privacy and security of the Customer Data available
at byobitcoin-mining.com or written upon such documentation that
may be furnished to Customer and may be amended from time to time
by Seller in its sole discretion.
4.
If Seller processes
any personal data information or payment information on the
Customer’s behalf when performing its obligations under this
Agreement, the Parties agree that:
(a)
Seller shall
process the personal data information only in accordance with the
terms of this Agreement, relevant laws if applicable, such as GDPR
or KYC laws, and any lawful instructions reasonably given by the
Customer from time to time; and
(b)
each Party shall
take appropriate technical and organizational measures against
unauthorized or unlawful processing of the personal data
information or its accidental loss, transmission, destruction, or
damage.
SELLER'S
OBLIGATIONS
1.
Seller states that
the Services will be performed substantially in accordance with the
Documentation and with reasonable skill and care.
2.
The statement in
clause 6.1 shall not apply to the extent of any non-conformance
which is caused by use of the Services contrary to Seller's
instructions, or modification or alteration of the Services by any
party other than Seller or Seller's duly Authorized contractors or
agents. If the Services do not conform to clause 6.1, Seller will,
at its expense, use all reasonable commercial efforts to correct
any such non-conformance promptly. Such correction or substitution
constitutes the Customer's sole and exclusive remedy for any breach
of the undertaking set out in clause 6.1.
Notwithstanding
the foregoing, Seller:
(a)
does not warrant
that the Customer's use of the Services will be uninterrupted or
error-free; nor that the Services, Documentation and/or the
information obtained by the Customer through the Services will meet
the Customer's requirements;
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(b)
is not responsible
for any delays, delivery failures, or any other loss or damage
resulting from the transfer of data over communications networks
and facilities, including the Internet, and the Customer
acknowledges that the Services and Documentation may be subject to
limitations, delays and other problems inherent in the use of such
communications facilities;
(c)
In no circumstances
shall Seller be liable to Customer for any loss, damage, failure,
delay, or injury in an amount greater than what Customer has paid
to Seller for Services within the preceding 12 months;
(d)
shall not be
responsible for providing any replacement parts for any devices
furnished under or contemplated to be used in accord with this
Agreement, pursuant to notification by Customer that a battery
replacement is required, or replace the device if the batteries
cannot be replaced or recharged;
(e)
shall use
professional care in installing any Services or suggesting
locations or means of device installation, but, absent gross
negligence, shall not be responsible or liable to Customer for any
damage caused in the course of any installation, whether or not
conducted by Seller personal, a third party, or
Customer;
(f)
shall not be
responsible for any power or communication failures reasonably
outside the control of Seller (e.g. general power failure or
third-party telecommunications failure);
(g)
shall not be
responsible for the loss of any perishable or retail products
intended to be purchased sold by Customer; and
(h)
shall be
responsible for promptly and professionally working with Customer
to remedy any failures or errors in the Services that render the
Services inaccurate or unusable by Customer.
3.
This Agreement
shall not prevent Seller from entering into similar agreements with
third parties, or from independently developing, using, selling or
licensing documentation, products and/or services which are similar
to those provided under this Agreement, including to competitors of
Customer.
4.
Seller warrants
that it has and will maintain all necessary licenses, consents, and
permissions necessary for the performance of its obligations under
this Agreement.
CUSTOMER'S
OBLIGATIONS
The
Customer shall:
(a)
provide Seller with:
(i)
all necessary
cooperation in relation to this Agreement; and
(ii)
all necessary
access to such information, facilities, resources, and / or
personnel as may be required by Seller; to install and / or render
the Services;
(b)
comply with all
applicable laws and regulations with respect to its activities
under this Agreement;
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(c)
carry out all other
Customer responsibilities set out in this Agreement in a timely and
efficient manner. In the event of any delays in the Customer's
provision of such assistance as agreed by the parties, Seller may
adjust any agreed timetable or delivery schedule as reasonably
necessary;
(d)
ensure that the
Authorized Users use the Services and the Documentation in
accordance with the terms and conditions of this Agreement and the
Customer shall be responsible for any Authorized User’s
breach of this Agreement;
(e)
obtain and shall
maintain all necessary licenses, consents, and permissions
necessary for Seller, its contractors and agents to perform their
obligations under this Agreement, including without limitation the
Services;
(f)
be solely
responsible for damage caused to and replacement cost(s) of any
devices provided by Seller under this Agreement, presuming such
damage is not the result of normal wear and tear;
(g)
be solely
responsible for notifying Seller of any failures of any devices
required for or used in conjunction with the Services;
(h)
be responsible for
the shipping and handling costs of any devices that must be sent to
Seller;
(i)
be solely
responsible for any property, product, or equipment loss or damage,
lost profits, or any other harm, injury, or damage, that may result
from the use of or reliance upon Seller’s services;
and
(j)
allow Seller to
feature Customer in its marketing, promotional, and / or
advertising materials.
(i)
Customer may
decline, in writing, to be featured in Seller marketing,
promotional, and / or advertising materials at any time, including
the commencement of this Agreement, or any time in the
future.
Governing Policies
& Procedures
PROPRIETARY
RIGHTS
1.
The Customer
acknowledges and agrees that Seller and/or its licensors own all
intellectual property rights in the Services, devices and / or
software required for the provision of such Services, and the
Documentation. Except as expressly stated in this Agreement, this
Agreement does not grant the Customer any rights to, or in,
patents, copyrights, database rights, trade secrets, trade names,
trademarks (whether registered or unregistered), or any other
rights or licences with respect to the Services or the
Documentation, whether or not any of the foregoing was developed
with collaboration and or resources of Customer;
2.
Seller confirms
that it has all the rights in relation to the Services and the
Documentation that are necessary to grant all the rights it
purports to grant under, and in accordance with, the terms of this
Agreement.
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CONFIDENTIALITY
1.
Each party may be
given access to Confidential Information by the other party in
order to perform its obligations under this Agreement. A party's
Confidential Information shall not be deemed to include information
that:
(a)
is or becomes
publicly known other than through any act or omission of the
receiving party;
(b)
was in the other
party's lawful possession before the disclosure;
(c)
is lawfully
disclosed to the receiving party by a third party without
restriction on disclosure;
(d)
is independently
developed by the receiving party, which independent development can
be shown by written evidence; or
(e)
is required to be
disclosed by law, by any court of competent jurisdiction or by any
regulatory or administrative body.
2.
Each party shall
hold the other's Confidential Information in confidence and, unless
required by law, not make the other's Confidential Information
available to any third party, or use the other's Confidential
Information for any purpose other than the implementation of this
Agreement.
3.
Each party shall
take all reasonable steps to ensure that the other's Confidential
Information to which it has access is not disclosed or distributed
by its employees or agents in violation of the terms of this
Agreement.
4.
Neither party shall
be responsible for any loss, destruction, alteration or disclosure
of Confidential Information caused by any third party.
5.
The Customer
acknowledges that details of the Services, and the results of any
performance tests of the Services, constitute Seller's Confidential
Information and trade secrets.
6.
Seller acknowledges
that the Customer Data is the Confidential Information of the
Customer.
INDEMNITY
1.
The Customer shall
defend, indemnify and hold Seller, its officers, directors,
attorneys, accountants, agents, and employees harmless against any
and all claims, suits, proceedings, damages, judgments and expenses
(including costs and reasonable attorneys’ fees) or
settlement thereof to on the Customer's use of the Services and/or
Documentation. The Customer shall pay resulting costs, damages and
legal fees finally awarded against Seller in such action
that:
(a)
Seller promptly
(within twenty (20) days of receipt of such action) notifies
Customer in writing of any such claim;
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(b)
The Customer has
sole control of the defense, settlement and all settlement
negotiations related to such claim; and
(c)
Seller cooperates
with Customer, at Customer’s expense, in defending or
settling such claim.
2.
Seller shall
defend, indemnify and hold Customer, its officers, directors,
agents and employees harmless against any and all claims, suits,
proceedings, damages, judgments and expenses (including reasonable
attorneys’ fees) or settlement thereof to the extent based on
a third party claim that the Services as furnished within the scope
of this Agreement infringe any U.S. patent granted as of the
Effective Date, copyright, or trademark of such third party. Seller
shall pay resulting costs, damages and legal fees finally awarded
against Customer in such action that are attributable to such claim
provided that:
(a)
Customer promptly
(within twenty (20) days of receipt of such action) notifies Seller
in writing of any such claim;
(b)
Seller has sole
control of the defense, settlement and all settlement negotiations
related to such claim; and
(c)
Customer cooperates
with Seller, at Seller’s expense, in defending or settling
such claim.
3.
In the defense or
settlement of any claim, Seller may procure the right for the
Customer to continue using the Services, replace or modify the
Services so that they become non-infringing or, if such remedies
are not reasonably available, terminate this Agreement on 20
Business Days’ written notice to the Customer without any
additional liability or obligation to pay liquidated damages or
other additional costs to the Customer.
4.
In no event shall
Seller be liable to the Customer to the extent that the alleged
infringement is based on:
(a)
a modification of
the Services or Documentation by anyone other than Seller;
or
(b)
the Customer's use
of the Services or Documentation in a manner contrary to the
instructions given to the Customer by Seller; or
(c)
use of other than
the then-current, unaltered version of the Services or
Documentation, unless the infringing portion is also in the
then-current, unaltered version; or
(d)
the Customer's use
of the Services or Documentation after Seller has notified Customer
that Seller believes such use may result in
infringement.
5.
This Agreement
states the entire liability of Seller and the exclusive remedy of
Customer and Seller's (including Seller’s employees', agents'
and subcontractors’) entire obligations and liability, for
infringement of any patent, copyright, or trademark, whether under
theory of warranty, indemnity or otherwise.
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DISCLAIMER
OF WARRANTIES
THE
SERVICES AND DOCUMENTATION AND / OR DEVICES COVERED BY THIS
AGREEMENT ARE
DELIVERED
“AS IS” AND THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT ARE IN LIEU OF ALL
OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY, COMPLETENESS OF RESPONSES AND RESULTS, OF WORKMANLIKE
EFFORT, OF LACK OF VIRUSES, AND NON-INFRINGEMENT.
LIMITATION
ON LIABILITY
TO THE
FULLEST EXTENT ALLOWED BY LAW, BYOBITCOIN SHALL NOT BE LIABLE FOR
INDIRECT, SPECIAL,
INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS
AGREEMENT,
INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFIT OR LOSS OF USE, EVEN IF ADVISED
OF THE
POSSIBILITY
OF SUCH DAMAGES. THE LIABILITY OF BYOBITCOIN, REGARDLESS OF THE
BASIS OF THE
CLAIM,
FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL AMOUNT CUSTOMER HAS ACTUALLY PAID TO
BYOBITCOIN UNDER THIS AGREEMENT IN THE PRECEDING 12
MONTHS.
IT IS
UNDERSTOOD BY THE PARTIES THAT SOME STATES DO NOT ALLOW FOR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO THOSE SPECIFIC DAMAGES IF CONTRARY TO STATE
LAW.
TERM
AND TERMINATION
1.
Unless otherwise
terminated as provided in this clause 15, this Agreement shall
commence on the Effective Date and shall continue for the entire
Subscription Term as set forth in Exhibit B. Upon expiration of the
initial Subscription Term of three (3) months as described in
Section 9, this Agreement shall become terminable by Customer by
notifying Seller, at least 30 days in advance of the closure of the
next Subscription Term, of Customer’s desire to terminate
this Agreement.
2.
Without prejudice
to any other rights or remedies to which the parties may be
entitled, either party may terminate this Agreement without
liability to the other if the other party commits a material breach
of any of the terms of this Agreement and (if such a breach is
remediable) fails to remedy that breach within fifteen (15) days of
that party being notified in writing of the breach.
3.
On termination of
this Agreement for any reason:
(a)
all licenses
granted under this agreement shall immediately
terminate;
(b)
each party shall
make no further use of any equipment, property, Documentation and
other items (and all copies of them) belonging to the other
party;
(c)
Seller may destroy
or otherwise dispose of any of the Customer Data in its possession
unless Seller receives, no later than ten (10) days after the
effective date of the termination of this
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Agreement, a
written request for the delivery to the Customer of such data. The
Customer shall pay all reasonable expenses incurred by Seller in
returning or disposing of Customer Data; and
(d)
following
termination of this Agreement, the provisions of the Agreement
regarding payment, termination, ownership, confidentiality,
warranties, indemnity, limitation of liability, and governing law
shall survive and remain in full force and effect.
FORCE
MAJEURE
Seller
shall have no liability to the Customer under this Agreement if it
is prevented from or delayed in performing its obligations under
this Agreement, or from carrying on its business, by acts, events,
omissions or accidents beyond its reasonable control, including,
without limitation, strikes, lock-outs or other industrial disputes
(whether involving the workforce of Seller or any other party),
failure of a utility service or transport or telecommunications
network, act of God, war, riot, civil commotion, malicious damage,
vandalism, cosmic events, seismic events, flood or any weather
phenomenon, stampede, compliance with any law or governmental
order, rule, regulation or direction, accident, breakdown of plant
or machinery, fire, flood, storm or default of suppliers or
subcontractors, provided that the Customer is notified of such an
event and its expected duration.
ENTIRE
AGREEMENT
1.
This Agreement and
the attached Exhibits and prefatory statements constitute the
entire agreement between the Parties with respect to the subject
matter of this
Agreement
and supersede all prior and contemporaneous agreements or
communications. This
Agreement
may be modified by Seller at its discretion; in
the
event that this Agreement is modified, Customer will be notified
and is deemed to have accepted such modifications by continuing use
of the Services. In the event of a conflict between the terms and
conditions of this Agreement and the terms set forth in the
attached schedules or exhibits, the terms and conditions of this
Agreement shall prevail. No waiver of any breach of any provision
of this Agreement shall constitute a waiver of any prior,
concurrent or subsequent breach of the same or any other provisions
of this Agreement, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving
party. This Agreement may not be assigned by Customer without
Seller’s prior written consent. No waiver of any breach shall
be effective unless contained in a writing signed by both parties.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original for all purposes, and together
shall constitute one and the same agreement. All notices given
under this Agreement shall be sent to the Parties at the respective
addresses set forth on the signature page.
NO
PARTNERSHIP OR AGENCY
Nothing
in this agreement is intended to or shall operate to create a
partnership between the parties, or authorize either party to act
as agent for the other, and neither party shall have the authority
to act in the name, or on behalf, of or otherwise to bind the other
in any way (including, but not limited to, the making of any
representation or warranty, the assumption of any obligation or
liability and the exercise of any right or power).
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GOVERNING
LAW AND JURISDICTION
This
Agreement shall be governed and construed in accordance with the
laws (excluding the conflicts of laws rules) of the State of Texas.
The Customer agrees to and irrevocably submits to the exclusive
jurisdiction of any federal or state court located within Travis
County, Texas over any dispute arising out of or relating to this
Agreement, and the Parties irrevocably agree that all claims in
respect of such dispute or any suit, action proceeding related
thereto may be heard and determined in such courts. The Customer
irrevocably waives, fully permitted by applicable law, any
objection which it may now, or hereafter, have to the laying of
venue of any such dispute brought in such court or any defense of
inconvenient forum for the maintenance of such dispute. The
Customer agrees that a judgment in any such dispute may be enforced
in other jurisdictions by suit on the judgment or in any other
manner provided by law. Notwithstanding the foregoing, the parties
to this Agreement agree that any controversy or claim arising out
of or relating to this contract, or the breach thereof, shall be
settled by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, including the
Optional Rules for Emergency Measures of Protection. The number of
arbitrators shall be three (3). The place of arbitration shall be
Austin, Texas. Texas law shall apply. Judgment on the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
TAXES
Except
as set forth in this Agreement, Customer shall make all payments of
fees to Supplier under this Agreement without deduction or
withholding for any sales, use, gross receipts, excise,
value-added, business, consumption, services, goods and services,
income, personal property tax or other taxes (each individually
referred to as "Tax"), except to the extent that any such deduction
or withholding is required by applicable law or treaty. Each party
shall be responsible for taxes based on its own income, employment
taxes of its own employees and for taxes on any property it owns or
leases. If any taxing authority imposes a VAT, GST, sales, use,
service, consumption, business or similar Tax (excluding those
based on Supplier's real, personal or intangible property (whether
owned or leased), corporate structure, franchise, continuing
business operations, income, gross receipts, capital stock, net
worth or imposed with respect to Supplier's engagement of employees
or independent contractors), upon the Services or deliverables,
then Customer agrees either to pay that amount if specified in a
valid invoice or to supply exemption documentation.
GOVERNMENT
Equipment,
product, and software and documentation related thereto accessed
with United States
Government
funds or intended for use within or for any United States federal
agency are provided with RESTRICTED RIGHTS in accordance with
Federal Acquisition Regulation 52.227.19 or as set forth in the
department or agency regulations or rules of particular contract
which provides Seller and its suppliers equivalent or greater
protection.
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