Netsonic ASIC Hosting Service Agreement and Terms of Service
This Netsonic Hosting Service Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Hosting Service (as defined below) and is an agreement between Netsonic (“Netsonic,” “we,” “us,” or “our”) and the customer identified on the signature page (“Customer,” “you,” or “your”). This Agreement takes effect when you sign this Agreement (the “Effective Date”). Customer represents to Netsonic that Customer is lawfully able to enter into contracts (e.g., Customer is not a minor). If Customer is entering into this Agreement for an entity, Customer represents to Netsonic that Customer has legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
1 HOSTING SERVICE
1.1 Hosting Arrangement. Netsonic shall provide for the hosting of Customer Hardware at the Netsonic hosting facility. As part of the Hosting Service, Netsonic shall provide for or 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 Customer Hardware resets), and support from Netsonic Hosting Team. Netsonic reserves the right to switch the Hosting Facility to a like facility that is in the same region and at a cost that is equal to or less than the Hosting Service Fee. Netsonic reserves the right to provide the Hosting Service directly or through agents, vendors and qualified third parties. Customer acknowledges and agrees that Netsonic may procure products, services and facilities from, and subcontract the provision of the Hosting Service to, third party providers and subcontractors, including, without limitation, any Hosting Partner.
1.2 Service Level. Netsonic shall use commercially reasonable efforts to make the Hosting Service available to Customer ninety five percent (95%) of the time each month (the “Service Level”), except in the event of maintenance of the Hosting Facility and its associated infrastructure, Customer Hardware failure, or Force Majeure Events. Netsonic does not guarantee that the Hosting Service will not be interrupted by outages or shortages of power which are planned or unplanned and outside of Netsonic’s control, and Netsonic will not be liable for the foregoing. Netsonic does not guarantee the supply of electricity during the winter, summer or peak hours of the day. There is a possibility of voluntary or involuntary downtime, curtailment by Netsonic, the Hosting Facility or the Hosting Facility’s energy provider, or outages or shortages of power. Netsonic shall not be responsible for the consequences of such outages, except as expressly stated herein. Notwithstanding the foregoing, Customer acknowledges that Netsonic and the Hosting Facility participate in various Demand Response / Load Resource Shedding Program (“LRSP Program”), and that the LRSP Program is designed to maintain the integrity of the local grid system. Accordingly, the LRSP Program provides the local grid operator with the capability to shut off the power load serving Netsonic’ customers in response to emergency load situations. Such occurrence shall be deemed to constitute a Force Majeure Event.
1.3 Service Order. The Customer acknowledges and agrees that certain terms of the Hosting Service, including the Hosting Facility, the hosting price per kilowatt-hour or per watt, as well as the estimated online date (i.e., commencement of mining operations) are as specified in the order summary page if purchased on the Netsonic Site (https://cbill.netsonic.net/) , or contained in the Service Order hereto. The Order Summary Page shall be deemed to be agreed by the Customer through the checkout process or through the duly executed copy of this Agreement and an accompanying Order Summary Page by the authorized representative of each party.
2 CUSTOMER HARDWARE AND DELIVERY
2.1 Delivery to Hosting Facility. Customer Hardware may require shipping and delivery to the Hosting Facility from the hardware manufacturer or a third-party distributor or reseller. In such cases, Netsonic shall provide for the delivery of the Customer Hardware to the Hosting Facility designated in the Order Summary Page if purchased on the Netsonic Site (https://cbill.netsonic.net/), or contained in the Service Order hereto, and shall make reasonable efforts to ensure operation by the estimated commencement date.
2.2 Inspection and Installation. Netsonic or its Hosting Partner will inspect the Customer Hardware for suitability of hosting and has full discretion to accept or reject any Customer Hardware. Upon receipt, inspection and confirmation that Customer Hardware is fully functioning, Netsonic shall provide for the installation of Customer Hardware at the Hosting Facility.
2.3 Operation and Start Date. Netsonic shall make commercially reasonable efforts to commence operation of Customer Hardware on the scheduled Hosting Service commencement date reflected in the Order Summary Page if purchased online, or contained in the Service Order attached or incorporated by reference; provided however, that Netsonic shall not be responsible for any delay in operation of Customer Hardware for any reason, including delay in receipt of Customer Hardware, Force Majeure Events, lack of available rack space, Hosting Facility electrical or network connectivity problems, or loss of power due to the Transmission/Distribution network.
2.4 Serial Numbers. If requested by Customer, Netsonic shall provide Customer with the serial number for each machine included.
3 HOSTING FACILITY MAINTENANCE AND CUSTOMER HARDWARE REPAIRS
3.1 Facility Maintenance. Netsonic, its Hosting Partners and operators of the Hosting Facility shall be entitled to perform maintenance and any actions as deemed necessary or desirable by Netsonic or its agents with respect to the Hosting Facility and to maintain the network. Customer acknowledges and agrees that performance of such maintenance may cause the network to be temporarily inaccessible and the Customer Hardware may experience temporarily down-time or unavailability. Netsonic and its Hosting Partners shall use commercially reasonable efforts to conduct such Maintenance in a manner so as to avoid or minimize the unavailability of the Hosting Service. If a scheduled Maintenance is expected to interrupt the availability of Hosting Service, Netsonic may give Customer notice by email and/or posting at on the Netsonic status page located at https://cbill.netsonic.net/ prior to conducting such Maintenance, identifying the time and anticipated duration. Additional notifications will be made within the portal at https://cbill.netsonic.net/
3.2 Hardware Maintenance and Repair. Netsonic, its Hosting Partners and the operators of the Hosting Facility shall be entitled to perform maintenance and any actions as deemed necessary or desirable with respect to Customer Hardware. To the extent that simple repairs cannot be performed without passing costs for parts and labor onto the Customer, the Customer will be notified of an estimated cost and timeline for Customer Hardware repairs to be completed. Netsonic will make reasonable efforts to repair Customer Hardware on-site, but may require Customer Hardware to be shipped to the manufacturer or a third-party for critical repairs. Customer Hardware sent to the manufacturer for repair may be fully covered under a standard manufacturer warranty, but shipping costs will be paid at the Customer’s expense. If the Customer does not agree with repair options or costs, the Customer has the right to cancel this Agreement and have its Customer Hardware shipped to it and at its expense. If Customer does not respond to options for repair provided by Netsonic within fifteen (15) days, Netsonic reserves the right to cancel the Agreement.
3.3 Relocation. Netsonic or Hosting Partner may, from time to time, relocate Customer Hardware within the Facility or to another facility upon prior written notice to Customer, provided that the site of relocation shall afford reasonably comparable environmental conditions for Customer Hardware and pricing is no more expensive than contained herein. Should Netsonic or Hosting Partner need to relocate Customer Hardware to another Hosting Facility, Netsonic shall provide Customer ten (10) days’ prior written notice and Customer will have five (5) days to approve, such approval not to be unreasonably withheld, delayed or conditioned. If Customer does not approve such relocation within the timeframe established, it shall be deemed acceptance of the relocation to another Hosting Facility. If Customer objects to such relocation during the 5-day period, the Parties shall work together in good faith to resolve the objection as quickly as possible. If the Customer Hardware is relocated according to this Section 3.3, the cost of relocating the Customer Hardware shall be borne solely by Netsonic and/or the Hosting Facility provider.
3.4 Hardware Maintenance and Repair. Notwithstanding Section 3.3, in the event of an emergency, as determined in Netsonic’ or Hosting Facility’s reasonable discretion, Netsonic and/or Hosting Facility may rearrange, remove, or relocate Customer Hardware without any liability to Netsonic. Notwithstanding the foregoing, in the case of emergency, Netsonic shall provide Customer, to the extent practicable, reasonable notice prior to rearranging, removing, or relocating the Customer Hardware.
4 HOSTING SERVICE FEE AND CUSTOMER RESPONSIBILITY
4.1 Delivery and Installation of Customer Hardware. Any costs for the installation, mounting, and unmounting of Customer Hardware and all tariffs, taxes, shipping costs, or other expenses associated with shipping, importing, exporting, and transporting Customer Hardware to the Hosting Facility shall be reflected in the Order Summary Page if purchased on the Netsonic Site (https://cbill.netsonic.net/) or contained in the Hosting Services Supplement below, if relevant.
4.2 Selection of Mining Pool. Customer shall timely provide Netsonic the mining pool it seeks to join. Customer is at all time responsible for the selection of the mining pool and for monitoring pool performance and instructing Netsonic to make any changes to the mining pool Customer seeks to use. Customer will comply with any process established by Netsonic for establishing addresses, changes to addresses, and changes to the allocation of hashpower which will include secondary verifications and multiple approvals. Customer will give Netsonic at least 2 Business Days’ notice of any change in addresses or pool location. Customer shall pay a cost for labor, solely determined by Netsonic in good faith, for any excess changes of pools or addresses.
4.3 Private Key and Wallet Security. Customer shall at all times be responsible for maintaining software and all other telecommunications, Internet access and related equipment required to receive Customer’s mining rewards. Customer is solely responsible for the security of Customer’s private keys. Customer shall hold Netsonic harmless from breaches of user or access security with respect to any of Customer Hardware or the Hosting Facility. Netsonic does not provide any service to detect or identify any security breach of Customer Hardware or the Hosting Facility. Netsonic does not provide any tests employing tools and techniques intended to gain unauthorized access to Customer Hardware or Customer’s personal property.
4.4 Netsonic Account Security. Customer shall maintain the security of passwords for its Netsonic account. Customer shall notify Netsonic if Customer suspects its Netsonic account has been hacked, stolen, accessed without authorization, or otherwise compromised. If Netsonic suspects any security violations have occurred related to Customer’s Netsonic account, Netsonic may suspend access to Customer’s account and Customer Hardware pending resolution.
4.5 Maintenance. Customer may be required to purchase from Netsonic other equipment, accessories, software, or hardware, such as power cords (“Required Purchase”), to ensure compliance with the technical and fire safety norms at the Hosting Facility. Customer shall be notified about and approve of any Required Purchase in advance. If Customer does not approve of a Required Purchase within fifteen (15) days of being notified of such Required Purchase, Netsonic may terminate the Agreement and have the Customer Hardware returned to Customer at Customer’s expense.
4.6 Return of Customer Hardware. Customer may request upon the expiration or termination of this Agreement, for Netsonic to return any and all Customer Hardware, unless Customer is in default of payment. All fees, taxes and handling costs and risk of loss during shipping shall be borne by the Customer. If Customer does not provide return directions and a prepaid shipping label within fifteen (15) days of termination or expiration of this Agreement, Netsonic shall be entitled to dispose of Customer Hardware. Hardware being returned will be be shipped within fifteen (15) business days of notice. Netsonic will not be responsible for any damage or operation deficiency of Customer Hardware and Netsonic will not repair or reimburse Customer in any form.
4.7 Interference. If at any time Customer Hardware causes unacceptable interference to other Netsonic or Hosting Partner customers or their equipment, Netsonic or Hosting Partner may remove or relocate Customer Hardware inside the Hosting Facility at Customer's sole expense, after providing written notice to Customer. If such relocation fails to cure such interference, Netsonic may terminate this Agreement without further obligation to Customer under this Agreement.
4.8 Modification and/or Overclocking. Customer shall notify and obtain prior written approval from Netsonic before any Customer Hardware containing modifications, alternations, firmware adjustments or overclocking (“Modified Equipment”) and that might cause such Customer Hardware’s performance to deviate from the standard and/or factory specifications as delivered to the Hosting Facility. If Netsonic and/or Hosting Partner determines that any Customer Hardware has been altered or modified without prior written approval (“Non-Compliant Equipment”), Netsonic and/or Hosting Facility reserves the right to immediately suspend Services to such Non-Compliant Equipment and/or invoice Customer for Netsonic and/or Hosting Facility incremental cost from such Non-Compliant Equipment, which calculation will be solely determined by Netsonic and/or Hosting Facility and will be final and immediately payable by Customer. Additionally, Customer will be subject to a Non-Compliant Equipment fee equal to 50% of the Hosting Service Fees, which will be applied to each month the Customer Hardware was deemed to be a Non-Compliant Equipment.
5 PAYMENT TERMS AND TAXES
5.1 Hosting Service Fee. Netsonic calculates and bills fees and charges monthly in advance. The Hosting Service Fee is based on the actual power consumption capability of Customer Hardware and the location of the Hosting Facility based on the Projected Hosting Service Fee in advance and in no case later than the invoice due date of the upcoming month of service. If Customer’s actual power consumption for the upcoming month is higher than the Projected Hosting Service Fee, an invoice will be issued and Customer agrees and undertakes to promptly pay any difference within five (5) Business Days of receiving such invoice. If the Hosting Facility incurs downtime during a billing period, you will receive a prorated credit on your bill based on the amount of time the Hosting Facility was offline, subject to the limitations contained herein. For example, in the unlikely scenario where the Hosting Facility is offline for half of the month and the hosting rate is $200/month, your credit would be $100. The balance shall be credited to the Projected Hosting Service Fee within sixty (60) days of the close of the given month. The Parties agree that Fees not disputed prior to the date of payment or due date shall be conclusively deemed accurate.
5.2 Payment Terms. Acceptable forms of payment include credit card, debit card, bank wire, paypal and cryptocurrency. Netsonic may, in its exclusive discretion, modify the acceptable forms of payment from time to time. For credit card and debit card payments, Netsonic keeps your account information on file and sets up recurring billings for Hosting Service Fee, unless Customer expressly opts out of the recurring billings. Initial service payment will include the first month and last month of service in the invoice. Payments of Projected Hosting Service Fees for the upcoming month will be automatically deducted from Customer’s account on or before the due date of the invoice for the upcoming month of service. If Customer elects to pay with cryptocurrency, Netsonic will invoice Customer in U.S. Dollars for the Projected Hosting Service Fee no later than the 10 days prior for the upcoming month. Customer shall deliver the designated cryptocurrency in the amount equal to the invoice due amount into the Netsonic’s digital wallet by 5:00 p.m. (Central Standard Time) on the due date of the invoice. The exchange rate shall be the last traded price for such cryptocurrency to U.S. Dollars exchange transaction at the time of payment. In the event any refund of payments made in cryptocurrency becomes due to Customer, the amount of such refund shall be calculated in U.S. Dollars without regard to any change in cryptocurrency valuation.
5.3 Deposit. Customer shall deliver to Netsonic, or Netsonic will deduct from Customer account if Customer does not opt out of the automatic bill payment, a deposit for Projected Hosting Service Fee (“Deposit”). Such Deposit shall be included in the initial checkout along with payment for any hardware that Customer purchases from Netsonic. If Customer fails to pay any Hosting Service Fee, Netsonic may use, apply or retain all or any portion of the Deposit for the payment of any amount due or to reimburse or compensate Netsonic for any liability, expenses, loss or damages which Netsonic may suffer or incur by reason thereof. If Netsonic uses or applies all or any portion of the Deposit, Customer shall within ten (10) days after written request thereof deposit money with Netsonic sufficient to restore the Deposit to the full amount required by this Agreement. Within thirty (30) days after the expiration or termination of this Agreement, unless Netsonic elects to apply Deposit to unpaid Hosting Service Fee, Netsonic will return the portion of the Deposit not used or applied. No part of the Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any Hosting Service Fee to be paid by Customer under this Agreement.
5.4 Payment Due Date. Time is of the essence in the payment of each and every invoice. For any overdue invoices, Netsonic may (i) terminate the Hosting Service, (ii) seize and dispose of or sell the Customer Hardware and use the proceeds to satisfy any amounts due; (iii) reconfigure Customer Hardware and retain for Netsonic’ use and redirect mining proceeds to Netsonic’ wallet; or (iv) turn off Customer Hardware, and/or disable Customer’s access to accounts until all fees due to Netsonic are paid in full. Without limiting the foregoing, Netsonic reserves the right to charge a daily penalty at one percent (1%) of the overdue amount until the payment is settled and take possession of the Customer Hardware and redirect mining proceeds to Netsonic’s wallet until the overdue invoice and interest are paid in full. Netsonic shall have all the rights and remedies of a secured party under the Uniform Commercial Code and other applicable laws with respect to all collateral in which it has a security interest, such rights and remedies being in addition to all of its other rights and remedies provided for herein. Netsonic may sell or cause to be sold any or all of such collateral, in one or more sales, at such prices and upon such terms as it may deem best, and for cash or on credit or for future delivery, without its assumption of any credit risk, and at a public or private sale as it may deem appropriate.
5.5 Hosting Service Fee Adjustment. Netsonic reserves the right to provide written notice to modify its rates upon a material increase in any of Netsonic’ or its Hosting Partner’s operating costs, including without limitation, power rates, leasing rates, tax rates and/or increased regulatory compliance costs. Upon receipt of a notice of rate increase, Customer may within fifteen (15) days thereafter elect to terminate the Hosting Service by providing Netsonic with a notice of termination that will occur no later than thirty (30) days thereafter.
6 TERM, TERMINATION, MODIFICATION AND SUSPENSION
6.1 Term. Unless terminated sooner as provided in this Agreement or otherwise stated in a Service Order attached or incorporated by reference, the initial term of the Hosting Services provided under this Agreement shall begin on the Commencement Date and expire one (1) year thereafter (the “Initial Term”). The minimum hosting term is one (1) year/twelve (12) months. Upon expiration of the Initial term, this Agreement will renew automatically for successive one (1) year periods (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless Customer provides written notice to Netsonic of its desire to avoid the Renewal Term at least sixty (60) days in advance of the conclusion of the Initial Term or the then-current Renewal Term, as applicable.
6.2 Termination. Netsonic may terminate this Agreement for cause immediately following written notice if You: (i) fail to make any payments due pursuant to this Agreement or any other agreement you have entered into with Netsonic; (ii) violate, or fail to perform or fulfill any covenant or provision of this Agreement, and such breach is not cured within thirty (30) days after notification from Us; or (iii) enter into bankruptcy, financial failure or insolvency, sales or merger with another person, corporation or entity, unless approval in advance by Netsonic. Netsonic may also terminate this Agreement if the Hosting Facility for the Customer Hardware becomes unavailable for any reason; in such event, the termination shall be effective on the last day of the Hosting Facility’s availability and Netsonic shall provide Customer notice of termination without undue delay after learning of such unavailability. Without limiting the foregoing, either party may terminate or suspend all or a portion of the Agreement if necessary to be in compliance with applicable law, rules, regulations, administrative or judicial orders or decree. The terminating party will use commercially reasonable efforts to notify the other party, which may be via email or telephone, of such suspension. The parties agree that they will have no liability whatsoever to the other for any damage, loss, expense or cost as a result of such termination or suspension. Further, Netsonic may terminate the Agreement for convenience by providing Customer with a 30-day written notice. Notwithstanding anything to the contrary contained herein, Customer may only terminate the agreement if the Customer Hardware purchased by Customer from Netsonic has been fully paid and there are no outstanding payment plans or financing in place with Netsonic or any third party seller.
6.3 Effects of Termination. Upon termination or expiration of this Agreement, in the event of Customer’s default, Customer agrees to immediately pay to Netsonic all amounts then owed including all amounts owed through the term of any applicable Service Order. Netsonic will provide written notice of any funds owed. If Customer fails to make such payments within five (5) days, Netsonic shall have the right to (i) sell or retain possession of; (ii) reconfigure Customer Hardware and retain for Netsonic’ use and redirect mining proceeds to Netsonic’ wallet, or (iii) remove and store at Customer’s expense, all or any portion of Customer Hardware without any costs, obligation or liability by Netsonic. Customer acknowledges that the rights mentioned above may also be granted or otherwise assigned to any third party seller and/or Hosting Partner, or may be otherwise assigned by Netsonic. Any of the measures above can be used to recover Customer funds owed plus reasonable costs to facilitate the recovery of funds owed. If Netsonic or any third party seller and/or Hosting Partner recovers the Customer balance owed as a result of a Customer Hardware sale, Netsonic will return any additional funds above what is owed by the Customer within thirty (30) days. Netsonic shall have all the rights and remedies of a secured party under the Uniform Commercial Code and other applicable laws with respect to all collateral in which it has a security interest, such rights and remedies being in addition to all of its other rights and remedies provided for herein. Netsonic may sell or cause to be sold any or all of such collateral, in one or more sales, at such prices and upon such terms as it may deem best, and for cash or on credit or for future delivery, without its assumption of any credit risk, and at a public or private sale as it may deem appropriate. In addition, if Customer terminates this Agreement, Customer shall pay a termination fee equal to the total of the Hosting Fee owing for the remainder of the term of the applicable Service Order(s) (“Termination Fee”), along with any outstanding amounts owed to Netsonic for financed Customer Hardware.
7 SECURITY INTEREST
7.1 Security Interest. CUSTOMER HEREBY GRANT NETSONIC A FIRST PRIORITY SECURITY INTEREST IN ALL CUSTOMER HARDWARE AND ALL PROCEEDS FROM THE SALE OF SUCH CUSTOMER HARDWARE IN ORDER TO SECURE THE TIMELY PERFORMANCE OF THIS AGREEMENT AND CUSTOMER’S OBLIGATIONS FOR THE FINANCING OF SUCH CUSTOMER HARDWARE, IF APPLICABLE, INCLUDING TO SECURE THE PAYMENT OF ALL INVOICES, CHARGES AND COSTS, INCLUDING, WITHOUT LIMITATION, NETSONIC’ CONTRACTUAL OBLIGATIONS AND RESPONSIBILITIES FOR THE PURCHASE AND HOSTING OF THE CUSTOMER HARDWARE. FURTHERMORE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE PARTIES AGREE AND ACKNOWLEDGE THAT THE NETSONIC HOSTING PARTNER MAY ACQUIRE A SECURITY INTEREST IN THE CUSTOMER HARDWARE, BY WHICH THE HOSTING PARTNER MAY PLACE A LIEN ON, AND OTHERWISE ENCUMBER, THE CUSTOMER HARDWARE. THE PARTIES ACKNOWLEDGE THAT THE CUSTOMER HARDWARE IS AND AT ALL TIMES SHALL BE, AND BE DEEMED TO BE, SEPARATE, IDENTIFIABLE AND MOVEABLE PROPERTY OF THE CUSTOMER THAT DOES NOT FORM A PART OF, OR CONSTITUTE A FIXTURE TO, ANY HOSTING FACILITY. CUSTOMER AGREES TO ASSIST NETSONIC AND HOSTING PARTNER TO PERFECT ALL SECURITY INTERESTS GRANTED, INCLUDING, BUT NOT LIMITED TO, SIGNING ANY DOCUMENTS THAT NETSONIC AND/OR THE FINANCING PARTY DEEM REASONABLY NECESSARY, INCLUDING THE FILING OF A UCC 1 FINANCING STATEMENT. NETSONIC IS FREE TO ASSIGN ITS RIGHTS IN CONNECTION WITH THE SECURITY INTEREST.
8 REPRESENTATIONS AND WARRANTIES
8.1 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.
8.2 Title to Customer Hardware and Receipt of Mining Rewards. Customer represents, warrants and covenants that (i) Customer has clear title, free and clear of all security interests or liens, to Customer Hardware (except those granted to Netsonic or Hosting Partner, or in a separate agreement where Netsonic is a party), 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.
8.3 Accuracy of Customer Information. Customer represents and warrants that: (i) the information Customer has provided for the purpose of establishing an account with Netsonic 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.
8.4 FCPA; Anti-Bribery. In carrying out its responsibilities hereunder, each Party represents that it shall comply with all applicable anti- bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the territory. Each Party represents that it understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this Section 8.4, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Each Party represents and warrants that, in the performance of this Agreement, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and it will advise the other Party of any change in such representation; (ii) it and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) it will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) it agrees to indemnify, defend, and hold the other Party harmless for damages and expenses resulting from a violation of the foregoing by itself or its representatives.
8.5 OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), each Party may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Each Party certifies, represents and warrants that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the OFAC; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each Party hereby agrees to defend, indemnify and hold the other Party harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney fees and costs) arising from or related to any breach of the foregoing certification.
8.6Compliance with Laws. Customer represents and warrants that: (i) Customer will not use the Hosting Service for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, (ii) Customer shall not provide administrative access to the Hosting Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States export regulations, which include Cuba, Iran, and Sudan, and (iii) Customer are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons.
9 RISK FACTORS AND LIMITATIONS OF LIABILITY
9.1 Protocol Risk. Netsonic does not own or control any Digital Assets and does not own or control the underlying software cryptographic protocols of networks which govern the operation of any cryptocurrency. Netsonic is not responsible for the operation of the underlying protocols, and makes no guarantees regarding their security, functionality, or availability.
9.2 Network and Information Security Risk. Customer acknowledges and agrees that the use of telecommunications and data communications networks and the Internet may not be secure and that connection to and transmission of data and information over the Internet and such facilities provide the opportunity for unauthorized access to wallets, computer systems, networks and all data stored herein. Information and data transmitted through the Internet or stored on any equipment through which Internet information is transmitted may not remain confidential and Netsonic does not make any representation or warranty regarding privacy, security, authenticity, and non-corruption or destruction of any such information. Netsonic does not warrant that the Hosting Service or Customer’s use will be uninterrupted, error-free, or secure. Netsonic shall not be responsible for any adverse consequence or loss whatsoever to Customer’s use of the Hosting Service or the Internet. Use of any information transmitted or obtained by Customer from Netsonic is at Customer’s own risk. Netsonic is not responsible for the accuracy or quality of information obtained through its network, including as a result of failure of performance, error, omission, interruption, corruption, deletion, detect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of information or facilities, or malfunctioning of websites. Netsonic is also not responsible for any consequences of security incidents or breaches, including the loss or corruption of data, the unauthorized disclosure of data, or the unavailability of data.
9.3 As Is and No Warranty. NETSONIC MAKES NO WARRANTIES OR GUARANTEES RELATED TO THE AVAILABILITY OF HOSTING SERVICE OR THE OPERATING TEMPERATURE OF THE DATA CENTER. THE HOSTING SERVICE AND THE DATA CENTER PROVIDED BY NETSONIC IS PROVIDED “AS IS” AND “AS AVAILABLE”. NETSONIC DOES NOT PROVIDE MECHANICAL COOLING OR BACKUP POWER AND THE DATA CENTER IS SUBJECT TO SWINGS IN LOCAL TEMPERATURE, WIND, HUMIDITY, ETC. NETSONIC MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY AGAINST INTERFERENCE; OR (IV) PRICE OR LIQUIDITY OF ANY DIGITAL ASSET. NETSONIC DO NOT WARRANT THAT (A) THE HOSTING SERVICE SHALL BE AVAILABLE 24/7 OR FREE FROM MINOR INTERRUPTIONS; (B) THE HOSTING SERVICE SHALL MEET CUSTOMER’S REQUIREMENTS OTHER THAN AS SET OUT IN WRITTEN AGREEMENT BETWEEN THE PARTIES; OR (C) THE HOSTING SERVICE SHALL PROVIDE ANY FUNCTION NOT DESIGNATED IN WRITTEN AGREEMENT BETWEEN THE PARTIES.
9.4 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL NETSONIC BE LIABLE TO CUSTOMER FOR (I) LOST PROFITS, LOSS OF BUSINESS OR LOST REVENUE TO CUSTOMER DURING OUTAGES, CUSTOMER HARDWARE FAILURES, FORCE MAJUERE EVENTS, OR SIMILAR OCCURRENCES; (II) ANY INTERNET FAILURE OR OUTAGE; (III) DAMAGES RESULTING FROM ANY ACTIONS OR INACTIONS OF CUSTOMER OR ANY THIRD PARTY; (IV) LOSS, INTERRUPTION OR USE OF DATA OR LOSS OF USE OF CUSTOMER HARDWARE OR ANY LOSS, DELETION, OR CORRUPTION OF CUSTOMER’S DATA OR FILES WHATSOEVER; (V) DAMAGES RESULTING FROM CUSTOMER HARDWARE OR ANY THIRD PARTY EQUIPMENT; (VI) ANY INTERRUPTION OR DEFECTS IN CUSTOMER HARDWARE FUNCTIONALITY; OR (VII) ANY CONSEQUENTIAL, INDIRECT COST OF COVER, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT THAT ANY SUCH LOSS OR DAMAGES ARISES OUT OF SUCH PARTY’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT. THE LIMITATIONS SET FORTH HEREUNDER WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY. MOREOVER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NETSONIC TO CUSTOMER, FOR ALL LOSSES, COSTS, AND DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF (I) ACTUAL DIRECT DAMAGES AND (II) THE TOTAL AMOUNT PAID BY CUSTOMER TO NETSONIC UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE-MONTH PERIOD. ALL REFERENCES TO PARTIES IN THIS PARAGRAPH SHALL INCLUDE THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, ADVISORS AND AGENTS.
9.5 Indemnification. Customer agrees to indemnity, defend and hold harmless Netsonic and its officers, managers, partners, members, agents, employees, affiliates, attorneys, heirs, successors and assigns from any and all claims, demands, actions, suits, proceedings and Losses arising from or in connection with (i) any legal, regulatory or governmental action against or including Customer; (ii) the maintenance or operation of Customer Hardware; (iii) any Losses suffered by Customer and Customer’s officers, managers, stockholders, partners, members, owners, customers, agents and representatives; (iv) any breach or nonperformance by Customer of any provision or covenants hereunder; (v) Netsonic and any Hosting Partner acting within the scope of authority as set out in this Agreement.
9.6 Sole Remedy; Limitation on Timing of Actions. Except as expressly set forth herein, Customer’s sole remedy for performance or non-performance of the terms of this Agreement shall be a refund of any fees paid to Netsonic for the applicable service month. Unless applicable law requires a longer period, any action against Netsonic in connection with this Agreement must be commenced within one year after the cause of the action has occurred.
9.7 Subrogation. Customer agrees to look exclusively to Customer’s insurer to recover for injury or damage in the event of any loss or injury, including loss due to Customer fault, and releases and waives all right of recovery against Netsonic and its subsidiaries, affiliates directors, officers, employees, contractors, representatives, advisors and agents and will require a waiver of subrogation for the benefit of Netsonic and its subsidiaries, affiliates directors, officers, employees, contractors, representatives, advisors and agents.
10.1 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.
10.2 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.
10.3 Privacy. Netsonic warrants and represents that, Netsonic shall comply with all applicable privacy laws throughout the Term, and will take all reasonable steps within Netsonic’s power to ensure that Netsonic’s employees, contractors, and other customers also comply with all applicable privacy laws.
10.4 Netsonic 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 Netsonic’s data will remain with and be the exclusive property of Netsonic.
10.5 Government Enquiries and Investigations. Netsonic may cooperate with any government or legal investigation regarding any aspect of the Hosting Service, which may include producing identifying information of Customer.
11 INTELLECTUAL PROPERTY
11.1 Use of Trademarks. Neither party may use the other party’s trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication or press release without the prior written consent of the other party in each case, which consent shall not be unreasonably withheld.
12.1 General. The Parties agree that Netsonic is not an insurer and Customer Hardware is not covered by any insurance policy held by Netsonic. Customer will be solely responsible to insure the Customer Hardware, all Customer equipment and property against all forms of damage. If Customer does not insure the Customer Hardware or obtain any offered premium service plan from Netsonic, Customer will do so at Customer’s sole risk and will indemnify, defend and hold harmless Netsonic and Hosting Partner from any failure to insure by Customer.
13.1 Mediation and Arbitration. To the fullest extent permitted by law, the parties hereto (the “Parties”) agree to waive their rights to seek remedies in court, including but not limited to rights to a trial by jury. The Parties agree that any dispute between or among them or their subsidiaries, affiliates or related entities arising out of, relating to or in connection with this Agreement, will be resolved in accordance with a confidential two-step dispute resolution procedure involving: (1) non-binding mediation, and (2) binding arbitration under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq., or state law, whichever is applicable. Any such mediation or arbitration hereunder will be under the auspices of the American Arbitration Association (“AAA”) pursuant to its then current Commercial Arbitration Rules and Mediation Procedures (the “AAA Commercial Rules”). No arbitration will be initiated or take place with respect to a given dispute if the Parties have successfully achieved a mutually agreed to resolution of the dispute as a result of the step-one mediation. The arbitration (if the dispute is not resolved by mediation) will be conducted by a single AAA arbitrator, mutually selected by the Parties, as provided for by the AAA Commercial Rules. The Parties agree that the arbitrator will apply the substantive law of the State of Delaware to all state law claims and federal law to any federal law claims, that discovery will be conducted in accordance with the AAA Commercial Rules or as otherwise permitted by law as determined by the arbitrator. In accordance with the AAA Commercial Rules (a copy of which is available through AAA’s website, www.adr.org), the arbitrator’s award will consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The Parties understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is limited under state and federal law. Any award rendered by the arbitrator will be final and binding, and judgment may be entered on it in any court of competent jurisdiction. Nothing contained herein will restrict either party from seeking temporary injunctive relief in a court of law. In the unlikely event the AAA refuses to accept jurisdiction over a dispute, the Parties agree to submit to Judicial-Arbitration-Mediation Services (“JAMS”) mediation and arbitration applying the JAMS equivalent of the AAA Commercial Rules. If AAA and JAMS refuse to accept jurisdiction, the Parties may litigate in a court of competent jurisdiction pursuant to Section 15.5.
13.2 Class Action Waiver. Any dispute-resolution proceeding must be brought in the Parties’ individual capacities, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. Unless the Parties later otherwise agree, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Parties understand that they would have had a right to litigate through a court, to have a judge or jury decide their case, and to be party to a class or representative action; however, the Parties understand that they are foregoing these rights and electing to have any dispute decided individually, through arbitration.
14.1 “Business Day” means any day other than Saturday, Sunday, or U.S. federal holiday.
14.2 “Commencement Date” means the date on which the Customer Hardware is scheduled to commence mining operations and as set forth in the Service Order.
14.3 “Netsonic Hosting Team” means the Netsonic customer and technical support team, which shall be available to Customers to assist Customers with the Customer Hardware, Hosting Service and to achieve the Service Level.
14.4 “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.
14.5 “Customer Hardware” refers to the cryptocurrency mining hardware belonging to the Customer and specified in the Order Summary Page.
14.6 “Force Majeure Event” means a failure or delay in performance or any loss or damage due to a force majeure condition, which include, without limitation, acts of God, acts of civil or military authority, war, labor strike, embargo, terrorist act, fire, power failure, lightning, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, water, electrical storms, load reduction and curtailment, inclement weather, health pandemic, epidemic or any law, order, regulation, civil disturbances, governmental regulations, orders, decrees, enforcement actions or other requirements, seizure or other action of any governing authority or agency, acts or omissions of a third-party owner or operator of a Hosting Facility, acts of public enemies, inability to secure replacement parts or materials, transportation facilities, or other causes beyond its reasonable control, whether or not similar to the foregoing, along with any planned service and maintenance needs.
14.7 “Hosting Facility” or “Hosting Partner” means a data center owned, leased, operated or reserved by Netsonic or Netsonic partners through the Site.
14.8 “Hosting Service” has the meaning ascribed to it in Section 1.1.
14.9 “Losses” means all damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees.
14.10 “Mining Rewards” means the digital asset, cryptocurrency, virtual currency, digital currency, or digital commodity (e.g., Bitcoin and Ethereum) produced by the proof-of-work cryptographic protocol of a computer network and generated by Customer’s use of Customer Hardware.
14.11 “Projected Hosting Service Fee” means the total projected monthly fees for the upcoming month for use of the Service.
14.12 “Service Level” has the meaning ascribed to it in Section 1.2.
15 GENERAL PROVISIONS
15.1 Captions and Section Headings. Captions and section headings are for convenience only, are not a part of this Agreement and may not be used in construing it.
15.2 Entire Agreement. This Agreement, including any Service Order(s), certificate, schedule, exhibit or other document delivered pursuant to its terms, constitutes the entire agreement between the parties and supersedes any other agreement, whether oral or written, with respect to the subject matter hereof. There are no verbal agreements, representations, warranties, undertakings or agreements between the parties. ANY WARRANTIES, TERMS, AND/OR CONDITIONS IN ANY PURCHASE AGREEMENTS, INVOICES, CREDIT APPLICATIONS, PURCHASE ORDERS, AND THE LIKE, OR ANY OTHER DOCUMENTS BETWEEN NETSONIC AND CUSTOMER THAT CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN ARE GOVERNED BY THE TERMS HEREIN. Netsonic may at any time revise the terms of this Agreement by updating these terms and by providing notice to Customer of that change.
15.3 Further Assurances. Customer will sign such further documents, cause meetings to be held, pass resolutions, exercise their votes and do and perform and cause to be done such further acts and things as may be reasonably necessary in order to give full effect to this Agreement and every provision hereof
15.4 Force Majeure. Neither party will be responsible nor in any way liable for any delays or failures in performance, except for payment of the Hosting Service Fee under this Agreement, arising out of or relating to a Force Majeure Event.
15.5 Governing Law. This Agreement and all claims arising out of or related to this Agreement are governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Wisconsin. Only to the extent the dispute resolution provisions must be enforced, or in the event such provisions are not enforceable, or in connection with any necessary injunctive relief or to enforce an arbitration award, the jurisdiction is exclusively to the courts within the State of Wisconsin.
15.6 Injunctive Relief. The parties acknowledge that the Confidentiality provision of this Agreement is reasonable in scope and duration and are not unduly restrictive. Customer further acknowledge that a breach of any of the confidentiality obligations in this Agreement will render irreparable harm to Netsonic, and that a remedy at law for breach of the Agreement is inadequate, and that Netsonic shall therefore be entitled to seek any and all equitable relief, including, but not limited to, temporary and permanent injunctive relief, without the necessity of posting a bond, and to any other remedy that may be available under any applicable law or agreement between the parties. Customer acknowledges and agrees that an award of damages to Netsonic does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
15.7 No Assignment. Customer will not assign or otherwise transfer this Agreement or any of the Customer’s rights and obligations under this Agreement, without the prior written consent of Netsonic, which may be unreasonably withheld. Any assignment or transfer in violation of this Section 15.7 will be void. Netsonic may assign this Agreement without the Customer’s consent (i) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (ii) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Netsonic as a party to this Agreement and Netsonic is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns. The Customer may not merge this Agreement with any other agreements with Netsonic it may be party to.
15.8 Consent to Electronic Business. Because Netsonic operates online, it is necessary for Customer to consent to transact business with Netsonic online and electronically. As part of doing business with Netsonic, therefore, we also need Customer to consent to our giving you certain disclosures electronically, either via the Netsonic website or to the email address you provide to us. By entering into this Agreement, Customer consents to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to Customer’s or Netsonic’ rights, obligations, or services under this Agreement (each, a “Disclosure”). You will keep us informed of any change in your email or home address so that you can continue to receive all Disclosures in a timely fashion. If Customer’s registered email address changes, you must notify us immediately of the change. Customer also agrees to update your registered residence address and contact information on the Netsonic website portal if they change. Customer’s decision to do business with Netsonic electronically is made completely voluntarily.
15.9 Notice. Notice is effective when received. All notices, requests, demands and other communications under this Agreement must be in writing and will be deemed duly given, unless otherwise expressly indicated to the contrary in this Agreement, (i) when personally delivered, (ii) upon receipt of a telephonic facsimile transmission with a confirmed telephonic transmission answer back, (iii) three (3) days after having been deposited in the United States mail, certified or registered, return receipt requested, postage prepaid, (iv) one (1) Business Day after having been dispatched by a nationally recognized overnight courier service, or (v) on the date transmitted if by email, addressed to the parties or their permitted assigns at such address or number as is given in writing by either party to the other.
15.10 Relationship of the Parties. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever without the other’s prior written consent.
15.11 Survival. Any provision of this Agreement, which, by its nature, would survive termination or expiration of this Agreement, will survive any such termination or expiration, including, without limitation, those provisions concerning confidentiality, representations and warranties, payment terms indemnification, and limitation of liability.
15.12 Counterparts. This Agreement may be executed in any manner of counterparts, all of which shall constitute in any number of counterparts, all of which shall constitute one and the same instrument, and any Party hereto may execute this Agreement, by signing and delivering one or more counterparts. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
Customer: By: ______________________________ Name: ______________________________ Title: ______________________________ Date: ______________________________ Netsonic: By: ______________________________ Name: ______________________________ Title: ______________________________ Date: ______________________________
Rev D 9_22_2022