Mineology Service Agreement
×1. Sale of hardware
1.1 Order of Hardware: The Customer shall place an Order through Site or through other methods accepted by Mineology, and such Order shall constitute an irrevocable offer to purchase specific Hardware from either Mineology or a Third-Party Seller as such Hardware and seller is specified in the Purchase Order. Each Purchase Order shall be subject to the terms of this Agreement, which will be incorporated therein by reference
1.2 Purchase Price: Customer will pay Mineology the Purchase Price. The Customer must pay the entire balance of the Purchase Price prior to the Hardware transferring title to the Customer. If the manufacturer of the Hardware issues any coupons for the Hardware, Mineology will pass coupons directly onto the Customer by applying any discount from the coupon to Purchase Price. Customer shall be responsible for all state sales and use tax.
1.3 Payment: Customer shall pay the Purchase Price in any accepted currency stated at checkout. Mineology is under no obligation to reserve the Hardware for the Customer and will be able to freely sell the Hardware to another party until full payment is received according to the Purchase Order. If Mineology is unable to deliver the Hardware for any reason, Mineology will return the entire Purchase Price to Customer. Under no circumstance will any billing error affect the Customer’s obligation to pay the Purchase Price to Mineology. Customer expressly authorizes to place and, upon payment in full of the Purchase Price, pay for such order. EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, CUSTOMER ACKNOWLEDGES THAT MINEOLOGY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
1.4 No Refunds, Returns or Exchanges: The Customer acknowledges and confirms that the Order is irrevocable and cannot be canceled by the Customer, and that the product(s) and Hardware ordered from Mineology are not returnable, refundable or exchangeable. All sums paid by the Customer to Mineology shall not be subject to any abatement, set-off, claim, counterclaim, adjustment, reduction, or defense for any reason. Down payment and payment of the total Purchase Price are not refundable, except only as expressly set forth in Section 6.1 hereof. Refund requests based on shipment delay WILL NOT be accepted if delay is caused by the manufacturer or any third party, including but not limited to the carrier, customs, or import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise, for any failure, delay or error in delivery of the Hardware for any reason whatsoever. Further, unless otherwise agreed in writing by Mineology, upon arranging for delivery of the Hardware to Customer directly or to a non-Mineology hosting facility, such Hardware is ineligible for hosting at a Mineology Hosting Facility or for any returns, refunds or exchanges. Except with respect to transactions on the Mineology Marketplace, Mineology will not facilitate private sales of Hardware. Mineology cannot and does not guarantee any proposed sales or transfers of Hardware, unless conducted directly through the Mineology Marketplace, as Mineology cannot otherwise ensure proper transfer of Hardware, ensure privately owned Hardware specifications and function, or other details of any proposed transaction.
2. Delivery
2.1 Shipment: Shipment shall be delivered duties paid (“DDP”). Customer agrees that the Delivery Date is an estimate only and may be changed. Mineology will use commercially reasonable efforts to cause the Hardware to be shipped in accordance with the Delivery Dates. However, Mineology shall not be liable for failure to ship the Hardware as estimated. Mineology shall not be responsible for any delivery delay caused by the Customer, Manufacturer, or any third party, including but not limited to acarrier, customs, or import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise, for any failure, delay or error in delivery of the Hardware for any reason whatsoever.
2.2 Delivery Point: Hardware purchased through Mineology, if designated by Customer, may be delivered to a Hosting Facility operated by Mineology for provision of Hosting Services, Mineology’ agents, or a third party for hosting. Customer may also have Hardware delivered to a different Delivery Point where Mineology Hosting Services will not be used. If Customer fails to provide Mineology with the delivery place or the delivery place provided by Customer is a false address or does not exist, or the Purchaser rejects the Hardware, Customer shall bear any related costs incurred (including storage costs, warehousing charge and labor costs). Mineology may issue the Customer a notice of self-pick-up and ask the Customer to pick up the Hardware itself. Mineology shall be deemed to have completed the delivery obligation under this Agreement after 2 Business Days following the issue of the self-pick-up notice. After 30 days of the self-pick-up notice, Mineology shall be entitled to dispose of the Hardware in any manner as it deems appropriate, including selling the same to another purchaser. In the event that the Customer elects to take delivery of the Hardware or instructs that Mineology deliver the Hardware to a non-Mineology approved and operated facility, then the Customer may not employ the Mineology Hosting Services for such Hardware. When Hardware is delivered to a non-Mineology approved and operated facility, Customer shall be solely responsible for the installation, maintenance and operation of the Hardware and Mineology has no further obligations whatsoever.
2.3 Cancellation or Modification: Customer may not modify, terminate, cancel, or otherwise alter orders, or defer shipment, after acceptance of the order from Mineology without the written consent of Mineology, which may be withheld or conditioned in Mineology’ sole discretion.
3. TERM AND TERMINATION
3.1 Term: This Agreement will be effective upon the Customer’s initiation of payment during the checkout process.
3.2 Termination: This Agreement shall remain effective up to and until the delivery of the last Hardware.
4. REPRESENTATIONS AND WARRANTIES
4.1 Authority and Capacity: Each party represents, warrants, and covenants that (i) it has full legal capacity, right, power and authority to execute and perform its obligations under this Agreement; and (ii) its performance of obligations hereunder will not violate any applicable laws or require the consent of any third party.
4.2 Title to Customer Hardware and Receipt of Mining Rewards: Customer represent, warrant and covenant that (i) Customer has clear title, free and clear of all security interests or liens, to Customer Hardware, including the legal right to use, operate and locate the Customer Hardware; and (ii) its receipt of Mining Rewards will not violate any applicable laws or require the consent of any third party.
4.3 Accuracy of Customer Information: Customer represents and warrants that: (i) the information Customer has provided for the purpose of establishing an account with Mineology is true, accurate, current and complete; and (ii) Customer will maintain and promptly amend all information and material to keep it true, accurate, current and complete
5. LIMITATIONS OF LIABILITY
5.1 Force Majeure: Mineology shall not be liable (beyond return of the entire Purchase Price pursuant to this Section) for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any Force Majeure Event. The time for performance shall be extended for a period equivalent to the delay resulting from the Force Majeure Event. If, by reason of a Force Majeure Event, Mineology’ supply of Hardware shall be insufficient to meet all requirements, including its own, Mineology shall have the right, at its option, and without liability, to allocate its available supply of Hardware among its present and future customers in such a manner as Mineology deems equitable so long as Customer receives a return of a portion of the Purchase Price for any Hardware not delivered as a result of such allocation. If by reason of a Force Majeure Event, the cost of Hardware exceeds the Purchase Price, Mineology shall have the right, at its option, to terminate such transaction without liability to Mineology; provided that upon termination pursuant to this section, Mineology shall refund the entire Purchase Price to Customer. Notwithstanding the foregoing, a Force Majeure Event shall not provide means to delay any payment of the Purchase Price by Customer.
5.2 WARRANTY DISCLAIMER: Mineology represents and warrants that (i) the Hardware shall be in good working order when the same is delivered to the Customer and (ii) Mineology and/or the seller of the Hardware is able to deliver good and marketable title to the Hardware to the Customer and (iii) the seller of the Hardware is reputable and has not used the Hardware for any illegal, dishonest or nefarious purpose. Except as provided above, Customer hereby acknowledges and agrees that Mineology makes no additional representation or warranty with respect to the condition of the Hardware. MINEOLOGY EXPRESSLY DISCLAIMS ALL AND MAKES NO WARRANTIES WITH RESPECT TO ANY HARDWARE AND/OR SERVICES PROVIDED HEREUNDER, EXCEPT AS PROVIDED HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5.3 Limitation of Actions: EXCEPT IN THE EVENT OF FRAUD, NEGLIGENCE, WILLFUL MISCONDUCT OR THE BREACH OF A REPRESENTATION OR WARRANTY IN THIS AGREEMENT, NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL, MULTIPLIED, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO AGREEMENT, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
5.4 Inspections and Returns: The Hardware may be covered under warranty by the Manufacturer. The Customer shall return or undergo the warranty process with the Manufacturer at Customer’s sole expense, and follow such Manufacturer’s return/replacement/repair policy with respect to any such defective Hardware. Customer acknowledges and agrees that, in the event Customer seeks any type of refund, replacement, and/or repair, Customer shall seek such refund, replacement, and/or repair directly from the Manufacturer. Mineology shall not be under any obligation to replace/return the defective Hardware or deal with Manufacturer with respect to any such defective Hardware.
5.5 Idemnification by Mineology: Mineology covenants and agrees to indemnify and hold harmless Customer from any and all costs, expenses, losses, damages and liabilities incurred or suffered, directly or indirectly, by Customer (including, without limitation, reasonable legal fees and costs) resulting from any third party claim alleginga breach of, or misstatement in, any one or more of the representations and warranties of Mineology made in or pursuant to this Agreement.
5.6 Idemnification by Customer: Customer covenants and agrees to indemnify and hold harmless Mineology and its officers, directors, stockholders, employees, agents, representatives and each of their successors and assigns (each a “Mineology Indemnified Party”) from any and all costs, expenses, losses, damages and liabilities incurred or suffered, directly or indirectly, by any Mineology Indemnified Party (including, without limitation, reasonable legal fees and costs) resulting from or attributable to (a) a breach of, or misstatement in, any one or more of the representations, warranties, obligations or covenants of Customer made in or pursuant to this Agreement; (b) the failure by Customer to pay any and all costs, taxes, customs, duties, tariffs, and the like arising from the transactions set forth in this the Agreement, (c) any act or omission of the Customer, or (d) ownership or operation of the Hardware by Customer.
6. CONFIDENTIALITY
6.1 General: Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is Confidential Information of the other party. Neither party may use, disclose, or copy any Confidential Information except to the limited extent necessary to perform its obligations under this Agreement and will not disclose any Confidential Information to any person or entity other than to those persons who have a need to know the Confidential Information or as otherwise expressly permitted by this Agreement. Each party shall use the same measures that it uses to protect its own most confidential and proprietary information to protect the Confidential Information, but in no event less than commercially reasonable measures.
6.2 Return of Confidential Information: Upon termination or expiration of this Agreement, or at any other time at the request of the other party, each party shall return to the other party, or destroy and delete, as applicable, all Confidential Information and any copies thereof in its possession or control.
6.3 Privacy: Mineology warrants and represents that, Mineology shall comply with all applicable privacy laws throughout the Term, and will take all reasonable steps within Mineology’ power to ensure that Mineology’ employees, contractors and other customers comply with all applicable privacy laws.
6.4 Mineology Proprietary Information: Except for the rights expressly granted herein, all rights, titles, and interests to any and all customer relationships, proprietary rights and intellectual property rights in Mineology’ data will remain with and be the exclusive property of Mineology.
6.5 Government Inquiries and Investigations: Mineology may cooperate with any government or legal investigation regarding any aspect of the Hardware purchased herein or any Hosting Services provided to Customer, which may include producing identifying information of Customer.
7. DEFINITIONS
7.1 “Business Day” means any day other than Saturday, Sunday, or U.S. federal holiday.
7.2 “Confidential Information” refers to confidential or proprietary information of a party including, without limitation, business plans, strategies, forecasts and projections and information about business structures, operations, systems, finances, assets, investments, investment strategies, software and other technology systems, and personnel, customers and suppliers. Confidential Information does not include if it (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
7.3 “Delivery Date” refers to the date at which the Hardware is scheduled to be delivered to the Customer or the hosting location that the Customer instructs Mineology to arrange the Hardware to be shipped.
7.4 “Force Majeure Event” means a failure by the other party to perform any of its obligations under this Agreement, if such failure is caused by events or circumstances beyond its reasonable control, including, without limitation, acts of God, war, labor strike, terrorist act, fire, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, inclement weather, health epidemic or any law, order, regulation, seizure or other action of any governing authority or agency. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
7.5 “Hardware” refers to the cryptocurrency mining hardware belonging to the Customer and specified in the Order Summary Page.
7.6 “Hosting Facility” or “Hosting Partner” means a data center owned, leased, operated or reserved by Mineology or Mineology partners through the Site.
7.7 “Hosting Service” refers to services provided to Customer, if selected, by Mineology to arrange shelf and/or rack space, sufficient electrical capacity at the required voltage and wattage, provision of electricity, monitoring and services (according to section 3.2) of Customer Hardware to achieve the Service Level (i.e., standard fixes, basic repairs or Hardware resets), and support from Mineology Mining Concierge Team.
7.8 “Losses” means all damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees.
7.9 “Manufacturer” means the party that created the Equipment as reflected in the Purchase Order.
7.10 “Purchase Order” means a written purchase order issued by Mineology to the Customer for the Customer Hardware.
7.11 “Purchase Price” means the total purchase price for the Hardware as reflected in the Purchase Order, including purchase price, import duties, tariffs, duties, shipping and insurance costs.
7.12 No Restrictions Against Mineology: Customer hereby acknowledges and agrees that Mineology may sell any inventory, equipment, machinery, or other products, not specified in Purchase Order hereto to any party pursuant to any terms and conditions agreed to by Mineology and nothing in this Agreement shall restrict Customer from the same.