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Form 10-Q CLEANSPARK, INC. For: Mar 31

May 6, 2021 5:27 PM EDT

 

 

 

 

 

 

 

 

 

 

 

 

NON-FIXED PRICE

 

SALES AND PURCHASE AGREEMENT BETWEEN

Bitmain Technologies Limited (“Bitmain”)

 

AND

 

CleanSpark Inc. (“Purchaser”)

 

 

 

 

 

 

 

 

 

 

  
 

 

1.                Definitions and Interpretations 3
2.                Sales of Product(s) 5
3.                Prices and Terms of Payment 6
4.                Product Discount 7
5.                Shipping of Product(s) 7
6.                Customs 9
7.                Warranty 10
8.                Representations and Warranties 11
9.                Indemnification and Limitation of Liability 13
10.            Distribution 13
11.            Intellectual Property Rights 14
12.            Confidentiality and Communications 14
13.            Term of this Agreement 15
14.            Contact Information 15
15.            Compliance with Laws and Regulations 15
16.            Force Majeure 17
17.            Entire Agreement and Amendment 17
18.            Assignment 17
19.            Severability 17
20.            Personal Data 17
21.            Conflict with the Terms and Conditions 18
22.            Governing Law and Dispute Resolution 18
23.            Waiver 18
24.            Counterparts and Electronic Signatures 18
25.            Further Assurance 19
26.            Third Party Rights 19
27.            Liquidated Damages Not Penalty 19

 

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This non-fixed price sales and purchase agreement (this “Agreement”) is made on April 12, 2021 by and between Bitmain Technologies Limited (“Bitmain”) (Company number: 2024301), with its registered office at Unit A1 of Unit A, 11th Floor, Success Commercial Building, 245-251 Hennessy Road, Hong Kong, and CleanSpark Inc. (the “Purchaser”) (Company ID: 87-0449945), with its principal place of business at 1185 South 1800 West, Suite 3 Woods Cross Utah 84087.

 

Bitmain and the Purchaser shall hereinafter collectively be referred to as the “Parties”, and individually as a “Party”.

 

Whereas:

 

1.Purchaser fully understands the market risks, the price-setting principles and the market fluctuations relating to the Products sold under this Agreement.

 

2.Purchaser has purchased the Products through the website of Bitmain (i.e., https://shop.bitmain.com/, similarly hereinafter) for many times, and is familiar with the purchase order processes of Bitmain’s website.

 

3.Based on the above consensus, the Purchaser is willing to purchase and Bitmain is willing to supply cryptocurrency mining hardware and other equipment in accordance with the terms and conditions of this Agreement.

 

The Parties hereto agree as follows:

 

1.Definitions and Interpretations

 

The following terms, as used herein, have the following meanings:

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person; “Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity (whether or not having separate legal personality); and “Control” means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.

 

“Applicable Law” means any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal force under any system of law, including, without limitation, local law, law of any other state or part thereof or international law, and which creates or purports to create any requirement or rule that may

 

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affect, restrict, prohibit or expressly allow the terms of this Agreement or any activity contemplated or carried out under this Agreement.

 

“Bank Account” means the bank account information of Bitmain provided in Appendix A of this Agreement.

 

“Force Majeure” means in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents or hinders that Party from performing any obligation imposed upon that Party under this Agreement, including to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist activities, acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions, quarantine restrictions, epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions and regulatory and administrative or similar action or delays to take actions of any governmental authority.

 

“Intellectual Property Rights” means any and all intellectual property rights, including but not limited to those concerning inventions, patents, utility models, registered designs and models, engineering or production materials, drawings, trademarks, service marks, domain names, applications for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or business sensitive information and/or technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.

 

“Order” means the Purchaser’s request to Bitmain for certain Product(s) in accordance with this Agreement.

 

“Product(s)” means the merchandise that Bitmain will provide to the Purchaser in accordance with this Agreement.

 

“Total Purchase Price” means the aggregate amount payable by the Purchaser as set out in Appendix A of this Agreement.

 

“Warranty Period” means the period of time that the Product(s) are covered by the warranty granted by Bitmain or its Affiliates in accordance with Clause 7 of this Agreement.

 

“Warranty Start Date” means the date on which the Product(s) are delivered to the carrier. Interpretations:

i)Words importing the singular include the plural and vice versa where the context so requires.

 

ii)The headings in this Agreement are for convenience only and shall not be taken into consideration in the interpretation or construction of this Agreement.

 

iii)References to Clauses and Appendix(es) are references to Clauses and Appendix(es) of this Agreement.

 

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iv)Unless specifically stated otherwise, all references to days shall mean calendar days.

 

v)Any reference to a code, law, statute, statutory provision, statutory instrument, order, regulation or other instrument of similar effect shall include any re-enactment or amendment thereof for the time being in force.

 

2.Sales of Product(s)

 

Bitmain will provide the Product(s) set forth in Appendix A (attached hereto as part of this Agreement) to the Purchaser in accordance with provisions of Clause 2, Clause 3, Clause 4, Clause 5 and Appendix A of this Agreement, and the Purchaser shall make payment in accordance with the terms specified in this Agreement.

 

2.1.Both Parties agree that the Product(s) shall be sold in accordance with the following steps:

 

(i)The Purchaser shall place Order through Bitmain’s website or through other methods accepted by Bitmain, and such Order shall constitute an irrevocable offer to purchase specific Product(s) from Bitmain.

 

(ii)After receiving the Order, Bitmain will send an order receipt confirmation email to the Purchaser. The Purchaser’s Order will be valid for a period of twenty-four (24) hours after its placement, and upon expiration of such period, Bitmain will have the right to cancel the Order at its sole discretion if the Purchaser fails to pay the down payment in accordance with Appendix A of this Agreement.

 

(iii)The Purchaser shall pay the Total Purchase Price in accordance with Appendix A of this Agreement.

 

(iv)Upon receipt of the Total Purchase Price, Bitmain will provide a payment receipt to the Purchaser.

 

(v)Bitmain will send a shipping confirmation to the Purchaser after it has delivered the Product(s) to the carrier, and the Order shall be deemed accepted by Bitmain upon Bitmain’s issuance of the shipping confirmation.

 

2.2.Both Parties acknowledge and agree that the order receipt confirmation and the payment receipt shall not constitute nor be construed as Bitmain’s acceptance of the Purchaser’s Order, but mere acknowledgement of the receipt of the Order and the Total Purchase Price.

 

2.3.Both Parties acknowledge and agree that in case of product unavailability, Bitmain shall have the right to cancel the Order after it has issued the order receipt confirmation, the payment receipt or the shipping confirmation without any penalty or liability.

 

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2.4.The Purchaser acknowledges and confirms that the Order is irrevocable and cannot be cancelled by the Purchaser, and that the Product(s) ordered are neither returnable nor refundable. All sums paid by the Purchaser to Bitmain shall not be subject to any abatement, set-off, claim, counterclaim, adjustment, reduction, or defense for any reason. Down payment and payment of Total Purchase Price are not refundable, save as otherwise mutually agreed by the Parties.

 

3.Prices and Terms of Payment

 

3.1The Total Purchase Price (inclusive of any tax payable) shall be paid in accordance with the payment schedule set forth in Appendix B of this Agreement.

 

3.2In the event that the Purchaser fails to fully settle the respective percentage of the Total Purchase Price before the prescribed deadlines and fails to make a written request to Bitmain no less than five (5) business days prior to the prescribed deadline and obtain Bitmain’s written consent, Bitmain shall be entitled to terminate this Agreement and the Purchase shall be liable for a reasonable liquidated damage (not a penalty) of 20% of the purchase price of such batch of Products. If there are any remaining balance after deducting the liquidated damage, such remaining balance shall be refunded to the Purchaser free of any interest. If the Purchaser fails to pay the down payment on a timely basis and Bitmain has arranged production or procurement, Bitmain shall be entitled to request the Purchaser to be responsible for the loss related to such production or procurement.

 

3.3The Total Purchase Price set forth in this Agreement is merely an estimate of the price and not the actual price. The actual price will be determined one month before the current batch is shipped and with reference to the market circumstances, provided that the actual price shall not be higher than the estimated price.

 

3.4Upon receipt of notification of the actual price provided by Bitmain, the Purchaser shall be entitled to three options:
(i)continue to perform the Order of the current batch of the Product(s) with the original rated hashrate and pay the remaining amount at the actual price; or
(ii)request Bitmain to increase the rated hashrate in equivalent to the difference in price. Under this circumstance, Bitmain shall have the right to negotiate with the Purchaser for the amount of the additional rated hashrate based on its then inventory; or
(iii)partially or wholly cancel the Order of the current batch of Product(s). Under this circumstance, the Purchaser shall not claim any refund from Bitmain. If the Purchaser has made payments and there is remaining balance, such remaining balance shall be credited to the balance of the Purchaser and its affiliates.

Furthermore, the Purchaser shall confirm in writing the result of its exercise of the options under this Clause within two (2) days after Bitmain provides the Purchaser with the actual price, and if it is overdue and no agreement is reached between the

 

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Parties, the Purchaser shall be deemed to have voluntarily and irrevocably waived its option under this Clause and the Parties shall continue to perform the Order of the current batch of Product(s) with the original rated hashrate and the Purchaser shall pay the remaining amount at the actual price.

 

3.5The Parties understand and agree that the applicable prices of the Product(s) are inclusive of applicable bank transaction fee, but are exclusive of any and all applicable import duties, taxes and governmental charges. The Purchaser shall pay or reimburse Bitmain for all taxes levied on or assessed against the amounts payable hereunder. If any payment is subject to withholding, the Purchaser shall pay such additional amounts as necessary, to ensure that Bitmain receives the full amount it would have received had payment not been subject to such withholding.

4.Product Discount

 

Based on the sales results and sales strategy, Bitmain is willing to offer the following discount as set forth in clause 4.1:

 

4.1.With respect of the signing of this Agreement, Bitmain offers the following discount to the Purchaser:

 

4.1.1.The Products under this Agreement consists of twelve (12) batches and the discount amount of each batch shall be calculated separately.

 

4.1.2.Bitmain may provide difference discounts to the Purchaser based on the actual amount of the prepayment and the payment time.

 

Discount Amount = Amount of prepayment * 1% * Number of months prepaid. The amount of prepayment shall be calculated at the end of each month. The number of months prepaid shall be calculated from the month of payment without counting the month of delivery. For clarification, the payment date shall be the date as evidenced in the remittance copy of such payment, and the discount term shall be calculated when the respective amounts under this Agreement have been received by Bitmain in full and without further consideration of the remaining amount. Payment schedules may be further adjusted in accordance with the actual situations.

 

4.1.3.If the Purchaser fails to make the payments on time, the discount applicable to such batch shall be cancelled.

4.2.       No discount will be offered by Bitmain to the Purchaser.

 

5.Shipping of Product(s)

 

5.1.Bitmain shall deliver the Products in accordance with the shipping schedule to the first carrier or the carrier designated by the Purchaser.

 

5.2.Subject to the limitations stated in Appendix A, the terms of delivery of the Product(s) shall be CIP (carriage and insurance paid to (named place of destination) according to Incoterms 2010) to the place of delivery designated by the Purchaser. Once the

 

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Product(s) have been delivered to the carrier, Bitmain shall have fulfilled its obligation to supply the Product(s) to the Purchaser, and the title and risk of loss or damage to the Product(s) shall pass to the Purchaser.

 

5.3.In the event of any discrepancy between this Agreement and Bitmain’s cargo insurance policy regarding the insurance coverage, the then effective Bitmain cargo insurance policy shall prevail, and Bitmain shall be required to provide the then effective insurance coverage to the Purchaser.

 

5.4.If Bitmain fails to deliver the Products after thirty (30) days after the prescribed deadline, the Purchaser shall be entitled to cancel the Order of such batch of Products and request Bitmain to refund the price of such undelivered batch of Products together with an interest at 0.0333% per day for the period from the next day of each payment of the price of such batch of Products to the date immediately prior to the request. In the event that the Purchaser does not cancel the Order of the undelivered batch of Products and requests Bitmain to perform its delivery obligation, Bitmain shall continue to perform its delivery obligation and compensate the Purchaser in accordance with Clause 5.5 of this Agreement.

 

5.5.If Bitmain postpones the shipping schedule of the Products and the Purchaser does not cancel the Order, Bitmain shall make a compensation to the Purchaser on daily basis, the amount of which shall equal to 0.0333% of the price of such undelivered batch of Products, which compensation shall be made in the form of delivery of more rated hashrate. Amount less than one unit of Product shall be credited to the balance of the Purchaser in the user system on Bitmain’s official website, which shall be viewable by the Purchaser.

 

5.6.There are twelve (12) batches of Products under this Agreement and each batch shall constitute independent legal obligations of and shall be performed separately by the Parties. The delay of a particular batch shall not constitute waiver of the payment obligation of the Purchaser in respect of other batches. The Purchaser shall not be entitled to terminate this Agreement solely on the ground of delay of delivery of a single batch of Products.

 

5.7.The purchaser shall choose the following shipping method:

 

Shipping by Bitmain via Fedex/DHL/UPS/other logistics company□Self-pick

 

Note: Logistics costs shall be borne by the Purchaser. Bitmain may collect payments on behalf of the services providers and issue services invoices if the Purchaser requests Bitmain to send the Products.

 

5.8.Bitmain shall not be responsible for any delivery delay caused by the Purchaser or any third party, including but not limited to the carrier, the customs, and the import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise, for any failure, delay or error in delivery of any Product(s) for any reason whatsoever.

 

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5.9.Bitmain shall not be responsible and the Purchaser shall be fully and exclusively responsible for any loss of Product(s), personal injury, property damage, other damage or liability caused by the Product(s) or the transportation of the Product(s) either to the Purchaser or any third party, or theft of the Product(s) during transportation from Bitmain to the Purchaser.

 

5.10.Bitmain has the right to discontinue the sale of the Product(s) and to make changes to its Product(s) at any time, without prior approval from or notice to the Purchaser.

 

5.11.If the Product(s) is rejected and/or returned back to Bitmain because of any reason and regardless of the cause of such delivery failure, the Purchaser shall be solely and exclusively liable for and shall defend, fully indemnify and hold harmless Bitmain against any and all related expenses, fees, charges and costs incurred, arising out of or incidental to such rejection and/or return (the “Return Expense”). Furthermore, if the Purchaser would like to ask for Bitmain’s assistance in redelivering such Product(s) or assist in any other manner, and if Bitmain at its sole discretion decides to provide this assistance, then in addition to the Return Expense, the Purchaser shall also pay Bitmain an administrative fee in accordance with Bitmain’s then applicable internal policy.

 

5.12.If the Purchaser fails to provide Bitmain with the delivery place or the delivery place provided by the Purchaser is a false address or does not exist, or the Purchaser reject to accept the Products, any related costs occurred (including storage costs, warehousing charge and labor costs) shall be borne by the Purchaser. Bitmain may issue the Purchaser a notice of self-pick-up and ask the Purchaser to pick up the Products itself. Bitmain shall be deemed to have completed the delivery obligation under this Agreement after two (2) business days following the issue of the self-pick- up notice. After 30 days of the self-pick-up notice, the Purchaser shall be entitled to deal with the Products in any manner as it deems appropriate.

 

5.13.The Purchaser shall inspect the Products within 2 days (the “Acceptance Time”) after receiving the Products (the date of signature on the carrier’s delivery voucher shall be the date of receipt), if the Purchaser does not raise any written objection within the agreed Acceptance Time, the Products delivered by Bitmain shall be deemed to be in full compliance with the provisions of this Agreement.

 

6.Customs

 

6.1.Bitmain shall obtain in due time and maintain throughout the term of this Agreement (if applicable), any and all approvals, permits, authorizations, licenses and clearances for the export of the Product(s) that are required to be obtained by Bitmain or the carrier under Applicable Laws.

 

6.2.The Purchaser shall obtain in due time and maintain throughout the term of this Agreement (if applicable), any and all approvals, permits, authorizations, licenses and clearances required for the import of the Product(s) to the country of delivery as indicated in the shipping information, that are required to be obtained by the

 

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Purchaser or the carrier under Applicable Laws, and shall be responsible for any and all additional fees, expenses and charges in relation to the import of the Product(s).

 

7.Warranty

 

7.1.The Warranty Period shall start on the Warranty Start Date and end on the 365th day after the Warranty Start Date. During the Warranty Period, the Purchaser’s sole and exclusive remedy, and Bitmain’s entire liability, will be to repair or replace, at Bitmain’s option, the defective part/component of the Product(s) or the defective Product(s) at no charge to the Purchaser. If the Purchaser requires Bitmain to provide any warranty services, the Purchaser shall create a maintenance order on Bitmain’s website during the Warranty Period (the time of creation of the maintenance order shall be determined by the display time of such order on Bitmain’s website) and send the Product to the place designated by Bitmain within the time limit required by Bitmain. Otherwise, Bitmain shall be entitled to refuse to provide the warranty service.

 

7.2.The Parties acknowledge and agree that the warranty provided by Bitmain as stated in the preceding paragraph does not apply to the following:

 

(i)normal wear and tear;

 

(ii)damage resulting from accident, abuse, misuse, neglect, improper handling or improper installation;

 

(iii)damage or loss of the Product(s) caused by undue physical or electrical stress, including but not limited to moisture, corrosive environments, high voltage surges, extreme temperatures, shipping, or abnormal working conditions;

 

(iv)damage or loss of the Product(s) caused by acts of nature including, but not limited to, floods, storms, fires, and earthquakes;

 

(v)damage caused by operator error, or non-compliance with instructions as set out in accompanying documentation;

 

(vi)alterations by persons other than Bitmain, associated partners or authorized service facilities;

 

(vii)Product(s), on which the original software has been replaced or modified by persons other than Bitmain, associated partners or authorized service facilities;

 

(viii)counterfeit products;

 

(ix)damage or loss of data due to interoperability with current and/or future versions of operating system, software and/or hardware;

 

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(x)damage or loss of data caused by improper usage and behavior which is not recommended and/or permitted in the product documentation;

 

(xi)failure of the Product(s) caused by usage of products not supplied by Bitmain; and

 

(xii)hash boards or chips are burnt.

 

In case the warranty is voided, Bitmain may, at its sole discretion, provide repair service to the Purchaser, and the Purchaser shall bear all related expenses and costs.

 

7.3.Notwithstanding anything to the contrary herein, the Purchaser acknowledges and agrees that the Product(s) provided by Bitmain do not guarantee any cryptocurrency mining time and, Bitmain shall not be liable for any cryptocurrency mining time loss or cryptocurrency mining revenue loss that are caused by downtime of any part/component of the Product(s). Bitmain does not warrant that the Product(s) will meet the Purchaser’s requirements or the Product(s) will be uninterrupted or error free. Except as provided in Clause 7.1 of this Agreement, Bitmain makes no warranties to the Purchaser with respect to the Product(s), and no warranties of any kind, whether written, oral, express, implied or statutory, including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing or usage in trade shall apply.

 

7.4.In the event of any ambiguity or discrepancy between this Clause 7 of this Agreement and Bitmain’s After-sales Service Policy from time to time, it is intended that the After-sales Service Policy shall prevail and the Parties shall comply with and give effect to the After-sales Service Policy. Please refer to the website of Bitmain for detailed terms of warranty and after-sales maintenance. Bitmain has no obligation to notify the Purchaser of the update or modification of such terms.

 

7.5.During the warranty period, if the hardware product needs to be repaired or replaced, the Purchaser shall bear the logistics costs of shipping the Product to the address designated by Bitmain, and Bitmain shall bear the logistics costs of shipping back the repaired or replaced Product to the address designated by the Purchaser. The Purchaser shall bear all and any additional costs incurred due to incorrect or incomplete delivery information provided by the Purchaser and all and any risks of loss or damage to the Product, or the parts or components of the Products during the transportation period (including the transportation period when the product is sent to Bitmain and returned by Bitmain to the Purchaser).

 

8.Representations and Warranties

 

The Purchaser makes the following representations and warranties to Bitmain:

 

8.1.It has the full power and authority to own its assets and carry on its businesses.

 

8.2.The obligations expressed to be assumed by it under this Agreement are legal, valid, binding and enforceable obligations.

 

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8.3.It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement.

 

8.4.The entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with:

 

(i)any Applicable Law;

 

(ii)its constitutional documents; or

 

(iii)any agreement or instrument binding upon it or any of its assets.

 

8.5.All authorizations required or desirable:

 

(i)to enable it lawfully to enter into, exercise its rights under and comply with its obligations under this Agreement;

 

(ii)to ensure that those obligations are legal, valid, binding and enforceable; and

 

(iii)to make this Agreement admissible in evidence in its jurisdiction of incorporation,

 

have been or will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.

 

8.6.It is not aware of any circumstances which are likely to lead to:

 

(i)any authorization obtained or effected not remaining in full force and effect;

 

(ii)any authorization not being obtained, renewed or effected when required or desirable; or

 

(iii)any authorization being subject to a condition or requirement which it does not reasonably expect to satisfy or the compliance with which has or could reasonably be expected to have a material adverse effect.

 

8.7.(a) It is not the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or Singapore (“Sanctions”), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs or other Persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the target of Sanctions, and (b) the purchase of the Product(s) will not violate any Sanctions or import and export control related laws and regulations.

 

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8.8.All information supplied by the Purchaser is and shall be true and correct, and the information does not contain and will not contain any statement that is false or misleading.

 

9.Indemnification and Limitation of Liability

 

9.1.The Purchaser shall, during the term of this Agreement and at any time thereafter, indemnify and save Bitmain and/or its Affiliates harmless from and against any and all damages, suits, claims, judgments, liabilities, losses, fees, costs or expenses of any kind, including legal fees, whatsoever arising out of or incidental to the Products pursuant to this Agreement.

 

9.2.Notwithstanding anything to the contrary herein, Bitmain and its Affiliates shall under no circumstances, be liable to the Purchaser for any consequential loss, or loss of goodwill, business, anticipated profits, revenue, contract, or business opportunity arising out of or in connection with this Agreement, and the Purchaser hereby waives any claim it may at any time have against Bitmain and its Affiliates in respect of any such damages. The foregoing limitation of liability shall apply whether in an action at law, including but not limited to contract, strict liability, negligence, willful misconduct or other tortious action, or an action in equity.

 

9.3.Bitmain and its Affiliates’ cumulative aggregate liability pursuant to this Agreement, whether arising from tort, breach of contract or any other cause of action shall be limited to and not exceed the amount of one hundred percent (100%) of the down payment actually received by Bitmain from the Purchaser for the Product(s).

 

9.4.The Product(s) are not designed, manufactured or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation, such as the operation of nuclear facilities, aircraft navigation or communication systems or in any other applications or activities in which failure of the Product(s) may pose the risk of environmental harm or physical injury or death to humans. Bitmain specifically disclaims any express or implied warranty of fitness for any of the above described application and any such use shall be at the Purchaser’s sole risk.

 

9.5.The above limitations and exclusions shall apply (1) notwithstanding failure of essential purpose of any exclusive or limited remedy; and (2) whether or not Bitmain has been advised of the possibility of such damages. This Clause allocates the risks under this Agreement and Bitmain’s pricing reflects this allocation of risk and the above limitations.

 

10.Distribution

 

10.1.This Agreement does not constitute a distributor agreement between Bitmain and the Purchaser. Therefore, the Purchaser is not an authorized distributor of Bitmain.

 

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10.2.The Purchaser shall in no event claim or imply to a third party that it is an authorized distributor of Bitmain or Bitmain (Antminer) or any similar terms, or perform any act that will cause it to be construed as an authorized distributor of Bitmain or Bitmain (Antminer). As between the Purchaser and Bitmain, the Purchaser shall be exclusively and fully responsible for complying with the Applicable Laws regarding repackaging the Product(s) for the Purchaser’s redistribution needs, and shall be solely liable for any and all liabilities or costs directly incurred or incidental to such redistribution.

 

11.Intellectual Property Rights

 

11.1.The Parties agree that the Intellectual Property Rights in any way contained in the Product(s), made, conceived or developed by Bitmain and/or its Affiliates for the Product(s) under this Agreement and/or, achieved, derived from, related to, connected with the provision of the Product(s) by Bitmain and/or acquired by Bitmain from any other person in performance of this Agreement shall be the exclusive property of Bitmain and/or its Affiliates.

 

11.2.Notwithstanding anything to the contrary herein, all Intellectual Property Rights in the Product(s) shall remain the exclusive property of Bitmain and/or its licensors. Except for licenses explicitly identified in Bitmain’s Shipping Confirmation or in this Clause 11.2, no rights or licenses are expressly granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of Bitmain and/or its Affiliates or any Intellectual Property residing in the Product(s) provided by Bitmain to the Purchaser, including in any documentation or any data furnished by Bitmain. Bitmain grants the Purchaser a non-exclusive, non-transferrable, royalty- free and irrevocable license of Bitmain and/or its Affiliates’ Intellectual Property Rights to solely use the Product(s) delivered by Bitmain to the Purchaser for their ordinary function, and subject to the Clauses set forth herein. The Purchaser shall in no event violate the Intellectual Property Rights of Bitmain and/or its licensors.

 

11.3.If applicable, payment by the Purchaser of non-recurring charges to Bitmain for any special designs, or engineering or production materials required for Bitmain’s performance of Orders for customized Product(s), shall not be construed as payment for the assignment from Bitmain to the Purchaser of title to the design or special materials. Bitmain shall be the sole owner of such special designs, engineering or production materials.

 

12.Confidentiality and Communications

 

12.1.All information concerning this Agreement and matters pertaining to or derived from the provision of Product(s) pursuant to this Agreement between the Parties, whether in oral or written form, or in the form of drawings, computer programs or other, as well as all data derived therefrom (“Confidential Information”), shall be deemed to be confidential and, as such, may not be divulged to any unauthorized person without express written permission by both parties or unless required by law. The Purchaser undertakes and agrees to take all reasonable and practicable steps to ensure and protect the confidentiality of the Confidential Information which cannot be passed, sold, traded, published or disclosed to any unauthorized person.

 

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13.Term of this Agreement

 

13.1.This Agreement will be effective upon Bitmain’s issuance of the shipping confirmation to the Purchaser, provided that if there is more than one shipping confirmation, this Agreement will be effective to the Products contained in each shipping confirmation upon Bitmain’s issuance of the respective shipping confirmation to the Purchaser.

 

13.2.This Agreement shall remain effective up to and until the delivery of the last batch of Products.

 

14.Contact Information

 

All communications in relation to this Agreement shall be made to the following contacts:

 

Purchaser’s business contact:

Name: Zachary Bradford

Phone: _______________

Email: _______________

Bitmain’s business contact:

Name: Qingqing Miao

Phone: _______________

 

Email: _______________

 

15.Compliance with Laws and Regulations

 

15.1.The Purchaser undertakes that it will fully comply with all Applicable Laws in relation to export and import control and Sanctions and shall not take any action that would cause Bitmain or any of its Affiliates to be in violation of any export and import control laws or Sanctions. The Purchaser shall also be fully and exclusively liable for and shall defend, fully indemnify and hold harmless Bitmain and/or its Affiliates from and against any and all claims, demands, actions, costs or proceedings brought or instituted against Bitmain and/or its Affiliates arising out of or in connection with any breach by the Purchaser or the carrier of any Applicable Laws in relation to export and import control or Sanction.

 

15.2.The Purchaser acknowledges and agrees that the Product(s) in this Agreement are subject to the export control laws and regulations of all related countries, including

 

 15 
 

 

but not limited to the Export Administration Regulations (“EAR”) of the United States. Without limiting the foregoing, the Purchaser shall not, without receiving the proper licenses or license exceptions from all related governmental authorities, including but not limited to the U.S. Bureau of Industry and Security, distribute, re- distribute, export, re-export, or transfer any Product(s) subject to this Agreement either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:1 as defined in the EARs. In addition, the Product(s) under this Agreement may not be exported, re-exported, or transferred to (a) any person or entity for military purposes; (b) any person or entity listed on the “Entity List”, “Denied Persons List” or the SDN List as such lists are maintained by the U.S. Government, or (c) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. The Purchaser further agrees that it will not do any of the foregoing in violation of any restriction, law, or regulation of the European Union or an individual EU member state that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau of Industry and Security.

 

15.3.The Purchaser undertakes that it will not take any action under this Agreement or use the Product(s) in a way that will be a breach of any anti-money laundering laws, any anti-corruption laws, and/or any counter-terrorist financing laws.

 

15.4.The Purchaser warrants that the Product(s) have been purchased with funds that are from legitimate sources and such funds do not constitute proceeds of criminal conduct, or realizable property, or proceeds of terrorism financing or property of terrorist, within the meaning given in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) and the Terrorism (Suppression of Financing) Act (Chapter 325), respectively. If Bitmain receives, including but not limited to investigation, evidence collection, restriction and other measures, from any competent organizations or institutions, the Purchaser shall immediately cooperate with Bitmain and such competent organizations or institutions in the investigation process, and Bitmain may request the Purchaser to provide necessary security if so required. The Purchaser understands that if any Person resident in Singapore knows or suspects or has reasonable grounds for knowing or suspecting that another Person is engaged in criminal conduct or is involved with terrorism or terrorist property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment, the Person will be required to report such knowledge or suspicion to the Suspicious Transaction Reporting Office, Commercial Affairs Department of the Singapore Police Force. The Purchaser acknowledges that such a report shall not be treated as breach of confidence or violation of any restriction upon the disclosure of information imposed by any Applicable Law, contractually or otherwise.

 

 16 
 

 

16.Force Majeure

 

16.1.To the extent that a Party is fully or partially delayed, prevented or hindered by an event of Force Majeure from performing any obligation under this Agreement (other than an obligation to make payment), subject to the exercise of reasonable diligence by the affected Party, the failure to perform shall be excused by the occurrence of such event of Force Majeure. A Party claiming that its performance is excused by an event of Force Majeure shall, promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature, date of inception and expected duration of such event of Force Majeure and the extent to which the Party expects that the event will delay, prevent or hinder the Party from performing its obligations under this Agreement. The notifying Party shall thereafter use its best effort to eliminate such event of Force Majeure and mitigate its effects.

 

16.2.The affected Party shall use reasonable diligence to remove the event of Force Majeure, and shall keep the other Party informed of all significant developments.

 

16.3.Except in the case of an event of Force Majeure, neither party may terminate this Agreement prior to its expiry date.

 

17.Entire Agreement and Amendment

 

This Agreement, constitutes the entire agreement of the Parties hereto and can only be amended with the written consent of both Parties or otherwise as mutually agreed by both Parties.

 

18.Assignment

 

18.1.Bitmain may freely assign or transfer any of its rights, benefits or obligations under this Agreement in whole or in part to its Affiliates or to any third party. The Purchaser may not assign or transfer any of its rights, benefits or obligations under this Agreement in whole or in part without Bitmain’s prior written consent.

 

18.2.This Agreement shall be binding upon and enure to the benefit of each Party to this Agreement and its successors in title and permitted assigns.

 

19.Severability

 

To the extent possible, if any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part by a court, the provision shall apply with whatever deletion or modification is necessary so that such provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. The remaining provisions of this Agreement shall not be affected and shall remain in full force and effect.

 

20.Personal Data

 

Depending on the nature of the Purchaser’s interaction with Bitmain, some examples of

 

 17 
 

 

personal data which Bitmain may collect from the Purchaser include the Purchaser’s name and identification information, contact information such as the Purchaser’s address, email address and telephone number, nationality, gender, date of birth, and financial information such as credit card numbers, debit card numbers and bank account information.

 

Bitmain generally does not collect the Purchaser’s personal data unless (a) it is provided to Bitmain voluntarily by the Purchaser directly or via a third party who has been duly authorized by the Purchaser to disclose the Purchaser’s personal data to Bitmain (the Purchaser’s “authorized representative”) after (i) the Purchaser (or the Purchaser’s authorized representative) has been notified of the purposes for which the data is collected, and (ii) the Purchaser (or the Purchaser’s authorized representative) has provided written consent to the collection and usage of the Purchaser’s personal data for those purposes, or

(b) collection and use of personal data without consent is permitted or required by related laws. Bitmain shall seek the Purchaser’s consent before collecting any additional personal data and before using the Purchaser’s personal data for a purpose which has not been notified to the Purchaser (except where permitted or authorized by law).

 

21.Conflict with the Terms and Conditions

 

In the event of any ambiguity or discrepancy between the Clauses of this Agreement and the Terms and Conditions from time to time, it is intended that the Clauses of this Agreement shall prevail and the Parties shall comply with and give effect to this Agreement.

 

22.Governing Law and Dispute Resolution

 

22.1.This Agreement shall be solely governed by and construed in accordance with the laws of Hong Kong.

 

22.2.Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination hereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Center under the UNCITRAL Arbitration Rules in force when the notice of arbitration is submitted. The decision and awards of the arbitration shall be final and binding upon the parties hereto.

 

23.Waiver

 

Failure by either Party to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving Party to thereafter enforce each and every such provision or option.

 

24.Counterparts and Electronic Signatures

 

This Agreement may be executed in one or more counterparts, each of which will be

 

 18 
 

 

deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.

 

25.Further Assurance

 

Each Party undertakes to the other Party to execute or procure to be executed all such documents and to do or procure to be done all such other acts and things as may be reasonable and necessary to give all Parties the full benefit of this Agreement.

 

26.Third Party Rights

 

A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce or to enjoy the benefit of any term of this Agreement.

 

27.Liquidated Damages Not Penalty

 

It is expressly agreed that any liquidated damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith for such specific liquidated damages and having agreed that the amount of such liquidated damages is reasonable in light of the anticipated harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or nonfeasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of such liquidated damages.

 

 

(The rest part of the page is intentionally left in blank)

 

 

 

 

 

 

 19 
 

 

Signed for and on behalf of Bitmain

 

 

Bitmain Technologies Limited

 

 

Signature

Title

 

 

Signed for and on behalf of the Purchaser

 

CleanSpark Inc.

 

 

Signature

Title

 

 20 
 

 

APPENDIX

1.Products:

 

1.1. The information (including but not limited to the quantity, rated hashrate, estimated unit price (“Unit Price”), estimated total price(“Total Price (One Item)”), total price for all the items (“Total Purchase Price”) of Products to be purchased by Party B from Party A is as follows (“Products”):

 

1.1.1Product Type

 

Type Details
Product Name Super Computing Server S19j Pro
Rated hashrate / unit ~100TH/s
Rated power / unit ~2950W
J/T@25 °C environment temperature

 

~29.5

 

 

 

 

 

Description

1.        Bitmain undertakes that the error range of “J/T@25°C environment temperature”does not exceed 10%.

2.        “Rated hashrate / unit” and “rated power / unit” are for reference only and may defer from each batch or unit. Bitmain makes no representation on “Rated hashrate / unit” and “rated power / unit .

3.        Purchaser shall not reject the Products on the grounds that the actual parameters of the delivered Products are not in consistence with the reference indicators.

 

1.1.2The estimated delivery schedule, reference quantity, total rated hashrate, unit price and total price are as follows:

 

 21 
 

 

 

Batch

 

Product Name

Shipping Schedule Reference Quantity Total Rated Hashrate (T) Estimated Price/T (US$/T) Estimated Unit Price (US$) Estimated Total Price
(US$)
1

 

 

 

 

 

 

 

 

 

Hash Super Comput ing Server, S19j

pro

August 2021 600 60,000 83.77 8,377 5,026,200
2 September 2021 600 60,000 83.77 8,377 5,026,200
3 October 2021 600 60,000 83.77 8,377 5,026,200
4 November 2021 600 60,000 77.01 7,701 4,620,600
5 December 2021 600 60,000 77.01 7,701 4,620,600
6 January 2022 600 60,000 77.01 7,701 4,620,600
7 February 2022 600 60,000 64.85 6,485 3,891,000
8 March 2022 600 60,000 64.85 6,485 3,891,000
9 April 2022 600 60,000 64.85 6,485 3,891,000
10 May 2022 600 60,000 58.1 5,810 3,486,000
11 June 2022 600 60,000 58.1 5,810 3,486,000
12 July 2022 600 60,000 58.1 5,810 3,486,000

 

 

1.1.3        Estimated Total price of the Products listed above: Estimated Total Purchase Price (tax exclusive): US$51,071,400 Tax: US$0

Estimated Total Purchase Price (tax inclusive): US$51,071,400

 

1.2.Both Parties confirm and agree that Bitmain may adjust the total quantity based on the total hashrate provided that the total hashrate of the Product(s) actually delivered by Bitmain to the Purchaser shall not be less than the total rated hashrate agreed in Article 1.1 of this Appendix A. Bitmain makes no representation that the quantity of the actually delivered Products shall be the same as the quantity set forth in Article 1.1. of this Appendix A.

 

 22 
 

 

1.3.In the event that Bitmain publishes any new type of products with less J/T value and suspends the production of the type of the Products as agreed in this Agreement, Bitmain shall be entitled to release itself from any future obligation to deliver any subsequent Products by 10-day prior notice to the Purchaser and continue to deliver new types of Products, the total rated hashrate of which shall be no less than such subsequent Products cancelled under this Agreement and the price of which shall be adjusted in accordance with the J/T value. In the event that the Purchaser explicitly refuses to accept new types of Products, the Purchaser is entitled to request for a refund of the remaining balance of the purchase price already paid by the Purchaser together with an interest at 0.0333% per day on such balance for the period from the next day following the payment date of such balance to the date immediately prior to the date of request of refund. If the Purchaser accepts the new types of Products delivered by Bitmain, Bitmain shall be obliged to deliver such new types of Products to fulfill its obligations under this Agreement. The Purchaser may request to lower the actual total hashrate of the Products delivered but shall not request to increase the actual total hashrate to the level exceeding the total rated hashrate as set out in this Agreement. After Bitmain publishes new types of Products and if Bitmain has not suspended the production of the types of Products under this Agreement, Bitmain shall continue to delivery such agreed types of Products in accordance with this Agreement and the Purchaser shall not terminate this Agreement or refuse to accept the Products on the grounds that Bitmain has published new type(s) of Products.

 

2.Cargo insurance coverage limitations:

 

The cargo insurance coverage provided by Bitmain is subject to the following limitations and exceptions:

 

Exclusions:

 

-loss damage or expense attributable to willful misconduct of the Assured
-ordinary leakage, ordinary loss in weight or volume, or ordinary wear and tear of the subject-matter insured
-loss damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject-matter insured (for the purpose of this Clause, “packing” shall be deemed to include stowage in a container or liftvan but only when such stowage is carried out prior to attachment of this insurance or by the Assured or their servants)
-loss damage or expense caused by inherent vice or nature of the subject-matter insured
-loss damage or expense proximately caused by delay, even though the delay be caused by a risk insured against (except expenses payable)
-loss damage or expense arising from insolvency or financial default of the owners managers charterers or operators of the vessel
-loss, damage, or expense arising from the use of any weapon of war employing atomic or nuclear fission, and/or fusion or other like reaction or radioactive force or matter.

 

 23 
 

 

-Loss, damage or expense arising from unseaworthiness of vessel or craft, unfitness of vessel craft conveyance container or liftvan for the safe carriage of the subject- matter insured, where the Assured or their servants are privy to such unseaworthiness or unfitness, at the time the subject-matter insured is loaded therein.
-The Underwriters waive any breach of the implied warranties of seaworthiness of the ship and fitness of the ship to carry the subject-matter insured to destination, unless the Assured or their servants are privy to such unseaworthiness or unfitness.
-Loss, damage or expense caused by (1) war, civil war, revolution, rebellion, insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power, (2) capture, seizure, arrest, restraint or detainment (piracy excepted), and the consequences thereof or any attempt threat, (3) derelict mines, torpedoes, bombs, or other derelict weapons of war.
-Loss, damage, or expense caused by strikers, locked-out workmen, or persons taking part in labor disturbances, riots or civil commotion, resulting from strikes, lock-outs, labor disturbances, riots or civil commotions, caused by any terrorist or any person acting from a political motive.

 

3.Bitmain’s BANK ACCOUNT info:

Company Name: Bitmain Technologies Limited

 

Company address: FLAT/RM A1 11/F SUCCESS COMMERCIAL BUILDING 245- 251 HENNESSY ROAD HK

Account No.:

Bank name:

Bank address:

Swift Code:

ABA CODE:

 

4.The payment shall be arranged by the Purchaser as Appendix B.

 

5.At any time prior to the delivery, Bitmain is entitled to, by written notice, request the Purchaser to enter into a separate purchase agreement and Bitmain and the Purchaser, if so requested, shall cooperate with Bitmain to enter into such purchase agreement and shall pay the outstanding price for the Products in accordance with the terms and conditions of this Agreement, failing which Bitmain is entitled to request the Purchaser to continue to perform its obligations under this Agreement.

 

6.The Purchaser shall pay 25% of the Total Purchase Price as down payment to Bitmain within seven (7) days after the signing of this Agreement, with the remaining being settled in accordance with the payment schedule set forth in this Agreement.

 

 24 
 

 

7.Without prejudice to the above, the unit price and the Total Purchase Price of the Product(s) and any amount paid by the Purchaser shall be all denominated in USD. Where the Parties agree that the payments shall be made in cryptocurrencies, the exchange rate between the USD and the cryptocurrency selected shall be determined and calculated as follows: (1) in the event that the Purchaser pays for any order placed on Bitmain’s official website (the “Website”, http://www.bitmain.com) which is valid and has not been fully paid yet, the exchange rate between the USD and the cryptocurrency fixed in such placed Order shall apply, or (2) in any other case, the real time exchange rate between the USD and the cryptocurrency displayed on the Website upon payment shall apply. The exchange rate between the USD and the cryptocurrency shall be fixed according to this provision. In any circumstance, the Purchaser shall not ask for any refund due to the change of exchange rate.

 

 25 
 

 

APPENDIX B

 

 

 

Payment Percentage Payment Date

 

Note

Example (Assuming this Agreement is signed on April 12.)
At least 25%

seven (7) days after signing of this

Agreement

25%  of  the  Total Purchase Price 25% of the Total Purchase Price shall be paid by April 19 2021
At least 35% six (6) months prior to the shipment 35% per month of a single batch

35% of the price for August/September/October/

November batch shall be paid by May 30 2021;

35% of the price for December batch shall be paid by June 30 2021; etc.

The remaining 40% one (1) month prior to the shipment 40% per month of a single batch

40% of the price for August batch shall be paid by June 30 2021;

40% of the price for September batch shall be paid by July 30 2021; etc.

 

 26 
 

 

 

HARDWARE PURCHASE & SALES AGREEMENT

 

PARTIES

 

_________________ (hereinafter referred to as “_________”) a _____________ with its principal office located at _________________ And _____________________ (hereinafter referred to as “customer) with its principal office located at _____________.

TERM

The effective date of this agreement is _____________. This agreement applies to all hardware equipment sales made between the customer and _________ for one year after the date of the signed agreement. Agreement will auto-renew after one year’s time.

 

PURPOSE & GENERAL TERMS

 

This agreement shall govern any purchase of a Hardware Product by Customer, and any sale and/or delivery of a Hardware Product by __________. By purchasing hardware equipment, you acknowledge that you have read this document, understand it, agree to be legally bound by its terms and conditions.

 

If you are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to this sales agreement.

 

DEFINITIONS

 

Customer means a party who purchases or otherwise receives a Hardware Product from __________. This includes a broker acting on behalf of their client.

 

Hardware Equipment includes, but is not limited to, ASIC Miners, Power Supply Units (PSUs) Power Distribution Units (PDUs) and replacement fans for ASIC Miners

 

Defect means a situation where a Hardware does not perform, function or operate in accordance with the applicable terms of this Agreement and/or any material fault, failure, error or other defect in such Hardware.

 

New Equipment” means any equipment sold in the box and/or not previously used.

 

  
 

 

“Used Equipment” means any equipment that has been previously used, or opened even if in the original box.

 

 

PRICES & PAYMENTS

 

Invoices will reect pricing in USD, and unless otherwise indicated exclude any taxes and shipping costs
Payments are due at the time an order is placed or upon receipt of invoice. Invoice is good for 12 hours before price and/or availability is subject to change
A sale is not final until funds arrive in ___________’s bank account or BTC/USDC wallet (or another account designated by ___________). ___________ will provide confirmation after funds have been received in account, and at this point the sale is nal and refunds will not be made.
The customer shall pay for the invoiced amounts in advance in order to be able to receive the ordered hardware products. No items will be held without payment in full unless otherwise noted, and further, all goods must be paid for prior to shipment of the Goods to Buyer.
___________ reserves the right not to accept or to cancel or refund your order in our sole discretion for any reason without liability, including if the products are not available, are incorrectly priced or otherwise incorrectly described.
Any and all prices quoted by Seller to Buyer for the purchase of Goods do not include any manufacturer’s sales, use, excise or similar taxes, tariffs, charges or duties, and the amount of any thereof which Seller is required to pay or collect will be invoiced to Buyer, unless Buyer provides Seller with appropriate evidence that Buyer is exempt from the payment of such taxes, or unless otherwise noted.
Any chargebacks that occur after confirmation of receipt of payment will result in a canceled order. Any related fees as a result of the chargeback must be paid for by the buyer.

 

 

DELIVERY

 

___________ or its assignee shall deliver the hardware equipment to the delivery address specified by Customer. Delivery of the Goods by Seller to the Customer at provided shipping address shall constitute delivery to Customer.
Seller shall not be liable for any failure to deliver if the failure is caused by circumstances beyond the control of the Seller (including but not limited to inaccurate address provided, or missed delivery window).
Any delivery schedule quoted by Seller is its best estimate as of the date of quotation and is subject to change
Any shipping charges quoted by Seller are subject to change if information provided was inaccurate (e.g. availability of loading dock, type of address (residential vs. commercial), etc.)

 

 2 
 

 

ACCEPTANCE

 

Upon the arrival of the Goods at their destination, Buyer shall have the right to examine the Goods before accepting delivery. Such inspection shall be made immediately, and any damage or possible damage should be noted with the carrier before signing for the package. If no damage is noted upon arrival of the Goods at their destination, the Buyer shall be deemed to have accepted them.
By accepting delivered Goods, Buyer waives any claims or defenses based upon defects in the Goods that Buyer knew of, or reasonably could have discovered by carefully examining the Goods.
Buyer agrees that if it accepts the Goods tendered under this Agreement, such acceptance shall be deemed acknowledgment by Buyer that the goods satisfy all of Seller's obligations. Buyer may not revoke its acceptance for any reason whatsoever.

 

 

TITLE AND RISK OF LOSS

 

All products ordered remain the property of ___________ until full payment is tendered to ___________, and delivered to buyer as indicated below. In the event of a payment dispute, Customer is required to return the products that are the subject of dispute to ___________ immediately upon request, and to assume the risks (in particular the risks of loss, theft, and damage) relating to such products.

 

The transfer of ownership of the Hardware occurs once it has been delivered to the customer at the provided shipping address. ___________ shall bear the risk of loss or damage to a Hardware Product until it is delivered to the Customer. Thereafter, the Customer assumes the risk of loss or damage of the Hardware Product, including those that may have resulted from the transportation of the goods but weren’t noted with the carrier upon delivery, and the Customer shall bear all losses, damages, debts and liabilities that result.

 

 

WARRANTIES, LIMITATION OF LIABILITIES

 

___________ does not guarantee the following, and therefore is not responsible for expenses, loss or damages as a result of:

 

Manufacturer issues including but not limited to production delays, shipping delays, or faulty equipment/defective machinery
Broker/seller issues including but not limited to non-delivery, delays in shipping, damaged goods, etc. ___________ will refund the Customer in any case of non-delivery, and will handle damaged parts per the Warranty terms in the section below.
Shipping company issues, including but not limited to non-delivery, delays in shipping, damaged goods during shipping, etc. ___________ will refund the Customer in any case of Non-delivery, and will handle damaged parts per the Warranty terms in the section below.
Changes in ASIC market or Crypto industry that results in changes to hardware profitability or value

 

 3 
 

 

FOR NEW EQUIPMENT:

 

Warranty: ___________ will assign any remaining Manufacturer’s Warranty for the new equipment to the Customer. The manufacturer’s warranty (if any) is the only warranty that shall be provided by ___________ with respect to the hardware product. Any and all issues with new hardware equipment must be resolved directly with the manufacturer.

 

Other provisions: For new equipment, ___________ does not guarantee the total number of units or hashrate per unit, but rather only guarantees that total hashrate across all units ordered will be reached. Per the standard manufacturer policy, total hashrate of products delivered to client will not be less than total hashrate originally ordered, but the manufacturer and ___________ reserves the right to adjust total number of units as needed.

 

 

FOR USED EQUIPMENT:

 

___________ will over a 7 Day DOA Warranty unless otherwise noted on the sales invoice . Equipment should be tested within 7 calendar days of delivery. Any machines identified as DOA should be reported to ___________ within 7 calendar days. Proof of testing and photos/videos should be provided. ___________ will immediately ship a tested replacement within 7 business days. If this is not possible, a refund will be issued within the same 7 business day period. The cost of the original machine less any shipping costs will be covered. ___________ can choose to coordinate shipping/ provide labels to the customer, or the customer can choose to handle shipping back to the seller.

 

In any action under or related to this agreement, ___________ shall not be liable to customer for any of the following, even if informed of their possibility, whether arising in contract, tort (including negligence) or otherwise: 1) third-party claims for damages; 2) loss of, or damage to, data; 3) special, incidental, indirect, punitive or consequential damages; or 4) loss of profits, business, revenue, goodwill or anticipated savings. as some states or jurisdictions do not allow the exclusion or limitation of some damages, the above exclusion or limitation may not apply to this agreement. except for bodily injury (including death) and damage to real property or tangible personal property. In the event ___________ is determined to be liable to the customer, its liability shall be limited to the lesser of a); the amount of actual direct damages suffered by customer; or b) the amount the customer paid ___________ for the hardware product.

 

 

FORCE MAJEURE

 

___________ shall not be liable to Customer for any failure or delay in the performance of its obligations hereunder, to the extent such failure or delay is caused by fire, ood, earthquakes, other elements of nature; acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond the reasonable control of ___________.

 

 4 
 

 

NON-DISCLOSURE

 

The parties will maintain complete confidentiality regarding each other business sources and/or their Affiliates and will disclose such business sources only to named parties pursuant to the express written permission of this party who made available the source; and,

 

That they will not disclose names, addresses, email addresses, telephone and fax or telex numbers to any contacts by either party to third parties and that they each recognize such contracts as the exclusive property of the respective parties and that they will not enter into any direct negotiations or transactions with such contracts revealed by the other party and,

 

 

DISPUTES

 

All disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect.

 

There shall be one arbitrator, such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Springfield, Massachusetts

 

The arbitrator shall apply the laws of the Commonwealth of Massachusetts to all issues in dispute. The findings of the arbitrator shall be nal and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement.

 

 

ENTIRE AGREEMENT

 

This Agreement constitutes the entire agreement and understanding between Customer and ___________ concerning the purchase, sale, and/or delivery of any Hardware Product.

 

This Agreement supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Customer and ___________ (including, but not limited to, any prior versions of this Agreement).

 

If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions shall remain in full force to the extent permitted by law.

 

 5 
 

 

TERMINATION

 

This Agreement may be terminated by either Buyer or Seller within thirty (30) days’ written notice. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, postage prepaid, addressed to the parties as follows:

 

 

  SELLER:   BUYER:  
         
         
         
         

 

 6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FUTURES SALES AND PURCHASE AGREEMENT

BETWEEN

_________________

(“_______”)

 

AND

 

CleanSpark, Inc.

(“Purchaser”)

 

 

 

 

 

 

 

 

 1 
 

 

 

1Definitions and Interpretations 3
2Sales of Product(s) 5
3Prices and Terms of Payment 6
4Shipping of Product(s) 8
5Warranty 9
6Representations and Warranties 10
7Indemnification and Limitation of Liability 12
8Distribution 13
9Intellectual Property Rights 14
10Confidentiality and Communications 14
11Term and Termination of this Agreement 15
12Contact Information 15
13Compliance with Laws and Regulations 16
14Force Majeure 16
15Entire Agreement and Amendment 17
16Assignment 17
17Severability 17
18Personal Data 17
19Governing Law and Dispute Resolution 18
20Waiver 18
21Counterparts and Electronic Signatures 18
22Further Assurance 18
23Third Party Rights 19
24Liquidated Damages Not Penalty 19

 

 2 
 

This futures sale and purchase agreement (this “Agreement”) is made on ________, by and between _____________, a ______________ (“________”), with its registered office at ________________________________, and Cleanspark Inc., a Nevada corporation (the “Purchaser”), with its principal place of business at 1885 S. 1800 W., Suite 3, Woods Cross, UT 84087. 

 

___________ and the Purchaser shall hereinafter collectively be referred to as the “Parties”, and individually as a “Party”.

 

Whereas:

 

1.Purchaser fully understands the market risks, the price-setting principles and the market fluctuations relating to the Products sold under this Agreement.
2.___________ purchases the Products from Bitmain, a supplier of cryptocurrency mining hardware and other equipment, either directly or through a reseller, as the case may be.
3.The Purchaser is willing to purchase and ___________ is willing to supply cryptocurrency mining hardware and other equipment in accordance with the terms and conditions of this Agreement.

 

The Parties hereto agree as follows:

 

1.Definitions and Interpretations

The following terms, as used herein, have the following meanings:

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person; “Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity (whether or not having separate legal personality); and “Control” means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.

 

“Applicable Law” means any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal force under any system of law, including, without limitation, local law, law of any other state or part thereof or international law, and which creates or purports to create any requirement or rule that may

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affect, restrict, prohibit or expressly allow the terms of this Agreement or any activity contemplated or carried out under this Agreement.

 

“Bank Account” means the bank account information that ___________ specifies in its invoices.

 

“Bitmain” means Bitmain Technologies Limited (Company number: 2024301), with its registered office at Unit A1 of Unit A, 11th Floor, Success Commercial Building, 245-251 Hennessy Road, Hong Kong.

 

“Force Majeure” means in respect of either Party, any event or occurrence beyond the reasonable control of that Party, which delays, prevents or hinders that Party from performing any obligation imposed upon that Party under this Agreement, and which is unavoidable notwithstanding the reasonable care of the Party affected, including to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist activities, acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions, quarantine restrictions, epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions and regulatory and administrative or similar action or delays to take actions of any governmental authority.

 

“Insolvency Event” in the context of the Purchaser means any of the following events:

i)a receiver, receiver and manager, judicial manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over all or any part of the assets, equipment or undertaking of the Purchaser;
ii)if the Purchaser stops or suspends payments to its creditors generally, is unable to or admits its inability to pay its debts as they fall due, seeks to enter into any composition or other arrangement with its creditors, is declared or becomes bankrupt or insolvent or enters into liquidation;
iii)a petition is presented, a proceeding is commenced, an order is made or an effective resolution is passed or any other steps are taken by any person for the liquidation, winding up, insolvency, judicial management, administration, reorganisation, reconstruction, dissolution or bankruptcy of the Purchaser, otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction; or
iv)if any event, process or circumstance analogous or having a substantially similar effect to any of the above, in any applicable jurisdiction, commences or exists.

 

“Intellectual Property Rights” means any and all intellectual property rights, including but not limited to those concerning inventions, patents, utility models, registered designs and models, engineering or production materials, drawings, trademarks, service marks,

domain names, applications for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or business sensitive information and/or technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.

 

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“Product(s)” means the merchandise that ___________ will provide to the Purchaser in accordance with this Agreement.

 

“Total Purchase Price” means the aggregate amount payable by the Purchaser as set out in Appendix A of this Agreement.

 

“Warranty Period” means the period of time that the Product(s) are covered by the warranty guaranteed by Bitmain in accordance with its relevant service policy.

 

“Warranty Start Date” means the date on which the Warranty Period begins with respect to the Product(s).

 

Interpretations:

i)Words importing the singular include the plural and vice versa where the context so requires.
ii)The headings in this Agreement are for convenience only and shall not be taken into consideration in the interpretation or construction of this Agreement.
iii)References to Clauses and Appendix(es) are references to Clauses and Appendix(es) of this Agreement.
iv)Unless specifically stated otherwise, all references to days shall mean calendar days.
v)Any reference to a code, law, statute, statutory provision, statutory instrument, order, regulation or other instrument of similar effect shall include any

re-enactment or amendment thereof for the time being in force.

vi)The word “including” shall be deemed to be followed by the words “without limitation”.

 

2.Sales of Product(s)

___________ will provide the Product(s) set forth in Appendix A (attached hereto as part of this Agreement) to the Purchaser in accordance with provisions of Clause 2, Clause 3, Clause 4 and Appendix A of this Agreement, and the Purchaser shall make payment in accordance with the terms specified in this Agreement.

 

2.1.Both Parties agree that the Product(s) shall be sold in accordance with the following steps:
(i)The Purchaser shall make payments to ___________ in accordance with Appendix B of this Agreement.
(ii)Upon receipt of each payment from the Purchaser, ___________ will provide a payment receipt to the Purchaser.
 (iii) ___________ will send a shipping confirmation to the Purchaser after it has delivered the Product(s) to the carrier.

             

 

2.2.If Bitmain or its reseller postpones, modifies or cancels the shipping schedule of any batch of Products, ___________ may similarly postpone, modify or cancel the shipping schedule of any such batch of Products to the Purchaser without the Purchaser’s prior consent. For the avoidance of doubt, to the extent Bitmain or its reseller cancels any batch of Product(s) or portion thereof, ___________ shall refund in full any payments with respect to such batch or portion, free of any interest. Both parties acknowledge and agree that in case of product unavailability, Bitmain shall have the right to cancel the order and ___________ may similarly cancel the order without any penalty or liability.

 

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2.3.For the avoidance of doubt, the Purchaser is entitled to resell the Products to the Purchaser’s customers, including as packaged or bundled with other products.

 

2.4The Purchaser acknowledges and confirms that the Order is irrevocable and cannot be cancelled by the Purchaser, and that the Product(s) ordered are neither returnable nor refundable. All sums paid by the Purchaser to ___________ shall not be subject to any abatement, set-off, claim, counterclaim, adjustment, reduction, or defense for any reason. Down payment and payment of Total Purchase Price are not refundable, save as otherwise mutually agreed by the Parties.

 

3.Prices and Terms of Payment
3.1The Total Purchase Price (inclusive of any tax payable) shall be paid in accordance with the payment schedule set forth in Appendix B of this Agreement.

 

3.2The payment date shall be the date as evidenced in the remittance copy of such payment. Interest shall not be charged when the respective amounts have been received by ___________ in full according to the agreed payment schedule. Different clients may have different payment schedules. No interest shall be charged on the remaining amount.

 

3.3In the event that the Purchaser fails to fully settle the respective percentage of the Total Purchase Price with respect to any batch of Products before the applicable prescribed deadline in accordance with Appendix B of this Agreement and fails to make a written request to ___________ no less than 5 business days prior to such prescribed deadline and obtain ___________’s written consent, ___________ shall be entitled to terminate this Agreement with respect to such batch of Products, or resell such batch of Products to other customers, and in each case, in addition to the Purchaser’s indemnity obligations under Clause 7, the Purchaser shall be liable for (i) interest at a rate of 1% per annum with respect to the purchase price of such batch of Product(s), accruing for the period from the next day of the applicable prescribed deadline as specified in Appendix B for that batch of Product(s) to the earlier of (x) the date of actual and full payment for that batch of Product(s) or (y) ___________ terminates this Agreement with respect to such batch of Products or resells such batch of Products to other customers, and (ii) a reasonable liquidated damage (not a penalty) of 20% of the purchase price of such batch of Products (“___________ Liquidated Damages”). If there are any remaining balance after deducting the liquidated damage, such remaining balance shall be refunded to the Purchaser, free of any interest. If the Purchaser fails to pay the down payment on a timely basis and Bitmain has arranged production or procurement, ___________ shall be entitled to request the Purchaser to be responsible for the loss related to such production or procurement. Notwithstanding the foregoing, ___________ shall use best efforts to mitigate its damages (which, for avoidance of doubt, may result in ___________ not being entitled to all or any portion of the ___________ Liquidated Damages or any indemnity or other payment from the Purchaser, as a result of ___________ having limited or no losses). For the avoidance of doubt, termination or modification of this Agreement with respect to any particular batch of Product(s) shall not, in any way, vary, limit or extend the Parties’ rights and obligations in respect of other batches under this Agreement.

 

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3.4If ___________ breaches the terms of this Agreement solely and directly as a result of events or occurrences beyond the reasonable control of ___________ (including breach by ___________’s supplier of its agreement with ___________), then the Purchaser shall not be entitled to any Purchaser Liquidated Damages or other indemnity or other payments from ___________, provided that the Purchaser shall be entitled to a refund of its advance payments.

 

3.5The Parties understand and agree that the applicable prices of the Product(s) are inclusive of applicable bank transaction, import/export duties, taxes and fees and insurance, but are exclusive of any and all logistics costs, applicable taxes and governmental charges. The Purchaser shall pay or reimburse ___________ for all taxes levied on or assessed against the amounts payable hereunder upon receipt of documentation thereof. If any payment is subject to tax withholding, the Purchaser shall pay such additional amounts as necessary, to ensure that ___________ receives the full amount it would have received had payment not been subject to such tax withholding.

 

4.Shipping of Product(s)
4.1.___________ shall deliver the Products in accordance with the shipping schedule set forth in Appendix A to the place of delivery designated by the Purchaser. For the avoidance of doubt, the Products shall be fully insured such that it could adequately cover any losses of Product(s), personal injury, property damage, other damage or liability caused by the Product(s) or the transportation of the Product(s) either to the Purchaser or any third party, or theft of the Product(s) during transportation to the Purchaser. If the Purchaser seeks to make claims against the applicable insurer with respect to the delivery of the Products, ___________ shall make such claims against such insurer and reasonably cooperate with the Purchaser in connection therewith, including at the Purchaser’s request granting the Purchaser a right of subrogation against such insurer.

 

4.2.Subject to the limitations stated in Appendix A, the terms of delivery of the Product(s) shall be DDP USA (Delivery Duty Paid to the USA according to Incoterms 2010) to the place of delivery designated by the Purchaser. Once the Product(s) have been delivered to such place of delivery designated by the Purchaser, ___________ shall have fulfilled its obligation to supply the Product(s) to the Purchaser, and the title and risk of loss or damage to the Product(s) shall pass to the Purchaser.

 

4.3.There are 12 batches of Products under this Agreement and each batch shall constitute independent legal obligations of and shall be performed separately by the Parties. The delay of a particular batch shall not constitute waiver of the payment obligation of the Purchaser in respect of other batches. The delay of payment with respect to a particular batch shall not constitute waiver of the delivery obligation of ___________ in respect of other batches. Neither Party shall be entitled to terminate this Agreement solely on the ground of delay of delivery of or payment with respect to a single batch of Products.

 

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4.4.Logistics costs shall be borne by the Purchaser, which must be paid to ___________ before ___________ arranges for shipping of the Products.

 

5.Warranty
5.1.The Warranty Period shall start on the Warranty Start Date and end on the 365th day after the Warranty Start Date. During the Warranty Period, the Purchaser’s sole and exclusive remedy with respect to the defective Product(s) will be to have Bitmain repair or replace (subject to Bitmain’s option) the defective part/component of the Product(s) or the defective Product(s) at no charge to the Purchaser.

 

5.2.The Parties acknowledge and agree that the warranty provided by Bitmain as stated in the preceding paragraph does not apply to the following:
(i)normal wear and tear;
(ii)damage resulting from accident, abuse, misuse, neglect, improper handling or improper installation;
(iii)damage or loss of the Product(s) caused by undue physical or electrical stress, including but not limited to moisture, corrosive environments, high voltage surges, extreme temperatures, shipping, or abnormal working conditions;
(iv)damage or loss of the Product(s) caused by acts of nature including, but not limited to, floods, storms, fires, and earthquakes;
(v)damage caused by operator error, or non-compliance with instructions as set out in accompanying documentation;
(vi)alterations by persons other than Bitmain or ___________, associated partners or authorized service facilities;
(vii)Product(s), on which the original software has been replaced or modified by persons other than Bitmain or ___________, associated partners or authorized service facilities;
(viii)counterfeit products;
(ix)damage or loss of data due to interoperability with current and/or future versions of operating system, software and/or hardware;
(x)damage or loss of data caused by improper usage and behavior which is not recommended and/or permitted in the product documentation;
(xi)failure of the Product(s) caused by usage of products not supplied by Bitmain or ___________; and
(xii)hash boards or chips are burnt.

 

In case the warranty is voided, the Purchaser may request Bitmain to provide it repair services, and the Purchaser shall bear all related expenses and costs.

 

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5.3.Notwithstanding anything to the contrary herein, the Purchaser acknowledges and agrees that the Product(s) provided by ___________ do not guarantee any cryptocurrency mining time and, ___________ shall not be liable for any cryptocurrency mining time loss or cryptocurrency mining revenue loss that are caused by downtime of any part/component of the Product(s). ___________ does not warrant that the Product(s) will meet the Purchaser’s requirements or the Product(s) will be uninterrupted or error free. Except as provided in Clause 6 of this Agreement, ___________makes no warranties to the Purchaser with respect to the Product(s), and no warranties of any kind, whether written, oral, express, implied or statutory, including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing or usage in trade shall apply.

 

5.4.In the event of any ambiguity or discrepancy between this Clause 5 of this Agreement and Bitmain’s After-sales Service Policy from time to time, it is intended that the After-sales Service Policy shall prevail and the Parties shall comply with and give effect to the After-sales Service Policy.

 

6.Representations and Warranties

6A. ___________makes the following representations and warranties to the Purchaser:

 

6.1.This Agreement is the legal, valid, binding obligations of ___________, enforceable against it in accordance with its terms;
6.2.It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement;

 

6.3.All corporate action on its part and on the part of each of its officers and directors necessary for the authorization, execution and delivery of this Agreement and the performance of its obligations hereunder has been taken;

 

 

6.4.All authorizations required or desirable:
(i)to enable it lawfully to enter into, exercise its rights under and comply with its obligations under this Agreement;
(ii)to ensure that those obligations are legal, valid, binding and enforceable; and
(iii)

to make this Agreement admissible in evidence in its jurisdiction of incorporation,

have been or will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.

 

6.5.It is not aware of any circumstances which will likely lead to:
(i)any authorization obtained or effected not remaining in full force and effect;
(ii)any authorization not being obtained, renewed or effected when required or desirable; or

 

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(iii)any authorization being subject to a condition or requirement which it does not reasonably expect to satisfy or the compliance with which has or would have a material adverse effect.

 

6.6.Neither the execution and delivery of this Agreement nor the performance of the obligations contemplated hereby will:
(i)conflict with or result in any violation of or constitute a breach of any of the terms or provisions of or result in the acceleration of any obligation under, or constitute a default under any provision of any material contract or any other obligation to which ___________ is a party or under which ___________ is subject or bound,
(ii)violate any judgment, order, injunction, decree or award of any governmental authority, against, or affecting or binding upon, ___________ or upon the assets, property or business of ___________, or
(iii)constitute a violation by ___________ of any Applicable Law of any jurisdiction as such law relates to ___________ or to the property or business of ___________.

 

6.7.(a) It is not the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or Singapore (“Sanctions”), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs or other Persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the target of Sanctions, and (b) the sale of the Product(s) will not violate any Sanctions or import and export control related laws and regulations.

6B. The Purchaser makes the following representations and warranties to ___________:

 

6.8.This Agreement is the legal, valid, binding obligations of the Purchaser, enforceable against it in accordance with its terms;
6.9.It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement.
6.10.The entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with:
(i)any Applicable Law;
(ii)its constitutional documents; or
(iii)any agreement or instrument binding upon it or any of its assets.

 

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6.11.All authorizations required or desirable:
(iv)to enable it lawfully to enter into, exercise its rights under and comply with its obligations under this Agreement;
(v)to ensure that those obligations are legal, valid, binding and enforceable; and
(vi)to make this Agreement admissible in evidence in its jurisdiction of incorporation,

have been or will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.

 

6.12.At the date of this Agreement, it is not aware of any circumstances which will lead to:
(i)any authorization obtained or effected not remaining in full force and effect;
(ii)any authorization not being obtained, renewed or effected when required or desirable; or
(iii)any authorization being subject to a condition or requirement which it does not expect to satisfy or the compliance with which has or would have a material adverse effect.

 

6.13.It is not the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or Singapore (“Sanctions”), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs or other Persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the target of Sanctions, and (b) the purchase of the Product(s) will not violate any Sanctions or import and export control related laws and regulations.

 

7.Indemnification and Limitation of Liability
7.1.Each Party shall, during the term of this Agreement and at any time thereafter, indemnify and save the other Party and/or its Affiliates harmless from and against any and all damages, suits, claims, judgments, liabilities, losses, fees, costs or expenses of any kind, including reasonable legal fees, whatsoever arising out of or incidental to (a) the Products pursuant to this Agreement, (b) a breach of this Agreement or (c) such first Party’s willful misconduct or gross negligence.

 

7.2.Notwithstanding anything to the contrary herein, each Party and its Affiliates shall under no circumstances, be liable to the other Party and its Affiliates for any consequential loss, or loss of goodwill, business, anticipated profits, revenue, contract, or business opportunity arising out of or in connection with this Agreement, and each Party hereby waives any claim it may at any time have against the other Party and its Affiliates in respect of any such damages. The foregoing limitation of liability shall apply whether in an action at law, including but not limited to contract, strict liability, negligence, willful misconduct or other tortious action, or an action in equity.

 

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7.3.(a) ___________ and its Affiliates’ cumulative aggregate liability pursuant to this Agreement, whether arising from tort, breach of contract or any other cause of action, shall be limited to and not exceed the amount of one hundred percent (100%) of the payment actually made by the Purchaser to ___________ under this Agreement (the “Indemnity Cap”); and (b) the Purchaser and its Affiliates’ cumulative aggregate liability pursuant to this Agreement, whether arising from tort, breach of contract or any other cause of action, shall be limited to and not exceed the amount of one hundred percent (100%) of the Indemnity Cap.

 

7.4.The Product(s) are not designed, manufactured or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation, such as the operation of nuclear facilities, aircraft navigation or communication systems or in any other applications or activities in which failure of the Product(s) may pose the risk of environmental harm or physical injury or death to humans. ___________ specifically disclaims any express or implied warranty of fitness for any of the above described application and any such use shall be at the Purchaser’s sole risk.

 

7.5.The above limitations and exclusions shall apply (1) notwithstanding failure of essential purpose of any exclusive or limited remedy; and (2) whether or not the indemnifying Party has been advised of the possibility of such damages. This Clause allocates the risks under this Agreement and the pricing herein reflects this allocation of risk and the above limitations.

 

8.Distribution
8.1.This Agreement does not constitute a distributor agreement between ___________ and the Purchaser.

 

 

9.Intellectual Property Rights
9.1.The Parties agree that the Intellectual Property Rights in any way contained in the Product(s), made, conceived or developed by Bitmain and/or its Affiliates for the Product(s) under this Agreement and/or, achieved, derived from, related to, connected with the provision of the Product(s) by Bitmain and/or acquired by Bitmain from any other person in performance of this Agreement shall be the exclusive property of Bitmain and/or its Affiliates.

 

9.2.Notwithstanding anything to the contrary herein, all Intellectual Property Rights in the Product(s) shall remain the exclusive property of Bitmain and/or its licensors. Except for licenses explicitly identified in Bitmain’s shipping confirmation or in this Clause 9.2, no rights or licenses are expressly granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of Bitmain and/or its Affiliates or any Intellectual Property residing in the Product(s) provided to the Purchaser, including in any documentation or any data furnished by Bitmain. ___________ grants a non-exclusive, royalty-free and irrevocable sublicense of Bitmain and/or its Affiliates’ Intellectual Property Rights to solely use the Product(s) for their ordinary function, and subject to the Clauses set forth herein. The Purchaser shall in no event knowingly violate the Intellectual Property Rights of Bitmain and/or its licensors.

 

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10.Confidentiality and Communications
10.1.All information concerning this Agreement and matters pertaining to or derived from the provision of Product(s) pursuant to this Agreement between the Parties, whether in oral or written form, or in the form of drawings, computer programs or other, as well as all data derived therefrom (“Confidential Information”), shall be deemed to be confidential and, as such, may not be divulged to any unauthorized person. The Purchaser undertakes and agrees to take all reasonable and practicable steps to ensure and protect the confidentiality of the Confidential Information which cannot be passed, sold, traded, published or disclosed to any unauthorized person. For the avoidance of doubt, nothing shall restrict the Purchaser from disclosing any information relating to the Product(s) if required by Applicable Law, regulation, stock exchange requirement, judicial or government order, discovery request or similar process.

 

11.Term of this Agreement
11.1.This Agreement will be effective upon signing of this contract by both Parties, provided that if there is more than one shipping confirmation, this Agreement will be effective to the Products contained in each shipping confirmation upon ___________’s issuance of the respective shipping confirmation to the Purchaser.
11.2.This Agreement shall remain effective up to and until one (1) month after the delivery and acceptance of the last batch of Products; provided that to the extent any claim (insurance, indemnity or otherwise) is made with respect to any Product(s), this Agreement shall survive with respect to such Product(s) until final resolution of such claim.

 

11.3.This Agreement may be terminated by either Party (the “Non-Breaching Party”) by delivery of written notice to the other Party, if the other Party has breached its obligations under this Agreement and failed to remedy such breach within thirty (30) days following receipt of written notice thereof from the Non-Breaching Party. Upon termination of this Agreement, Clause 3.3 shall apply (in the case that ___________ is the Non-Breaching Party) or Clause 3.4 shall apply (in the case that the Purchaser is the Non-Breaching Party) mutatis mutandis.

 

12.Contact Information

All communications in relation to this Agreement shall be made to the following contact(s):

 

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___________ ’s business contact:

Name: ________________

Phone: ________________

Email: _______________

 

Purchaser’s business contact:

 

Name: Zach Bradford, CEO

 

Phone: ________________

 

Email: _________________

 

 

13.Compliance with Laws and Regulations
13.1.The Purchaser acknowledges and agrees that the Product(s) in this Agreement are subject to export control laws and regulations, including but not limited to the Export Administration Regulations (“EAR”) of the United States. Without limiting the foregoing, the Purchaser shall not knowingly export, re-export, or transfer, directly or indirectly, any Product(s) subject to this Agreement without receiving the proper licenses or license exceptions from all applicable governmental authorities, including but not limited to the U.S. Department of Commerce Bureau of Industry and Security. With respect to any export transactions under this Agreement, the Purchaser and ___________ will reasonably cooperate to promote compliance with all applicable export laws and regulations. ___________ agrees to provide the Purchaser with accurate and complete information regarding the Products that is reasonably necessary for Purchaser to comply with applicable export laws, including all applicable Export Control Classification Numbers (ECCNs), information regarding eligibility of the Products for license exceptions, and any other information reasonably requested by Purchaser from time to time for the purposes of export. ___________ further agrees to promptly inform Purchaser of any changes to such information, including as a result of changes to the applicable export laws or regulations.
13.2.The Purchaser undertakes that it will not take any action under this Agreement or use the Product(s) in a way that will be a breach of any applicable anti-money laundering laws, anti-corruption laws, and/or counter-terrorist financing laws.

 

14.Force Majeure

To the extent that a Party is fully or partially delayed, prevented or hindered by an event of Force Majeure from performing any obligation under this Agreement (other than an obligation to make payment), subject to the exercise of reasonable diligence by the affected Party, the failure to perform shall be excused by the occurrence of such event of Force Majeure. A Party claiming that its performance is excused by an event of Force Majeure shall, promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature, date of inception and expected duration of such event of Force Majeure and the extent to which the Party expects that the event will delay, prevent or hinder the Party from performing its obligations under this Agreement. The notifying Party shall thereafter use its best effort to eliminate such event of Force Majeure and mitigate its effects.

 

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14.1.The affected Party shall use reasonable diligence to remove the event of Force Majeure, and shall keep the other Party informed of all significant developments.
14.2.Except in the case of an event of Force Majeure or as otherwise provided in this Agreement, neither party may terminate this Agreement prior to its expiry date.

 

 

15.Entire Agreement and Amendment

This Agreement constitutes the entire agreement of the Parties hereto and can only be amended with the written consent of both Parties or otherwise as mutually agreed by both Parties.

 

16.Assignment

Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other Party. This Agreement shall be binding upon and enure to the benefit of each Party to this Agreement and its successors in title and permitted assigns.

 

17.Severability

To the extent possible, if any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part by a court, the provision shall apply with whatever deletion or modification is necessary so that such provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. The remaining provisions of this Agreement shall not be affected and shall remain in full force and effect.

 

18.Personal Data
18.1.Depending on the nature of the Purchaser’s interaction with ___________, some examples of personal data which ___________ may collect from the Purchaser include the Purchaser’s name and identification information, contact information such as the Purchaser’s address, email address and telephone number, nationality, gender, date of birth, and financial information such as bank account information.
18.2.___________ generally does not collect the Purchaser’s personal data unless (a) it is provided to ___________ voluntarily by the Purchaser directly or via a third party who has been duly authorized by the Purchaser to disclose the Purchaser’s personal data to ___________ (the Purchaser’s “authorized representative”) after (i) the Purchaser (or the Purchaser’s authorized representative) has been notified of the purposes for which the data is collected, and (ii) the Purchaser (or the Purchaser’s authorized representative) has provided written consent to the collection and usage of the Purchaser’s personal data for those purposes, or (b) collection and use of personal data without consent is permitted or required by related laws. ___________ shall seek the Purchaser’s consent before collecting any additional personal data and before using the Purchaser’s personal data for a purpose which has not been notified to the Purchaser (except where permitted or authorized by law).

 

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19.Governing Law and Dispute Resolution
19.1.This Agreement shall be solely governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of laws principles.
19.2.Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration to be administered by JAMS pursuant to its Comprehensive Arbitration Rules (the “Comprehensive Rules”), and in accordance with the Expedited Procedures in those Rules, except to the extent modified by the provisions of this Section 19.2; provided, however, that any party may seek provisional or ancillary remedies, such as preliminary injunctive relief, from a court having jurisdiction, before, during or after the pendency of any arbitration proceeding. The arbitration shall be before a three-arbitrator panel unless the parties agree to a single arbitrator. Within 15 days after the commencement of arbitration, each party shall select one person to act as arbitrator, and the two so selected shall select a third arbitrator within 30 days of the commencement of the arbitration. If a party does not select an arbitrator within the allotted time, or if the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the arbitrator shall be designated by JAMS. All arbitrators shall serve as neutral, independent and impartial arbitrators. All such arbitrations shall be held in the Commonwealth of Massachusetts or such other location as the parties may mutually agree, and the arbitrator(s) shall apply the law of the Commonwealth of Massachusetts to the dispute exclusive of conflict or choice of law rules.

 

20.Waiver

Failure by either Party to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving Party to thereafter enforce each and every such provision or option.

 

21.Counterparts and Electronic Signatures

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.

 

 16 
 

 

22.Further Assurance

Each Party undertakes to the other Party to execute or procure to be executed all such documents and to do or procure to be done all such other acts and things as may be reasonable and necessary to give all Parties the full benefit of this Agreement.

 

23.Third Party Rights

A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce or to enjoy the benefit of any term of this Agreement.

 

24.Liquidated Damages Not Penalty

It is expressly agreed that any liquidated damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith for such specific liquidated damages and having agreed that the amount of such liquidated damages is reasonable in light of the anticipated harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or nonfeasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of such liquidated damages.

 

(The rest part of the page is intentionally left in blank)

 

 

 17 
 

 

 

Each Party represents and warrants that its signatory whose signature appears below has been and is on the date of this Agreement duly authorized by all necessary corporate or other appropriate action to execute this Agreement.

 

 

Signed for and on behalf of ___________

 

_________________________________

 

    Signature _____________  
    Name _______________  
    Title _________________  
       

 

 

Signed for and on behalf of the Purchaser

 

CleanSpark, Inc. 

       
    Signature _____________  
    Name _______________  
    Title _________________  

 

 

 18 
 

 

 

APPENDIX A

 

1.Products:

 

1.1.The information (including but not limited to the quantity, rated hashrate, unit price (“Unit Price”), total price for one item (“Total Price (One Item)”), total price for all the items (“Total Purchase Price”) of Products to be purchased by the Purchaser from ___________ is as follows (“Products”):

 

1.1.1Product Type

 

 

Type

 

Details

 

Product Name

 

 

Rated hashrate / unit

 

 

 

Rated power / unit

 

 

J/T@25 environment temperature

 

 

 

 

 

 

Description

 

 

 

 

 

 

 

 

 

 

 

 19 
 

 

 

1.1.2Price, quantity and delivery:

 

 

 

Batch

 

 

Product Name

 

 

Shipping Schedule

 

 

Reference Quantity

 

Total Rated Hashrate (T)

 

 

1

 

 

 

 

 

 

 

 

 

 

 

2

 

 

 

 

 

 

 

 

 

 

3

 

 

 

 

 

 

 

 

 

 

4

 

 

 

 

 

 

 

 

 

 

5

 

 

 

 

 

 

 

 

 

 

6

 

 

 

 

 

 

 

 

 

 

7

 

 

 

 

 

 

 

 

 

8

 

 

 

 

 

 

 

 

 

 

 

 

 

 20 
 

 

 

         

 

 

9

 

 

 

 

 

 

 

 

 

 

10

 

 

 

 

 

 

 

 

 

 

11

 

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

1.1.3Total price of the Products listed above: US$___________ Total Purchase Price: US $___________

 

1.1.4___________ shall arrange for shipping of the Product(s) to the place of delivery designated by the Purchaser within seven (7) business days of receipt of Product(s) from its supplier.

 

 

1.2.Both Parties confirm and agree that, if and to the extent that ___________’s supplier does not provide Product(s) with sufficient hashrate to ___________, ___________ may adjust the total quantity based on the total hashrate provided that the total hashrate of the Product(s) actually delivered to the Purchaser shall not be less than the total rated hashrate agreed in Article 1.1 of this Appendix A. ___________ makes no representation that the quantity of the actually delivered Products shall be the same as the quantity set forth in Article 1.1. of this Appendix A.

 

 21 
 

 

1.3.In the event that Bitmain publishes any new type of products with less J/T value and suspends the production of the type of the Products as agreed in this Agreement, ___________ shall be entitled to release itself from any future obligation to deliver any subsequent Products by 10-day prior notice to the Purchaser and continue to deliver new types of Products, the total rated hashrate of which shall be no less than such subsequent Products cancelled under this Agreement and the price of which shall be adjusted pro rata in accordance with the J/T value. In the event that the Purchaser explicitly refuses to accept new types of Products, the Purchaser is entitled to request for, and ___________ shall pay the Purchaser, within ten (10) business days of such request, a refund of the remaining balance of the purchase price already paid by the Purchaser together with an interest at 0.0333% per day on such balance for the period from the next day following the payment date of such balance to the date immediately prior to the date of refund. If the Purchaser accepts the new types of Products delivered by Bitmain, ___________shall be obliged to deliver such new types of Products to fulfill its obligations under this Agreement. The Purchaser may request to lower the actual total hashrate of the Products delivered but shall not request to increase the actual total hashrate to the level exceeding the total rated hashrate as set out in this Agreement. After Bitmain publishes new types of Products and if Bitmain has not suspended the production of the types of Products under this Agreement, ___________ shall continue to delivery such agreed types of Products in accordance with this Agreement and the Purchaser shall not terminate this Agreement or refuse to accept the Products on the grounds that Bitmain has published new type(s) of Products.

 

2.The payment shall be arranged by the Purchaser as set forth in Appendix B.

 

3.Without prejudice to the above, the unit price and the Total Purchase Price of the Product(s) and any amount paid by the Purchaser shall be all denominated in USD. Where the Parties agree that the payments shall be made in cryptocurrencies, the exchange rate between the USD and the cryptocurrency selected shall be determined and calculated as follows: The real time exchange rate between the USD and the cryptocurrency displayed on the Bitmain’s website upon payment shall apply. The exchange rate between the USD and the cryptocurrency shall be fixed according to this provision. In any circumstance, the Purchaser shall not ask for any refund due to the change of exchange rate.

 

 22 
 

 

APPENDIX B

 

 

Payments

 

Due Date

 

Amount (USD)

 

Concept

  $  
  $  
  $

 

 

  $

 

 

  $

 

 

  $

 

 

  $  
  $

 

 

  $  
  $  
  $  
  $  
  $  
  $

 

 

  $

 

 

  $

 

 

  $

 

 

  $

 

 

 

 23 
 

 

AGREEMENT FOR SALE OF EQUIPMENT

This Agreement for the Sale of Equipment (“Agreement”) is entered into on _________ (the “Effective Date”), by and between _____________, a __________________, with its principal place of business at _________________________ (the “Seller”), and CleanSpark Inc., a Nevada corporation, with its principal place of business at 8475 S Eastern Ave Ste 200 Las Vegas, NV 89123 USA (the “Buyer”). In consideration of the mutual promises and conditions expressed herein, and other good and valuable consideration, Seller and Buyer agree as follows:

1.       Description and Quantity of Equipment. Seller shall transfer and deliver to Buyer, and Buyer shall accept and pay for the equipment set forth in Exhibit A attached hereto and made part hereof (the “Goods”).

2.       Delivery; Risk of Loss. Seller shall deliver the Goods to Buyer at the delivery destination address via air freight (delivery is being covered by the seller’s insurance), specified in Exhibit A. Seller shall use commercially reasonable efforts to deliver the Goods on the estimated delivery date set forth in Exhibit A, or within a reasonable time thereafter. Seller shall not be held liable to Buyer or any other party for any failure or delay in the delivery of any Goods. Buyer shall pay Seller the reasonable cost of packaging the Goods. Shipment of Goods under this Agreement shall be F.O.B. Byer’s destination.

3.       Price; Payment. Buyer shall pay Seller the price for the Goods as listed on Exhibit A. Except as otherwise set forth on Exhibit A, payment shall be made in full at the time of delivery, in cash or by certified check. The price for the Goods covered by this Agreement excludes all transportation costs, freight, insurance, and special handling and packaging, or any required federal, state or local sales or other taxes (except for taxes based on Seller’s net income), duties, export or custom charges, VAT charges, brokerage or other fees, for which Buyer shall be fully responsible.

4.       Disclaimer of Express and Implied Warranties. Seller warrants that the Goods are as described in this Agreement, but no other express warranty is made with respect to the Goods. If any model or sample was shown to Buyer, that model or sample was used merely to illustrate the general type and quality of the Goods and not to represent that the Goods would necessarily conform to the model or sample.

THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE BUYER “AS IS” AND “WITH ALL FAULTSAND SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE.

5.       Limitation of Liability; Actions. IN NO EVENT SHALL SELLER BE LIABLE UNDER THIS AGREEMENT TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.

NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.

  
 

 

6.       Governing Law; Venue. Except as otherwise provided for herein, this Agreement and all rights and obligations of the parties shall be governed by the Uniform Commercial Code as enacted and in force in the State of Wyoming. The parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in the USA.

7.       Entire Agreement; Modification; Waiver. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise. No change or modification to this Agreement shall be valid unless in writing and signed by an authorized representative of the parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.

In witness of the mutual promises made above, Buyer and Seller have executed this agreement on the date set forth below.

SELLER   BUYER  
       
By: _________________________________   By: _________________________________  
Name: ______________________________   Name: ______________________________  
Title: _______________________________   Title: _______________________________  
Date: _______________________________   Date: _______________________________  

 2 
 

 

EXHIBIT A

EQUIPMENT LIST

 

COMMERCIAL AND OTHER TERMS

TOTAL PRICE: $_______________

PAYMENT TERMS:

 

ESTIMATED DELIVERY DATE:

DELIVERY DESTINATION ADDRESS: CleanSpark Inc. 2380 Godby Rd College Park, GA 30349 USA

WIRE TRANSFER INSTRUCTIONS:

 

SPECIFICATIONS (IF ANY):     

 3 
 

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This Amendment to Employment Agreement (this “Amendment”), dated as of April 16, 2021 (the “Effective Date”), is entered into by and between CleanSpark, Inc., a Nevada corporation (the “Company”), and Zachary Bradford (the “Employee”). This Agreement amends that certain October 1, 2020 Employment Agreement (“Prior Agreement”), between the parties concerning employment terms.

 

RECITALS

 

WHEREAS, the Employee desires to enter into this Amendment, to be effective as of the Effective Date, which sets forth the terms and conditions of the Employee’s employment with the Company from and after the Effective Date;

 

WHEREAS, the parties to this Amendment now desire to make certain modifications and

amendments to the Prior Agreement provided herein; and

 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

  

AGREEMENT

 

1)The below will be added to Section 5(a) Base Salary:
a.Effective April 1, 2021, in addition to the cash base salary, Employee shall be paid 0.6 Bitcoin (BTC) per month or 7.2 BTC per year. This monthly payment will terminate if the Company for any reason in the future no longer mines BTC or Employee is no longer employed by the Company.

 

2)Additional contingent Incentive Compensation to be added to Exhibit A “October 1, 2020-September 30, 2021 Compensation Agreement”:
i.If Revenues of the Company plus all Realized Gains less Realized Losses of the Same Class in the current fiscal year exceeds $30 Million, then a cash bonus of $100,000 will be granted.
a)Such bonus will be in addition to any other consideration already established by the board of directors.
ii.If the Company’s Closing Market Capitalization exceeds $1 Billion for 15 days during the fiscal year it shall result in a cash bonus of a $250,000 and 150,000 Restricted Stock Units (“RSUs”)
iii.If the Company’s Closing Market Capitalization exceeds $2 Billion for 15 days during the fiscal year it shall result in a cash bonus of a $500,000 and 300,000 RSUs

 1 
 

 

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement effective as of the Effective Date.

 

COMPANY:

 

CLEANSPARK, INC.,
a Nevada corporation

 

 

Dated: ___April 16, 2021______________ By: /s/ Larry McNeill_______________

Larry McNeill, Chairman of the

Compensation Committee

 

EMPLOYEE:

 

 

Dated: ___April 16, 2021______________ By: /s/ Zachary Bradford____________

Zachary Bradford

 

 2 
 

 

 

 

 

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This Amendment to Employment Agreement (this “Agreement”), dated as of April 16, 2021 (the “Effective Date”), is entered into by and between CleanSpark, Inc., a Nevada corporation (the “Company”), and Lori Love (the “Employee”). This Agreement amends that certain October 1, 2020 Employment Agreement (“Prior Agreement”), between the parties concerning employment terms.

 

RECITALS

 

WHEREAS, the Employee desires to enter into this Amendment, to be effective as of the Effective Date, which sets forth the terms and conditions of the Employee’s employment with the Company from and after the Effective Date;

 

WHEREAS, the parties to this Amendment now desire to make certain modifications and

amendments to the Prior Agreement provided herein; and

 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

 

AGREEMENT

 

1)Additional contingent Incentive Compensation to be added to Exhibit A “October 1, 2020-September 30, 2021 Compensation Agreement”:
i.If Revenues of the Company plus all Realized Gains less Realized Losses of the Same Class in the current fiscal year exceeds $30 Million, then a cash bonus of $40,000 will be granted.
a)Such bonus will be in addition to any other consideration already established by the board.

 1 
 

 

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement effective as of the Effective Date.

 

 

 

COMPANY:

 

CLEANSPARK, INC.,
a Nevada corporation

 

 

Dated: ___April 16, 2021______________ By: /s/ Larry McNeill_______________

Larry McNeill, Chairman of

the Compensation Committee

 

EMPLOYEE:

 

 

Dated: ___April 16, 2021______________ By: / s/ Lori Love___________________

Lori Love

 

 2 
 

 

 

 

 

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This Amendment to Employment Agreement (this “Amendment”), dated as of April 16, 2021 (the “Effective Date”), is entered into by and between CleanSpark, Inc., a Nevada corporation (the “Company”), and S. Matthew Schultz (the “Employee”). This Agreement amends that certain October 1, 2020 Employment Agreement (“Prior Agreement”), between the parties concerning employment terms.

 

RECITALS

 

WHEREAS, the Employee desires to enter into this Amendment, to be effective as of the Effective Date, which sets forth the terms and conditions of the Employee’s employment with the Company from and after the Effective Date;

 

WHEREAS, the parties to this Amendment now desire to make certain modifications and

amendments to the Prior Agreement provided herein; and

 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

 

AGREEMENT

 

1)The below will be added to Section 5(a) Base Salary:

 

a.Effective April 1, 2021, in addition to the cash base salary, Employee shall be paid 0.5 Bitcoin (BTC) per month or 6.0 BTC per year. This monthly payment will terminate if the Company for any reason in the future no longer mines BTC or Employee is no longer employed by the Company.

 

2)Additional contingent Incentive Compensation to be added to Exhibit A “October 1, 2020-September 30, 2021 Compensation Agreement”:
i.If Revenues of the Company plus all Realized Gains less Realized Losses of the Same Class in the current fiscal year exceeds $30 Million, then a cash bonus of $80,000 will be granted.
a)Such bonus will be in addition to any other consideration already established by the board of directors.
ii.If the Company’s Closing Market Capitalization exceeds $1 Billion for 15 days during the fiscal year it shall result in a cash bonus of a $200,000 and 100,000 Restricted Stock Units (“RSUs”)
iii.If the Company’s Closing Market Capitalization exceeds $2 Billion for 15 days during the fiscal year it shall result in a cash bonus of a $400,000 and 200,000 RSUs.

  
 

 

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement effective as of the Effective Date.

 

 

 

COMPANY:

 

CLEANSPARK, INC.,
a Nevada corporation

 

 

Dated: ___April 16, 2021______________ By: _/s/ Larry McNeill_______________

Larry McNeill, Chairman of

the Compensation Committee

 

EMPLOYEE:

 

 

Dated: ___April 16, 2021______________ By: _/s/ S. Matthew Schultz___________

S. Matthew Schultz

 

 2 
 

 

 

 

 

 

 

 

Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer

 

I, Zachary Bradford, certify that;

 

1.   I have reviewed this Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 of CleanSpark, Inc. (the “registrant”);

 

2.   Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.   Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a.   Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.   Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.   Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.   Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.   All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.   Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 6, 2021

 

/s/ Zachary Bradford

By: Zachary Bradford

Title: Chief Executive Officer

 

Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer

 

I, Lori Love, certify that;

 

1.   I have reviewed this Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 of CleanSpark, Inc. (the “registrant”);

 

2.   Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.   Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a.   Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.   Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.   Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.   Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.   All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.   Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 6, 2021

 

/s/ Lori Love

By: Lori Love

Title: Chief Financial Officer

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND

CHIEF FINANCIAL OFFICER

PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of CleanSpark, Inc. (the “Company”) on Form 10-Q for the quarter ended March 31, 2021 filed with the Securities and Exchange Commission (the “Report”), I, Zachary Bradford, Chief Executive Officer of the Company, and I, Lori Love, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

1.The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

 

2.The information contained in the Report fairly presents, in all material respects, the consolidated financial condition of the Company as of the dates presented and the consolidated result of operations of the Company for the periods presented.

 

By: /s/ Zachary Bradord
Name: Zachary Bradford
Title: Chief Executive Officer
Date: May 6, 2021
   
By: /s/ Lori Love
Name: Lori Love
Title: Chief Financial Officer
Date: May 6, 2021

 

This certification has been furnished solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.



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