Hosting Service Agreement
Last Updated: May 26, 2023
Overview
This AVATRON 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 Black Diamond Group JSC (“AVATRON Mining,” “we,” “us,” or “our”) and the customer identified on your ordering documentation (“Customer,” “you,” or “your”). This Agreement takes effect when you submit your order (the “Effective Date”) and may be updated from time to time, as contemplated herein, with the most current version being maintained at https://avatronmining.com/hosting-service-agreement. Customer represents to AVATRON Mining 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, the individual entering into this Agreement on behalf of Customer represents to AVATRON Mining that it 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 Agreement
AVATRON Mining shall provide for the hosting of Customer Hardware at an approved Hosting Facility (“Hosting Service”), which shall be initially provided at the Hosting Facility or Hosting Facilities referenced in the Service Order. As part of the Hosting Service, AVATRON Mining 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 AVATRON Mining Concierge Team and AVATRON Mining Operations Team, as applicable. In addition to the other rights herein, AVATRON Mining reserves the right to switch any Hosting Facility to another facility, as AVATRON Mining deems reasonable under the circumstances. AVATRON Mining reserves the right to provide the Hosting Service directly or through agents, vendors and third parties. Customer acknowledges and agrees that AVATRON Mining 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 Provider.
1.2 Service Level
AVATRON Mining shall use commercially reasonable efforts to make the Hosting Service available to Customer ninety five percent (95%) of the time in each monthly period (the “Service Level”), except in the event of maintenance of the Hosting Facility or its associated infrastructure, any Customer Hardware failure, or Force Majeure Events. AVATRON Mining 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 AVATRON’s control, and AVATRON Mining will not be liable for the foregoing. AVATRON Mining does not guarantee the supply of electricity during each season or peak hours of the day. There is a possibility of voluntary or involuntary downtime, curtailment by AVATRON Mining, the Hosting Facility or the Hosting Facility’s energy provider, or outages or shortages of power. AVATRON Mining shall not be responsible for the consequences of such outages and such outages shall not be calculated in connection with the Service Level commitment, except as expressly stated herein. Notwithstanding the foregoing, Customer acknowledges that AVATRON Mining and the Hosting Facility participate in various Demand Response / Load Resource Participation Programs (“LRP Programs”), and that the LRP Programs are designed to maintain the integrity of the local grid system and allow for cost savings that can be passed on to AVATRON customers. Accordingly, the LRP Programs provide the local grid operator with the capability to shut off the power load serving AVATRON’ customers in response to load situations.
1.3 Service Order
The Customer acknowledges and agrees that certain terms of the Hosting Service are outlined in the Service Order, which shall be deemed to be agreed by the Customer through the checkout process on the AVATRON Mining website or through the duly executed/acknowledged copy of this Agreement and an accompanying Service Order by the authorized representative of each party.
2. Customer Hardware and delivery
2.1 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 Service Order(s) attached or incorporated by reference, or at AVATRON’ then standard rates. AVATRON Mining or its Hosting Provider may inspect the Customer Hardware for suitability of hosting and has full discretion to accept or reject any Customer Hardware.
2.2 Operation and Start Date
AVATRON Mining shall make commercially reasonable efforts to commence operation of Customer Hardware on the scheduled Hosting Service Commencement Date reflected in the Service Order; provided however, that AVATRON Mining 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 delays, Hosting Facility electrical or network connectivity problems, or loss of power due to the Transmission/Distribution network.
2.3 Serial Numbers
If requested by Customer, AVATRON Mining shall provide Customer with the serial number for each machine included in the Customer Hardware.
3. Hosting Facility Maintenance and Customer Hardware Repairs
3.1 Facility Maintenance
AVATRON Mining, its Hosting Providers and any operators of the Hosting Facility shall be entitled to perform maintenance and any actions as deemed necessary or desirable by AVATRON Mining 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 temporary down-time or unavailability. AVATRON Mining and its Hosting Providers 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, AVATRON Mining may give Customer notice by email prior to conducting such Maintenance, identifying the estimated time and anticipated duration.
3.2 Hardware Maintenance and Repair
AVATRON Mining, its Hosting Providers 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, pursuant to Compass’ then current Fee Schedule. 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 estimated timeline for Customer Hardware repairs to be completed. AVATRON Mining 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. AVATRON Mining reserves the right to undertake the most cost-efficient option for any repair. 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 or the Customer Hardware is otherwise deemed unrepairable by the third-party service provider or manufacturer, 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 AVATRON Mining within fifteen (15) days, AVATRON Mining reserves the right to cancel the Agreement. If the Agreement is cancelled pursuant to this section, Customer shall pay a termination fee equal to the total of the Hosting Service Fee owing for the remainder of the term of the applicable Service Order.
3.3 Relocation
AVATRON Mining or Hosting Provider 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. Should AVATRON Mining or Hosting Provider need to relocate Customer Hardware to another Hosting Facility, AVATRON Mining 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, which may include returning the Customer Hardware to Customer at Customer’s expense and the Agreement will be deemed terminated with Customer owing the Termination Fee (as set forth below). If the Customer Hardware is relocated according to this Section, the cost of relocating the Customer Hardware shall be borne solely by AVATRON Mining and/or the Hosting Facility provider.
3.4 Emergency Relocation
Notwithstanding Section 3.3, in the event of an emergency, as determined in AVATRON’ or Hosting Facility’s reasonable discretion, or other unforeseen circumstances, AVATRON Mining and/or Hosting Facility may rearrange, remove, or relocate Customer Hardware without any liability to AVATRON Mining. Notwithstanding the foregoing, in the case of emergency, AVATRON Mining 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 Selection of Mining Pool
Customer shall timely provide AVATRON Mining the mining pool it seeks to join. Customer is at all times responsible for the selection of the mining pool and for monitoring pool performance and instructing AVATRON Mining to make any changes to the mining pool Customer seeks to use. Customer will comply with any process established by AVATRON Mining for establishing addresses, changes to addresses, and changes to the allocation of hashpower which will include secondary verifications and multiple approvals. Customer will give AVATRON Mining at least 2 Business Days’ notice of any change in addresses or pool location. Customer shall pay a cost for labor, solely determined by AVATRON Mining in good faith, for any excess changes of pools or addresses.
4.2 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 AVATRON Mining harmless from breaches of user or access security with respect to any of Customer Hardware or the Hosting Facility. AVATRON Mining does not provide any service to detect or identify any security breach of Customer Hardware or the Hosting Facility. AVATRON Mining does not provide any tests employing tools and techniques intended to gain unauthorized access to Customer Hardware or Customer’s personal property.
4.3 Compass Account Security
Customer shall maintain the security of passwords for its AVATRON Mining account and shall be solely responsible for the security thereof. Customer shall notify AVATRON Mining if Customer suspects its AVATRON Mining account has been hacked, stolen, accessed without authorization, or otherwise compromised. If AVATRON Mining suspects any security violations have occurred related to Customer’s AVATRON account, AVATRON Mining may suspend access to Customer’s account and Customer Hardware pending resolution.
4.4 Maintenance
Customer may be required to purchase from AVATRON Mining 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, AVATRON Mining may either (i) proceed with most cost-effective option, and Customer agrees to pay any associated fees in connection therewith or (ii) terminate the Agreement and have the Customer Hardware returned to Customer at Customer’s expense and the Agreement would be deemed terminated with Customer owing the Termination Fee (as set forth below).
4.5 Return of Customer Hardware
Upon the expiration or termination of this Agreement and Customer’s payment in full of all amounts owed to AVATRON Mining, Customer shall arrange for the return of the Customer Hardware at Customer’s expense. All fees, taxes, duties, shipping and handling costs, and risk of loss or damage during the return process, including during shipping, shall be borne by Customer; and AVATRON Mining may require that Customer remove the Customer Hardware from the country in which the Hosting Facility is located and take possession outside of such country. If Customer does not provide retrieval instructions within 15 days of termination or expiration of this Agreement, AVATRON Mining shall have the right to (i) sell or retain possession of the Customer Hardware; (ii) reconfigure Customer Hardware and retain for AVATRON’ use and redirect mining rewards to AVATRON’ wallet, or (iii) remove and store at AVATRON’s expense, all or any portion of Customer Hardware without any costs, obligation or liability by AVATRON Mining. AVATRON Mining will not be responsible for any damage or operation deficiency of Customer Hardware and AVATRON Mining will not repair or reimburse Customer in any form.
4.6 Interference
If at any time Customer Hardware causes unacceptable interference to other customers of AVATRON Mining or Hosting Partner customers Provider or their equipment, AVATRON Mining or Hosting Provider may remove or relocate Customer Hardware inside the Hosting Facility at Customer’s sole expense. AVATRON Mining shall provide written notice to Customer of such relocation. If such relocation fails to cure such interference, AVATRON Mining may terminate this Agreement without further obligation to Customer under this Agreement.
4.7 Modification and/or Overclocking
Customer shall notify and obtain prior written approval from AVATRON Mining before any Customer Hardware containing modifications, alternations, firmware adjustments or overclocking (“Modified Equipment”) that might cause such Customer Hardware’s performance to deviate from the standard and/or factory specifications as delivered to the Hosting Facility. If AVATRON Mining and/or Hosting Provider determines that any Customer Hardware has been altered or modified without prior written approval (“Non-Compliant Equipment”), AVATRON Mining and/or Hosting Facility reserves the right to immediately suspend Services to such Non-Compliant Equipment and/or invoice Customer for AVATRON Mining and/or Hosting Facility incremental cost from such Non-Compliant Equipment, which calculation will be solely determined by AVATRON Mining 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 25% 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
AVATRON Mining calculates and bills fees and charges monthly in advance. The parties agree that fees not disputed prior to the date of payment or due date shall be conclusively deemed accurate. If the Hosting Facility incurs Service Level downtime during a billing period, you will receive a prorated Service Level 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 more than 36 hours in a monthly 30-day monthly period that would exceed 5% Service Level downtime, and such applicable Service Level credit shall be applied to the Projected Hosting Service Fee within thirty (30) days of the close of the given month.
5.2 Payment Terms
Acceptable forms of payment include credit card, debit card, bank wire and cryptocurrency. AVATRON Mining may, in its exclusive discretion, modify the acceptable forms of payment from time to time. For credit card and debit card payments, AVATRON Mining or its third party processors may keep your account information on file and set up recurring billings for Hosting Service Fee, unless Customer expressly opts out of the recurring billings. Payments of Projected Hosting Service Fees for the upcoming month will be automatically deducted from Customer’s account. If Customer elects to pay with cryptocurrency, AVATRON Mining will invoice Customer in U.S. Dollars for the Projected Hosting Service Fee. Customer shall deliver the designated cryptocurrency in the amount equal to the invoice due amount into the AVATRONS’s digital wallet. 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 AVATRON Mining, or AVATRON Mining will deduct from Customer account if Customer does not opt out of the automatic bill payment, a deposit for the Projected Hosting Service Fee (“Deposit”). Such Deposit shall be included in the initial payment along with payment for any hardware that Customer purchases from AVATRON Mining. If Customer fails to pay any Hosting Service Fee, AVATRON Mining may use, apply or retain all or any portion of the Deposit for the payment of any amount due or to reimburse or compensate AVATRON Mining for any liability, expenses, loss or damages which AVATRON Mining may suffer or incur by reason thereof. If AVATRON Mining uses or applies all or any portion of the Deposit, Customer shall within ten (10) days after written request thereof deposit money with AVATRON Mining 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 AVATRON Mining elects to apply Deposit to unpaid Hosting Service Fee, AVATRON Mining 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, AVATRON Mining may (i) apply any Deposit; (ii) terminate the Hosting Service, (iii) reconfigure Customer Hardware and retain for AVATRON’ use and redirect mining rewards to AVATRON’ wallet; (iv) seize and dispose of or sell the Customer Hardware and use the proceeds to satisfy any amounts due; and/or (v) turn off Customer Hardware, and/or disable Customer’s access to accounts until all fees due to AVATRON Mining are paid in full. If AVATRON Mining elects to redirect mining rewards, Customer forfeits its rights to any cryptocurrency mining rewards resulting from the redirected hashpower that was used to satisfy Customer’s obligations to AVATRON Mining. Without limiting the foregoing, AVATRON Mining reserves the right to charge a monthly late fee in the amount of twenty five dollars ($25.00) per unit of Customer Hardware until all payments owed to AVATRON Mining are settled, in addition to AVATRON’ rights to take possession of the Customer Hardware and redirect mining rewards to AVATRON’ wallet until any overdue invoice and late fee are paid in full. AVATRON Mining 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. AVATRON Mining 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, including, without limitation, any sale of the Customer Hardware on the AVATRON Marketplace. In addition to the foregoing, AVATRON Mining reserves the right to charge a reconnection fee of twenty five dollars ($25.00) per unit of Customer Hardware in the event Customer fails to pay any applicable invoice.
5.5 Hosting Service Fee Adjustment
AVATRON Mining reserves the right to provide written notice to modify its rates upon a change in any of AVATRON’ or its Hosting Provider’s operating costs, including without limitation, power rates, leasing rates, tax rates and/or increased regulatory compliance costs.
6. Term, Termination, Modification and Suspension
6.1 Term
The initial term shall be as stated in a Service Order attached or incorporated by reference (the“Initial Term”) and upon expiration of the Initial Term the Agreement will renew automatically as contemplated in the Service Order (each a “Renewal Term”, and together with the Initial Term, the“Term”). If no Initial Term is set forth in a Service Order, unless terminated sooner as provided in this Agreement, the Initial Term of the Hosting Services provided under this Agreement shall begin on the Commencement Date and expire three (3) years thereafter and upon expiration of the Initial term, this Agreement will renew automatically for successive one (1) year Renewal Terms, unless either party provides written notice to the other party 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. Any amendment, modification or revision of the terms of this Agreement by AVATRON Mining pursuant to Section 15.2, shall not otherwise modify the Term, which shall remain as stated in your Service Order.
6.2 Termination
6.2.1 – AVATRON Mining 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 AVATRON Mining; (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; (iii) enter into bankruptcy, financial failure or insolvency; or (iv) sell your assets or equity to, or merge with, another person, corporation or entity, unless such transaction is approved in writing in advance by AVATRON Mining.
6.2.2 – AVATRON Mining may 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 AVATRON Mining shall provide Customer notice of termination promptly after learning of such unavailability. In addition, AVATRON Mining may terminate or suspend all or a portion of the Agreement if necessary to ensure it remains in compliance with applicable law, rules, regulations, administrative or judicial orders or decrees. By way of example only, and by no means a limitation, termination or suspension hereunder may occur if Customer, a Hosting Facility or any other third-party seller or provider becomes designated by OFAC as a Blocked Person or other Specially Designated National as the List may be updated from time to time or a Hosting Facility ceases or is unable to provide contracted services to AVATRON Mining. AVATRON Mining will use commercially reasonable efforts to notify Customer, which may be via email or via the AVATRON Mining website, of such termination or 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 any such termination or suspension
6.2.3 – AVATRON Mining may terminate the Agreement for convenience by providing Customer with a 30-day written notice.
6.2.4 – Notwithstanding anything to the contrary contained herein, Customer may only terminate the agreement if the Customer Hardware purchased by Customer from AVATRON Mining has been fully paid and there are no outstanding payment plans or financings with AVATRON Mining, Hosting Provider or any third-party seller and no amounts that remain outstanding pursuant to this Agreement.
6.3 Effects of Termination
6.3.1 – In the event AVATRON Mining terminates or suspends this Agreement pursuant to Section 6.2.2, Customer hereby irrevocably appoints AVATRON Mining as its lawful limited attorney-in-fact to: (a) negotiate a liquidation or sale of Customer Hardware given the circumstances of termination or suspension; (b) to execute, sign, and deliver any instruments or documents which may be required to effectuate and consummate the negotiated liquidation transaction; and (f) transfer the Customer Hardware into the name of a third party in connection with any negotiated liquidation transaction. AVATRON Mining shall have the authority to act upon its appointment as Customer’s limited attorney in fact by exercising AVATRON’ commercially reasonable efforts and undertaking any transactions in good faith upon a termination or suspension hereunder. AVATRON’ foregoing appointment as Customer’s limited attorney in fact, and all of AVATRON’ rights and powers, coupled with an interest, are irrevocable and shall survive and not be affected by the subsequent death, incapacity, disability, dissolution, termination or bankruptcy of Customer and will extend to Customer’s successors, assigns and legal representatives. AVATRON Mining will use notify Customer, which may be via email or via the AVATRON Mining website, of any transaction undertaken pursuant to this Section 6.3.1.
6.3.2 – In addition to any effects pursuant to Section 6.3.1, upon termination or expiration of this Agreement, Customer agrees to immediately pay to AVATRON Mining all amounts then owed including all amounts owed through the term of any applicable Service Order. AVATRON Mining will provide written notice of any funds owed. If Customer fails to make such payments within five (5) days, AVATRON Mining shall have the right to (i) sell or retain possession of the Customer Hardware; (ii) reconfigure Customer Hardware and retain for AVATRON’ use and redirect mining rewards to AVATRON’ wallet, or (iii) remove and store at Customer’s expense, all or any portion of Customer Hardware without any costs, obligation or liability by AVATRON Mining. 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 AVATRON Mining. Any of the measures above can be used to recover Customer funds owed plus reasonable costs to facilitate the recovery of funds owed. AVATRON Mining, or any third-party seller and/or Hosting Partner, 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. AVATRON Mining 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, including, without limitation, any sale of the Customer Hardware on the AVATRON Marketplace. 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 AVATRON Mining for financed Customer Hardware whether pursuant to this Agreement or a separate agreement with AVATRON Mining.
7. Security Interest
7.1 Security Interest
CUSTOMER HEREBY GRANTS AVATRON Mining 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, AVATRON’ 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 A AVATRON Mining 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 AVATRON Mining AND HOSTING PARTNER TO PERFECT ALL SECURITY INTERESTS GRANTED, INCLUDING, BUT NOT LIMITED TO, SIGNING ANY DOCUMENTS THAT AVATRON Mining AND/OR THE FINANCING PARTY DEEM REASONABLY NECESSARY, INCLUDING THE FILING OF A UCC 1 FINANCING STATEMENT. AVATRON Mining IS FREE TO ASSIGN ITS RIGHTS IN CONNECTION WITH THE SECURITY INTEREST.
7.2 Power of Attorney
CUSTOMER HEREBY IRREVOCABLY APPOINTS AVATRON Mining AS ITS LAWFUL LIMITED ATTORNEY-IN-FACT TO GRANT SUCH SECURITY INTEREST TO ANY HOSTING FACILITY OR THIRD-PARTY AND TO SIGN CUSTOMER’S NAME ON ANY DOCUMENTS NECESSARY TO PERFECT OR CONTINUE THE PERFECTION OF THE SECURITY INTEREST GRANTED HEREIN.
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/acknowledge and perform its obligations under this Agreement, including, without limitation, the grant of the attorney-in-fact rights herein; 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 AVATRON Mining or Hosting Provider per this Agreement, or in a separate agreement where AVATRON Mining is a party, or with AVATRON’ written consent), 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 AVATRON Mining 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. Customer will provide such further information and sign such additional documents, cause meetings to be held, and do and perform and cause to be done such further acts and things as may be reasonably necessary in order to allow AVATRON Mining to conduct any know your customer or other similar obligations.
9. Risk Factors and Limitations of Liability
9.1 Protocol Risk
AVATRON does not own or control the underlying software cryptographic protocols of networks which govern the operation of any cryptocurrency. AVATRON 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 AVATRON does not make any representation or warranty regarding privacy, security, authenticity, and non-corruption or destruction of any such information. AVATRON does not warrant that the Hosting Service or Customer’s use will be uninterrupted, error-free, or secure. AVATRON 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 AVATRON is at Customer’s own risk. AVATRON 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. AVATRON 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 Operational Risk
Customer acknowledges and agrees that Hosting Facility operations are subject to various risks, including, but not limited to, risks related to Hosting Facility logistics, power supply, compliance with agreements, compliance with regulatory requirements, construction delays. In addition, global supply chain issues have resulted in a variety of disruptions for manufacturers, retailers, and various other types of companies from the ability to source and obtain raw materials to delays in shipping and the availability of end user products. Ongoing labor shortages have created challenges for companies across industries, including the manufacturing and transportation industries, further exacerbating supply chain disruptions. As a result of these disruptions, AVATRON and/or the Hosting Facility may experience increased costs, inventory shortages, and temporary shutdowns. In addition to supply chain disruptions and labor shortages, AVATRON and/or the Hosting Facility may experience increased inflation in the costs of various goods and services, including the costs of power supply.
9.4 As Is and No Warranty
AVATRON 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 AVATRON IS PROVIDED “AS IS” AND “AS AVAILABLE”. AVATRON DOES NOT PROVIDE MECHANICAL COOLING OR BACKUP POWER AND THE DATA CENTER IS SUBJECT TO SWINGS IN LOCAL TEMPERATURE, WIND, HUMIDITY, ETC. AVATRON 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. AVATRON 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.
9.5 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPASS 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 AVATRON 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 AVATRON 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.
9.6 Indemnification
Customer covenants and agrees to indemnify and hold harmless AVATRON and its officers, directors, stockholders, employees, agents, representatives, advisors and each of their successors and assigns (each a“AVATRON Indemnified Party”) from any and all claims, demands, actions, suits, proceedings and Losses, costs, or expenses of any kind, including legal fees, incurred or suffered, directly or indirectly, by any AVATRON Indemnified Party whatsoever arising out of, attributable to or incidental 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, (d) ownership, operation or use of the Customer Hardware, (e) AVATRON’ violation of the Agreements with any financing party and/or Hosting Provider, (f) Customer’s entering into this Agreement, (g) the negligence or intentional misconduct of Customer, or any of its agents, in connection with this Agreement, any Hardware Purchase Agreement or any agreement entered into by Compass in connection herewith or therewith, and (h) any conduct, activity, or action by Customer or any person or entity acting on its behalf, or at its request, which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity.
9.7 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 AVATRON for the applicable service month. Unless applicable law requires a longer period, any action against AVATRON in connection with this Agreement must be commenced within one year after the cause of the action has occurred.
9.8 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 AVATRON and its subsidiaries, affiliates directors, officers, employees, contractors, representatives, advisors and agents and will require a waiver of subrogation for the benefit of AVATRON and its subsidiaries, affiliates directors, officers, employees, contractors, representatives, advisors and agents.
10 Confidentiality
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
AVATRON will comply with applicable privacy laws throughout the Term, and will take reasonable steps within AVATRON’ power to ensure that AVATRON’ employees, contractors, and other customers also comply with applicable privacy laws.
10.4 AVATRON 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 AVATRON’s data will remain with and be the exclusive property of AVATRON.
10.5 Government Enquiries and Investigations
AVATRON 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 Insurance and Risk of Loss
12.1 Requirements
Customer will be solely responsible to ensure that the Customer Hardware, all Customer equipment and property are properly covered against all forms of damage. Customer shall obtain and maintain commercially reasonable insurance to protect against all risks of physical loss of or damage to the Customer Hardware or a AVATRON Protection Plan, if available. AVATRON shall be named as a loss payee on such insurance policy(ies) and Customer will provide a certificate of insurance confirming the same. If Customer does not insure the Customer Hardware or obtain any offered AVATRON Protection Plan, Customer will do so at Customer’s sole risk and will indemnify, defend and hold harmless AVATRON and Hosting Partner from any failure to insure by Customer. If AVATRON elects to switch any Customer Hardware to a new Hosting Facility, Customer shall update its insurance policies to reflect any change in the Hosting Provider without undue delay. Customer agrees to provide any assistance necessary to enable AVATRON to ensure its compliance with any agreement between Customer and Hosting Provider. Customer acknowledges and agrees that this section is a material component of this Agreement.
13 Disputes
13.1 Mediation and Arbitration
To the fullest extent permitted by law, the parties hereto 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 including all transactions between Customer and AVATRON even if such transactions were completed under a prior version(s) of this Agreement, will be resolved in accordance with a confidential two-step dispute resolution procedure involving: (1) non-binding mediation, and (2) binding arbitration 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 Definitions
14.1 “Business Day”
…means any day other than Saturday, Sunday, or Georgian national holidays.
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 “AVATRON Mining Concierge Team”
…means the AVARON customer and technical service team, which shall be available to Customers to assist Customers with the Customer Hardware, Hosting Service and to achieve the Service Level.
14.4 “AVATRON Mining Operations Team”
…means the AVATRON customer and technical service team, which shall be available to Customers to assist Customers with the Customer Hardware, Hosting Service and to achieve the Service Level if the AVATRON Mining Concierge Team is unable to assist.
14.5 “AVATRON Protection Plan”
…means the damage waiver and protection plan offered by AVATRON, which Customer may elect to purchase, and if so, such terms and conditions will be attached to this Agreement as a separate addendum.
14.6 “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.
14.7 “Customer Hardware”
…refers to the cryptocurrency mining hardware belonging to the Customer and specified in the Service Order.
14.8 “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, civil disturbances, fire, power failure, lightning, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, accident, electrical storms, load reduction and curtailment, inclement weather, health pandemic or epidemic, national, local or regional emergency, any law, order, decrees, regulation, seizure, enforcement actions or other action of any governmental authority or agency, regulatory requirements, acts or omissions of a third-party owner or operator of a Hosting Facility, other acts or omissions of a third-party, acts of public enemies, inability to secure parts or materials, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, or other causes beyond a party’s reasonable control, whether or not similar to the foregoing, along with any planned service and maintenance needs.
14.9 “Hosting Facility” or “Hosting Provider
…means a data center owned, leased, operated or reserved by AVATRON or AVATRON partners through the Site.
14.10 “Losses”
…means all damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees.
14.11 “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.
14.12“Projected Hosting Service Fee”
…means the total projected monthly fees for the upcoming month for use of the Service.
14.13 “Service Order”
…means the documentation that contains certain terms of the Hosting Service, including the Hosting Facility, the monthly hosting fee, as well as the estimated online date, which may be as specified in the order summary page if purchased on the AVATRON Site (https://avatronmining.com/) , or contained in a service order form attached hereto.
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 COMPASS AND CUSTOMER THAT CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN ARE GOVERNED BY THE TERMS HEREIN. AVATRON may at any time amend, modify or revise the terms of this Agreement by updating these terms and by providing notice to Customer of that change via the AVATRON Website and/or by email and Customer’s continued use of the Hosting Service reflects Customer’s agreement to any modified, amended or revised terms in this Agreement. Further, AVATRON may amend, modify or revise the Fee Schedule from time to time by making any changes to the linked location where the Fee Schedule resides. This Agreement, as amended, modified or revised, applies to all transactions between Customer and AVATRON, even if such transactions were completed under a prior version(s) of this Agreement.
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 arising out of or relating to a Force Majeure Event. The time for performance shall be extended for a period equivalent to the delay resulting from the Force Majeure Event, except for Customer’s obligation to make payment of the Hosting Service Fee under this Agreement. AVATRON nor its Hosting Providers shall be liable in any way for a Force Majeure Event. In the event of an occurrence of a Force Majeure Event, each party agrees to make a good faith effort to perform its obligations hereunder. Notwithstanding the foregoing, AVATRON has the right to terminate or suspend this Agreement in the event of a Force Majeure Event that prevents it from performing the Services hereunder or if AVATRON reasonably determines that providing the Services is impractical or will result in any failure to comply with applicable law, regulation, order or requirement.
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 Georgia, 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 Georgia. Only to the extent the dispute resolution provisions must be enforced, or only as necessary to provide injunctive relief as contemplated herein, the jurisdiction and venue shall be exclusively within the State and Federal courts located within Georgia.
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 AVATRON, and that a remedy at law for breach of the Agreement is inadequate, and that AVATRON 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 AVATRON 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 AVATRON, which may be unreasonably withheld. Any assignment or transfer in violation of this Section 15.7 will be void. AVATRON 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 AVATRON as a party to this Agreement and AVATRON 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 AVATRON it may be party to.
15.8 Consent to Electronic Business
Because AVATRON operates online, it is necessary for Customer to consent to transact business with AVATRON online and electronically. As part of doing business with AVATRON, therefore, Customer consents to AVATRON giving Customer certain disclosures electronically, either via the AVATRON website, platform 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 AVATRON’ 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 AVATRON website if they change. Customer’s decision to do business with Compass electronically is made completely voluntarily. You agree that the most current version of this Agreement maintained at https://compassmining.io/hosting-agreement will govern all transactions between you and Compass, even if such transactions occurred prior to the most recent version of this Agreement.
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 Georgian 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 Limited Agency
Customer agrees that AVATRON is hereby appointed Customer’s limited agent and attorney-in-fact for the limited purposes of executing documentation, agreements, contracts and other documents, enforcing any such documentation or other rights at law or in equity as AVATRON may be requested in connection with the provision of the Hosting Services and/or performing its obligations hereunder or as otherwise required to enforce AVATRON’ and/or Customer’s rights with respect to any Hosting Facility or Hosting Provider, or any third-party interacting with such Hosting Facility or Hosting Provider, to protect, secure, obtain and/or retrieve any of the Customer Hardware, and to take all other reasonable actions as AVATRON may deem appropriate to effect the transactions contemplated by this Agreement. Due to certain events with any Hosting Facility or Hosting Provider, AVATRON may be required to act under this grant of limited agency. There is no fiduciary relationship between AVATRON and Customer. Notwithstanding anything to the contrary, there are no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against AVATRON in its capacity as a limited agent.
15.11 Relationship of the Parties
Except as expressly set forth herein, nothing else in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Except as expressly set forth herein, 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. AVATRON may, however, disclose the obligations that Customer has undertaken in this Agreement to its Hosting Providers and AVATRON may make commitments or take actions on behalf of Customer to any Hosting Providers as further set forth in this Agreement.
15.12 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 Payment Terms (Section 5), Term, Termination, Modification and Suspension (Section 6), Security Interest (Section 7), Representations and Warranties (Section 8), Risk Factors and Limitation of Liability (Section 9), Confidentiality (Section 10), Insurance (Section 12), Disputes (Section 13) and these General Provisions (Section 15).
15.13 Counterparts; Electronic Execution
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 or electronically agreed/acknowledged, and that any electronic signatures, acknowledgements or agreements are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
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