Blockmine Data GmbH (Germany), represented by the managing director, Ricardo Leone, acting in the name and on account of Blockmine, Inc. (United States) on the basis of agency contract no. 1 of June 19, 2020, hereinafter referred to as "Host", provides this contract for the provision of paid services, hereinafter referred to as "Agreement".
|Hosting tariffs (TX 1 - USA)||>> FULLY BOOKED <<|
|1 - 299 kW||on request!|
|300 - 699 kW||on request!|
|700 - 999 kW||on request!|
|> 1 MW||on request!|
|Hosting tariffs (TX 2 - USA)||>> AVAILABLE <<|
|1 - 299 kW||0.079 € / kWh|
|300 - 699 kW||0.069 € / kWh|
|700 - 999 kW||0.059 € / kWh|
|> 1 MW||on request!|
|Hosting tariffs (NY 1 - USA)||
>> FULLY BOOKED <<
|1 - 299 kW||on request!|
|300 - 699 kW||on request!|
|700 - 999 kW||on request!|
|> 1 MW||on request!|
*Sample: Monthly costs for an Antminer S19XP 140T with a power consumption of 3010 watts.
*Calculation: 3010 watts = 3.01kW * 24H = 72.24kWh * 30.5D = 2.204kWh * 0.085€ = 187€ per month.
|Initial Setup fee (One-Time)|
|1 - 49 units||150 € / unit|
|49 - 199||
120 € / unit
|200 - 500 units||80 € / unit|
|> 500 units||on request!|
Hosting and Security Agreement
This Hosting and Security Agreement (“Agreement”) is eﬀective, by and between Blockmine, Inc, 1209 Orange Street, Wilmington, 19801 Delaware, United States, the (“Host”), and the client listed below (“Client”), collectively known as the“Parties”, for computer and server colocation services.
1. Host Service Obligations.
1.1. Services. Client has, or shall promptly, deliver the Digital Asset (as deﬁned in Section 6.01) mining equipment listed on Exhibit A attached hereto (the “Client Equipment”) to Host. Host shall receive and test Client’s Equipment, provide rack space allocation for Client’s Equipment (“Client Space”), installation services, electrical power connection, infrastructure, network connectivity, and technical support (collectively, the “Services”), for the Term (as deﬁned in Section 3.01).
1.2. Installation and Testing. Upon receipt of Client’s Equipment, Host shall perform commercially reasonable testing in accordance with Host’s equipment testing procedures and notify Client of any malfunctioning Client Equipment. Host shall install functioning Client’s Equipment in the Client Space. The location of the Client Space shall be determined by Host, in its sole discretion, provided, however, that Client’s reasonable preferences identiﬁed to Host may be considered. Host shall not be liable for any defects or malfunctions in Client’s Equipment or for failing to identify any hidden defects during installation or testing.
1.3. Commencement Date. Host shall make commercially reasonable eﬀorts to begin providing Services on the Estimated Service Commencement Date identiﬁed in the preamble of this Agreement, provided, however, that, subject to Section 3(c), Host shall not be responsible for any delay in the date Service begins for any reason, including delay in receipt of Client’s Equipment, Force Majeure, lack of available rackspace, or electrical or network connectivity problems.
1.4. Maintenance. Host shall perform such maintenance actions as Host deems necessary or desirable with respect to the buildings and facilities owned or leased by Host in which the Client Space is located (“Data Center”), and maintain Host’s network (“Maintenance”). Client acknowledges and agrees that the performance of Maintenance may cause the network to be temporarily inaccessible and the Services temporarily unavailable to Client. Host shall use commercially reasonable eﬀorts to conduct such Maintenance in a manner so as to avoid or minimize the unavailability of the Services. If Maintenance is expected to interrupt the availability of Services, Host may give Client notice by e-mail prior to conducting such maintenance, identifying the time and anticipated duration of the Maintenance.
1.5. Repairs. Host shall monitor Client Equipment and may, within a reasonable period, contact Client if any of Client Equipment is not operational. At Client’s request, Host shall perform diagnostic and repair engineering work (“Engineering Work”) on Client Equipment. Host shall be the exclusive provider of Engineering Work. Client hereby releases and shall hold Host, its employees and contractors harmless from and against all losses relating to Host’s performance of such Engineering Work. The response time for Engineering Work shall be based upon available resources at time of Client request. Client hereby authorizes Host to open and modify Client Equipment for repairs requested in accordance with this Section 1.5, and acknowledges that such requests may void the warranty of Client Equipment. Any Client Equipment repair or replacement deemed necessary by Host shall be as agreed by the Parties prior to making additional purchases. Client will incur the cost of hardware and parts during repair or replacement of Client Equipment. Host has the right to charge Client a fee determined by the Host for Client Equipment repair or replacement.
1.6. Downtime. Except in the event of Maintenance, Client’s Equipment failure, and Force Majeure conditions, each month, Host shall provide the Services to Client ninety ﬁve percent (95%) of the time (“Minimum Service Level”). Client agrees that Host may assign Host’s mining equipment or the mining equipment of other clients that is materially similar to Client’s Equipment to target Client’s cryptocurrency wallet address according to Host’s Service policies and programs. In the event that Services are not provided at the Minimum Service Level, Client shall receive a credit equal to the amount of downtime accrued beyond ﬁve percent (5%) of total downtime in hourly increments (“Service Level Credit”). The Service Level Credit shall be applied in equal installments over the Clients next four (4) monthly payments.
2. Client Obligations.
2.1. Security. Client shall provide all end-user equipment, software and all other telecommunications, Internet access and related equipment that Client deems necessary or desirable for Client’s receipt of Digital Assets. Client shall be solely responsible for installation, maintenance, conﬁguration, connection, inter-connection, and all other support in connection with all equipment and personal property to be used by Client to access the Host website and receive and store Digital Assets. Client shall keep Client’s Digital Assets, including Client’s private key, secure. Host does not provide, and Client shall hold Host harmless from, user or access security with respect to any of Client’s Equipment or the Data Center, and shall be solely responsible for user access security and network access to Client’s Equipment. Host shall not provide any service to detect or identify any security breach of Client’s Equipment or the Data Center. Host does not provide any tests employing tools and techniques intended to gain unauthorized access to Client’s Equipment or Client’s personal property.
2.2. Compliance with Laws. Client shall at all times comply with the laws, regulations and rules of any applicable governmental or regulatory authority, including, without limitation, Money Service Business regulations under the Financial Crimes Enforcement Network (“FinCen”); state money transmission laws; laws, regulations, and rules of relevant tax authorities; applicable regulations and guidance set forth by FinCEN; the Bank Secrecy Act of 1970; the USA PATRIOT Act of 2001; AML/CTF provisions a mandated by U.S. federal law and any other rules and regulations regarding AML/CTF; issuances from the Oﬃce of Foreign Assets Control (“OFAC”); the National Futures Association; the Financial Industry Regulatory Authority; and the Commodity Exchange Act.
2.3. Acceptable Use Policy. Client shall at all times use the Client’s Equipment and maintain the Data Center in a safe manner and according to Host’s then-current Acceptable Use Policy, available at support.blockmine.us/AcceptableUsePolicy.
2.4. Insurance. It is understood that Host is not an insurer and Client’s Equipment is not covered by any insurance policy held by Host.
2.5. Licenses and Permits. Client shall be responsible for obtaining any licenses, permits, consents, or approvals from any federal, state or local government, which may be necessary to install, possess, own, or operate the Client’s Equipment.
3. Term & Right Of Termination.
3.1. Initial Term. The term of this Agreement shall begin on the day that Host begins to provide power, infrastructure, network connectivity, and technical support to Client Equipment (the “Launch Date”). The term of this Agreement will be active from the Launch Date to the completion of the full Length of Term, as deﬁned on page one (1) (the “Initial Term”). At the end of the Initial Term, this Agreement shall renew automatically for one additional term equal to the length of the Initial Term (the “Renewal Term”), and together with the Initial Term until the termination of this Agreement as set forth in this Section 3.
3.2.1. Termination by Either Party. This Agreement may be terminated by either Party, at any time, without liability to the other Party, for any one or more of the following: (i) the non-terminating Party breaches any material term of this Agreement and fails to cure such breach (if susceptible to cure) within ﬁfteen (15) days after receipt of written notice of the same (provided, however, in the event this Agreement provides that termination of any rights shall be immediate for any speciﬁc breach, then no such notice period shall not be required); (ii) the non-terminating Party becomes the subject of a voluntary or involuntary proceeding relating to insolvency, bankruptcy, receivership, liquidation, or reorganization for the beneﬁt of creditors, and such petition or proceeding is not dismissed within sixty (60) days of the ﬁling thereof; or (iii) a court or other government authority having jurisdiction over the Services prohibits Host from furnishing the Services to Client.
3.2.2. Termination by Host. Host may terminate this Agreement for cause immediately following written notice to Client if Client: (i) fails to make any payment(s) due pursuant to this Agreement; (ii) violates, or fails to perform or fulﬁll any covenant or provision of this Agreement, and any such matter is not cured within ten (10) days after notiﬁcation from Host; or (iii) enters into bankruptcy, dissolution, ﬁnancial failure or insolvency, sale or merger with another person, corporation or entity, unless approved in advance by Host (each, a “Default”).
3.2.3. Termination by Client. Client may terminate any or all Services if (i) Client provides Host with written notice of non-renewal at least thirty (30) days before the end of the Term, (ii) Service has not started as of the date six (6) months after the Estimated Service Commencement Date, or (iii) Client pays a termination fee in the amount of one hundred percent (100%) of the remaining fees for the Term. If Client fails to provide notice of termination of any or all Services within at least thirty (30) days before the end of the Term, Client’s deposit is no longer refundable.
3.2.4. Eﬀect of Termination. In the event of a Default by Client, Client agrees to pay immediately to Host all amounts then owed. If Client fails to make any such payments, Host shall have the right to (i) sell or retain possession of; (ii) reconﬁgure for Host’s use; or (iii) remove and store at Client’s expense, all or any portion of Client’s Equipment without any cost, obligation or liability of Host to Client.
3.2.5. Return of Client Equipment. Upon Client’s request, and provided that Client is current on all amounts due to Host, Host shall return Client’s Equipment, or substantially similar equipment having approximately the same value as Client’s Equipment. Shipping and handling costs shall be paid by Client to Host in advance. Risk of loss during shipping shall be borne by Client. Host recommends insurance on all such shipments and, at Client’s direction and cost, will obtain such insurance on behalf of Client. Upon termination of this Agreement for any reason, if Client does not provide return directions within ﬁfteen (15) days of termination of this Agreement, Host shall dispose of Client’s Equipment. Host is not responsible for any cosmetic damage or operation deﬁciency from Client’s Equipment, and Host will not repair or reimburse the Client in any form.
4. Rates And Payment Terms. 4.1. Rates. Host will invoice, via electronic communication, Client for all Services on a monthly basis. Host may calculate invoice charges based on the actual power consumption of Client Equipment. Overcharges will be refunded to Client.
4.2. Payment Terms. Client shall pay all invoices in advance, no later than ﬁve (5) days after the invoice is received by the Client. Host shall terminate all Services if payment is not received in full.
4.2.1. Except for payments made in United States Dollars, Host reserves the right to reject any payment, or require additional payment based on the conversion rate of such payment to United States Dollars.
4.2.2. Client shall be responsible for all taxes (including, without limitation, sales, use, transfer, privilege, excise, consumption and other taxes), fees, duties, governmental assessments, impositions and levies, related to the provision of Services.
4.3. Rate Changes. Host reserves the right to modify its rates (a) at the end of any Term, provided Host notiﬁes Client at least thirty (30) days in advance of the eﬀective date of such rate change, or (b) upon a material increase in any of Host’s operating costs, including, without limitation, power rates, facility leasing rates, tax rates or increased regulatory compliance costs.
4.4. Deposits. Host may apply Client’s deposits, as listed in any Agreement or Addendum to any Agreement, as payment for the ﬁnal period of Client’s Term, at Host’s election.
4.5. NSF: In the case of a non-suﬃcient funds (NSF) notice received by Host when Client attempts payment, the following shall apply:
4.5.1. First NSF Oﬀense: $35 (USD) charge to Client
4.5.2. Second NSF Oﬀense: $50 (USD) charge to Client
4.5.3. Third NSF Oﬀense: $75 (USD) charge to Client and Client is no longer allowed to submit payments by payment method causing NSF notice. All future payments will be made using a payment method of the Host’s choice, such as bank-to-bank wire transfer, credit card, etc.
5. SECURITY INTEREST. CLIENT HEREBY GRANTS HOST A SECURITY INTEREST IN ALL CLIENT’S EQUIPMENT IN HOST’S POSSESSION, NOW OR AT ANY TIME HEREAFTER, IN ORDER TO SECURE THE TIMELY PERFORMANCE OF THIS AGREEMENT BY CLIENT AND SECURE THE PAYMENT OF ALL INVOICES, CHARGES, AND COSTS. FURTHERMORE, CLIENT GRANTS HOST A SECURITY INTEREST IN ALL CLIENT’S EQUIPMENT FOR THE PAYMENT OF ENGINEERING WORK, LABOR OR OTHER CHARGES THAT ARE DUE AND UNPAID BY THE CLIENT.
6.1. Digital Assets. Host does not own or control any Digital Assets and does not own or control the underlying software protocols of Digital Asset networks which govern the operation of Digital Assets. Host is not responsible for the operation of the underlying protocols, and makes no guarantees regarding their security, functionality, or availability. In no event shall Host be liable to Client or anyone else for any loss or injury resulting directly or indirectly from any services provided by Host, including, but not limited to, any loss caused in whole or in part by any inaccuracies or incompleteness, delays, interruptions, errors or omissions, including, but not limited to, those arising from Host’s negligence or contingencies beyond Host’s control in procuring, compiling, interpreting, computing, reporting, or delivering the Services thereon or the information therein. In no event shall Host be liable to Client or anyone else for any decision made or action taken by Client in reliance on, or in connection with the Services. This limitation on liability includes, without limitation, any damage or interruptions caused by any computer viruses, spyware, scamware, trojan horses, worms, or other malware that may aﬀect Client’s computer or other equipment, or any phishing, spooﬁng, domain typosquatting, or other attacks, failure of mechanical or electronic equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, operator errors, strikes or other labor problems, or any Force Majeure. If this disclaimer of liability section is deemed to conﬂict with any other section of this agreement, this disclaimer of liability section supersedes the other section (collectively, “Hacking”). For purposes of this Agreement, “Digital Asset” means any digital asset, cryptocurrency, virtual currency, digital currency, or digital commodity, including, without limitation Bitcoin and Ethereum, which is based on the cryptographic protocol of a computer network that may be (a) centralized or decentralized, (b) closed or open-source, and (c) used as a medium of exchange and/or store of value.
6.2. Limitation on Liability. Client understands and agrees that 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 provides the opportunity for unauthorized access to wallets, computer systems, networks, and all data stored therein. Information and data transmitted through the Internet or stored on any equipment through which Internet information is transmitted may not remain conﬁdential and Host does not make any representation or warranty regarding privacy, security, authenticity, and non-corruption or destruction of any such information. Host does not warrant that the Services or Client’s use will be uninterrupted, error-free, or secure. Host shall not be responsible for any adverse consequence or loss whatsoever to Client’s (or its users’ or subscribers’) use of the Services or the Internet. Use of any information transmitted or obtained by Client from Host is at Client’s own risk. Host 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, defect, 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. Host does not control the transmission or ﬂow of data to or from Host’s network and other portions of the Internet, including the Digital Asset networks. Such transmissions and/or ﬂow depend in part on the performance of telecommunications and/or Internet services provided or controlled by third Parties. At times, actions or inactions of such third Parties can impair or disrupt Host or Client’s connections to the Services. Host does not represent or warrant that such events will not occur and Host disclaims any and all liability resulting from or related to such acts or omissions.
6.3. No Other Warranty. The Services (including all materials supplied and used therewith) are provided “as is” “where is”, and Client’s use of the Services is at its own risk. Host does not make, and hereby disclaims, any and all representations and warranties, express or implied, whether in fact or by operation of law, statutory or otherwise, including, but not limited to, any representation or warranty regarding the price or liquidity of any Digital Asset, either now or in the future, warranties of merchantability, habitability, marketability, proﬁtability, ﬁtness for a particular purpose, suitability, noninfringement, title, or arising from a course of dealing, or trade practice.
6.4. Warranty and Disclaimer. HOST MAKES NO WARRANTIES OR GUARANTEES RELATED TO THE AVAILABILITY OF SERVICE OR THE OPERATING TEMPERATURE OF THE DATA CENTER. THE SERVICE AND THE DATA CENTER PROVIDED BY HOST IS PROVIDED “AS IS.” HOST DOES NOT PROVIDE MECHANICAL COOLING OR BACKUP POWER AND THE DATA CENTER IS SUBJECT TO SWINGS IN LOCAL TEMPERATURE, WIND, HUMIDITY, ETC. HOST MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (iii) WARRANTY AGAINST INTERFERENCE. HOST DOES NOT WARRANT THAT (i) THE SERVICE SHALL BE AVAILABLE 24/7 OR FREE FROM MINOR INTERRUPTIONS; (ii) THE SERVICE SHALL MEET CLIENT’S REQUIREMENTS OTHER THAN AS SET OUT IN THE DOCUMENTATION; OR (iii) THE SERVICE SHALL PROVIDE ANY FUNCTION NOT DESIGNATED IN THE DOCUMENTATION.
6.5. Consequential Damages Waiver. In no event will either Party be liable to the other for any type of incidental, special, exemplary, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost proﬁts, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if such Party was advised of the possibility of such damages, and whether arising under theory of contract, tort, strict liability or otherwise.
6.6. Electronic Communications Privacy Act Notice. Host may monitor any and all communications through or with the Data Center. Client agrees Host is not considered a “secure communications medium” for the purposes of the Electronic Communications Privacy Act of 1986, and that no expectation of privacy is thereby created.
6.7. Security. The Security of Client’s account and any Digital Assets is solely the Client’s responsibility. Client shall notify Host if Client suspects Client’s account or Digital Assets have been hacked, stolen, accessed without authorization, or otherwise compromised. If Host suspects any security violations have occurred related to Client’s account or Digital Assets, Host may suspend access to Client’s account and hardware pending resolution. Host may cooperate in any government or legal investigation regarding any aspect of the Services.
6.8. Legal Processes. Host and its aﬃliates, service providers, and their respective oﬃcers, directors, agents, joint venturers, employees and representatives, may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process, which Host reasonably and in good faith believes to be valid. Host may notify Client of such process by electronic communication. Host may charge Client for associated costs, in addition to any legal process fees. Client agree to indemnify, defend, and hold all of us harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, or damages associated with Host’s compliance with any process that Host reasonably believes in good faith to be valid.
7. Representations, and Indemniﬁcation.
7.1. Mutual Representations. Host represents, warrants and covenants that: (a) Host has full power and authority to enter into this Agreement and perform Host’s obligations hereunder, and (b) Host’s performance of its obligations hereunder will not violate any applicable laws or require the consent of any third party.
7.2. Client Representations. Client represents, warrants and covenants that: (a) Client has full power and authority to enter into this Agreement and perform Client’s obligations hereunder, (b) Client has clear title, free and clear of all security interests or liens, to Client’s equipment, including the legal right to use, operate and locate Client’s Equipment in the Data Center; and (c) Client’s performance of its obligations hereunder and receipt of the Digital Assets will not violate any applicable laws or require the consent of any third party.
7.3. Indemnity. In addition to any other applicable rights under this Agreement, Client agrees to indemnify, defend and hold harmless Host and its oﬃcers, managers, partners, members, agents, employees, aﬃliates, attorneys, heirs, successors and assigns (collectively “Host Parties”) from any and all claims, demands, actions, suits, proceedings, and all damages, judgments, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys’ fees (“Losses”), arising from or relating to (a) any legal, regulatory or governmental action against or including Client, (b) the maintenance or operation of Client’s Equipment, (c) any Loss by any of Client, its oﬃcers, managers, partners, members, agents, employees, aﬃliates, attorneys, heirs, successors or assigns (collectively “Client Parties”), (d) any claim by an aﬃliate of the Client Parties, including a customer o, relating to, or arising out of, this Agreement or the Services (including claims arising from or relating to interruptions, suspensions, failures, defects, delays, impairments or inadequacies in any of the aforementioned Services), (e) any breach or nonperformance by Client Parties of any provision or covenant contained in this Agreement or the Services, or (f) any claim related to Hacking.
8. Mutual Conﬁdentiality.
8.1. Disclosure and Use. Each Party agrees that it will not use in any way, nor disclose to any third party, the other Party’s Conﬁdential Information, and will take reasonable precautions to protect the conﬁdentiality of such information, as stringently as it takes to protect its own Conﬁdential Information, but in no case will the degree of care be less than reasonable care. Nothing herein shall preclude disclosure by a Party to that Party’s attorneys, accountants and employees who have a bona ﬁde need to know the other Party’s Conﬁdential Information in connection with the receiving Party’s performance under this Agreement. Each Party agrees to only make copies of the other’s Conﬁdential Information for purposes consistent with this Agreement, and each Party shall maintain on any such copies a proprietary legend or notice as contained on the original or as the disclosing Party may request. For purposes of this Section 8.01, “Conﬁdential Information” means information which (i) derives actual or potential economic value from not being generally known to, and not available through proper means, by other persons who could obtain economic value from receipt or use of such information, (ii) is the subject of reasonable eﬀorts by its owner to maintain its conﬁdentiality or secrecy, or (iii) is by its nature conﬁdential, trade secrets or otherwise proprietary to its owner. Conﬁdential information includes the terms and conditions of this Agreement, software source and object code, inventions, know-how, data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, conﬁgurations, plans, processes, ﬁnancial and business plans, names of actual or potential Clients or suppliers, Data Center conﬁguration, and proprietary technology developed or created by Host, including Host’s operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, enhancements or extensions thereof.
8.2. Exclusions from Conﬁdentiality Obligations. Notwithstanding the conﬁdentiality obligations required herein, neither Party’s conﬁdentiality obligations hereunder shall apply to information which: (a) is already known to the receiving Party (other than the terms of this Agreement); or (b) is required to be disclosed by Law, provided, however, if either Party is at any time requested or required to disclose any information supplied to it in connection with this Agreement, the Party agrees to provide the other Party with prompt notice of such request.
9.1. Service Failures. Client accepts that Service shall not be available uninterrupted, error-free or on a completely secure basis. Except as set forth in Section 1.06, payments due to Host are not subject to Client’s charge, oﬀset, diminution or other deduction. In the event that Host fails to provide Service and Host determines in its reasonable judgment that such failure was the result of (i) any Force Majeure condition, (ii) any actions or inactions of Client, including any activity under Client’s control or within the obligations undertaken by Client (including, without limitation, Hacking, inaccurate or corrupt data, use of the Services other than in accordance with the directions of Host, failure or inability of Client to receive Digital Assets, failure of the underlying software protocols of the Digital Asset networks, and problems in Client’s local environment), or (iii) Maintenance, then Host shall have no obligation to credit Client any amount for any such failure.
9.2. Time is of the essence in the payment of each and every invoice. If any invoice amount shall be due and unpaid on the ﬁfth (5th) day of any month for which any fees have not been paid in full to Host, Host may (i) terminate Service, (ii) seize and dispose of or sell the Client’s Equipment and use the proceeds to satisfy any amounts due Host by Client, or (iii) turn oﬀ Client’s Equipment, and/or disable Client’s access to accounts until all fees due to Host are paid in full.
9.3. Alternative Dispute Resolution. Except as set forth in this Section 9, any and all disputes, complaints, controversies, claims and grievances arising under, out of, in connection with, or in any manner related to this Agreement or the relationship of Parties hereunder shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The obligation to arbitrate shall extend to any aﬃliate, subsidiary, oﬃcer, employee, shareholder, principal, agent, trustee in bankruptcy or guarantor of a party making or defending any claim hereunder. Any decision and award of the arbitrator shall be ﬁnal, binding and conclusive upon all of the Parties hereto and said decision and award may be entered as a ﬁnal judgment in any court of competent jurisdiction. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in State of Delaware, before one (1) arbitrator who shall be an attorney who has substantial experience in commercial law issues. This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of Delaware (not including the choice of law rules thereof). However, neither Party shall institute an arbitration, or any other proceeding to resolve such disputes between the Parties before that Party has sought to resolve disputes through direct negotiation with the other Party. If disputes are not resolved within three (3) weeks after a demand for direct negotiation, the Parties shall attempt to resolve disputes through mediation conducted in State of Delaware. If the Parties do not agree on a mediator within ten (10) days, either Party may request the American Arbitration Association to appoint a mediator who shall be an attorney who has substantial experience in commercial law issues. If the mediator is unable to facilitate a settlement of disputes within forty-ﬁve (45) days, the mediator shall issue a written statement to the Parties to that eﬀect and the aggrieved Party may then seek relief through arbitration as provided above. The fees and expenses of the mediator shall be split and paid equally by each of the Parties. In the event of any arbitration between the Parties hereto involving this Agreement or the respective rights of the Parties hereunder, the Party who does not prevail in such arbitration shall pay all the prevailing Party’s reasonable attorneys’ and experts’ fees, costs and expenses incurred by the prevailing Party in resolving said matter. As used herein the term ‘prevailing Party’ shall include, but not be limited to, a Party who obtains legal counsel or brings an action against the other by reason of the other’s breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. execution of this Agreement, the Parties consent to the jurisdiction of the American Arbitration Association and waive any objection which either Party may have to any proceeding so commenced based upon improper venue or forum non conveniens.
10. Miscellaneous Provisions.
10.1. Modiﬁcation. This Agreement may be modiﬁed only by a written instrument executed by authorized representatives of each of the Parties.
10.2. Service Agreement. This Agreement is a services agreement and is not intended to and will not constitute a lease of or tenancy or other interest in the Data Center or any of premises owned or leased by Host, any equipment provided by the Host or any other real or personal property
10.3. Storage. In the event of Client Equipment being removed from service, for any reason, if shipment is not arranged for Client Equipment to be removed from the Data Center within thirty (30) days from the date of removal from service, a fee of up to $25 (USD) per Client Equipment unit per month will be charged to the Client.
10.4. Shipping. If shipping of Client Equipment is required, the Client will a) provide the Host with shipping labels, commercial invoices, and any required brokerage documentation, as needed, and/or b) accept the shipping and insurance charges, including any applicable lift gate fees, customs fees, import fees, duties, and/or taxes known at the time of shipment or charges after the fact. There will be a handling fee of up to $20 per Client Equipment unit to prepare it for shipping.
10.5. Relocation of Client Equipment or Client Space. If it is necessary or desirable, for Host’s eﬃcient use of the Data Center, to relocate the Client Equipment or Client Space to another area in the Data Center(s) or in to another facility of the Host, the Parties will cooperate in good faith with each other to facilitate such relocation. Host shall be solely responsible for the costs incurred by Host in connection with any such relocation. Relocation made by Host at the request of Client, will be at the sole expense of Client. Host will use commercially reasonable eﬀorts to minimize and avoid any interruption in Services during such relocation.
If at any time Client’s Equipment causes unacceptable interference to existing or prospective Host customers, Host may require Client to remove or relocate Client’s Equipment at Client’s sole expense. If Client is unable to cure such interference by relocating Client’s Equipment, Host may terminate this Agreement without further obligation to Client under this Agreement.
In the event of an emergency, as determined in Host’s reasonable discretion, Host may rearrange, remove, or relocate Client’s Equipment without any liability to Host. Notwithstanding the foregoing, in the case of emergency, Host shall provide Client, to the extent practicable, reasonable notice prior to rearranging, removing or relocating Client’s Equipment.
Client shall not remove any of Client’s Equipment from the Data Center without the prior written authorization of Host. Client will provide Host with written notiﬁcation a minimum of two (2) days before Client wishes to remove any of Client’s Equipment from the Data Center. Before authorizing the removal of Client’s Equipment, Host will verify that Client has no payments due. Once Host authorizes the removal of Client’s Equipment from the Data Center, Client will remove Client’s Equipment, and shall be solely responsible to bring appropriate packaging and moving materials. If Client uses an agent or other third party to remove Client’s Equipment, Client shall be solely responsible for the acts of such party, and any damages caused by such party to Client’s Equipment or otherwise.
10.6. Force Majeure. Host shall not be responsible for any failure to perform its obligations under this Agreement if such failure is caused by hurricane, war, labor strike, terrorist act, ﬁre, ﬂood, earthquake, natural disaster, act of Government, or other events beyond the Host’s reasonable control.
10.7. Notice. Any notice required to be given hereunder may be delivered or furnished using electronic communications and shall be in writing and shall be deemed to have been delivered when sent.
10.8. Assignment. Neither Party may assign this Agreement or resell the Services, or sublicense or sublease the Services without the prior written consent of the other, provided, however, either Party may freely assign or transfer its rights or obligations under this Agreement if such transfer occurs by operation of law under a bona ﬁde merger, divestiture, consolidation, or reorganization, or to any purchaser of all or substantially all of the assets of the business of the assigning Party, provided the assignee is bound by this Agreement, is ﬁnancially able to complete its obligations, and is not a direct competitor of the nonassigning Party.
10.9. Entire Understanding. This Agreement constitutes the entire understanding and agreement of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, agreements and understandings related to such matters. This Agreement may be executed electronically in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
10.10. Attorneys’ Fees. If either Party retains an attorney to enforce the terms of this Agreement or to collect money due hereunder, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, court costs and other related expenses incurred in connection therewith.
10.11. Independent Contractors. Host and Client are independent contractors; this Agreement will not establish any relationship of partnership or agency. Client has no rights as a tenant or otherwise under any real property or landlord/tenant laws.
10.12. Savings Clause. If any provision of this Agreement is adjudged by a court or arbitrator to be invalid, illegal or unenforceable, the same will not aﬀect the validity, legality, or enforceability of any other provision of this Agreement. All terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law.
10.13. No Waiver. The failure by either Party to enforce any rights hereunder shall not constitute a waiver of such right(s) or of any other or further rights hereunder. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
10.14. Third Party Beneﬁciaries. There shall be no third party beneﬁciaries to this Agreement.
10.15. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware except its conﬂicts of law principles.
10.16. Construction. Capitalized terms used but not deﬁned in this Agreement shall have the meanings given to them in the Deﬁnitions, attached hereto as Schedule A. The recitals and preamble are incorporated herein as if set forth at length.
10.17. Hazardous Conditions. If, in the discretion of Host, its employees or agents, any hazardous conditions arise on, from, or aﬀecting the Data Center, Host is hereby authorized to suspend service under this Agreement without subjecting Host to any liability.
10.18. Lease Agreement. Host leased certain premises in the Data Center from the Data Center’s owner (“Owner”) pursuant to a lease agreement (“Lease”). Pursuant to the Lease, Host has the right to execute and enter into this Agreement for certain space located within the Data Center. Client is not a party to or a beneﬁciary under the Lease and has no rights thereunder.
Updated: November 25, 2022