Basis of Contract
Quantity and Description
Acceptance and Delivery of Equipment
Risk and Property
Inspection and Testing of Equipment
Compliance with Law
Limitation of Liability
Intellectual Property Rights
Restrictions on Resale and Placement
1.1. The definitions and rules of interpretation in this clause apply in these Conditions.
Acceptance: Bitfury’s acceptance of the Customer’s Order by countersigning the Order.
Bitfury: Bitfury Holding B.V.
Conditions: the terms and conditions set out in this document (as amended and varied from time to time).
Contract: the contract between Bitfury and the Customer for the sale and purchase of the Equipment in accordance with these Conditions and each Order.
Control: in relation to a person, the power of another person to secure that the affairs of such person are conducted in accordance with the wishes of that other person: (a) by means of the holding of shares or other equity, or the possession of voting power, in or in relation to that person or any other person; or (b) by virtue of any powers conferred by the constitutional or corporate documents, or any other document, regulating that person or any other person.
Customer: the person, firm or company who purchases Equipment from Bitfury.
Equipment: the equipment as set out in each Order.
Group Company: in relation to a person, any other person that Controls, is Controlled by or is under common Control with that person.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade-marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: a signed purchase order from Customer to Bitfury for Bitfury to supply the Equipment to Customer in accordance with these Conditions.
Taxes: sales, use, withholding, value-added or other taxes in connection with the sale and delivery of the Equipment.
1.2. (a) Clause, Schedule and paragraph headings shall not affect the interpretation of this Contract; (b) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (c) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (d) unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular; (e) a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision; and (f) references to clauses are to the clauses of this Contract.
2.Basis of Contract
2.1. Each Order constitutes an offer by the Customer to purchase the Equipment in accordance with these Conditions.
2.2. A Contract shall come into existence upon Acceptance of an Order.
2.3. To the extent that the terms of an Order expressly contradict these Conditions, the terms of the Order shall control.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer specifically acknowledges that any samples, drawings, descriptive matter, or advertising produced by Bitfury and any descriptions or illustrations contained in Bitfury's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment described in them. They shall not form part of the Contract or have any contractual force.
3. Quantity and Description
3.1. Quantity and Description
The quantity and description of the Equipment shall be as set out in each Order.
3.2. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Bitfury shall be subject to correction without any liability on the part of Bitfury.
3.3. Bitfury reserves the right (but does not assume the obligation) to make any changes in the specifications of the Equipment which are required to conform with any applicable laws or regulations or which do not materially affect their quality or performance.
3.4. Bitfury's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
4.1. All prices shall be as stated in each Order. All prices are exclusive of Taxes. The Customer is responsible for payment of all applicable Taxes. Both parties are responsible and liable for their own respective corporate and income taxes.
4.2. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and duties and importation costs. The Customer is responsible for all such costs.
5.1. The Customer shall pay the invoiced price specified for the Equipment in cleared funds (or in another manner mutually agreed in writing between the parties) at the time of payment as stated in each Order. Payment shall be made according to the instructions supplied in writing by Bitfury or as stated in each Order. Time of payment is of the essence.
5.2. Bitfury may also invoice the Customer for (a) the Taxes, (b) costs of delivery for the Equipment; (c) costs of insuring the Equipment during delivery; and (d) any other costs associated with delivering the Equipment. The Customer shall pay such invoice(s) in full in cleared funds within seven calendar days of the invoice date.
5.3. If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Bitfury, Bitfury shall be entitled to: (a) terminate the Contract or suspend the delivery of Equipment to the Customer; (b) charge interest on the amount outstanding from the due date to the date of receipt by Bitfury (whether before or after any judgment), at the rate of the lesser of 10% per annum or, if applicable, the maximum permitted under English law, accruing on a daily basis and being compounded quarterly; (c) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full; and (d) make a storage charge for any undelivered Equipment at its current rates from time to time.
5.4. All sums payable to Bitfury under the Contract shall become due immediately on its termination, notwithstanding any other provision of the Contract. This Condition is without prejudice to any right to claim for interest under the law, or any right under the Contract.
5.5. Bitfury may, without prejudice to any other rights it may have, set off any liability of the Customer or any Customer Group Company to Bitfury or any Bitfury Group Company against any liability of Bitfury or any Bitfury Group Company to the Customer or any Customer Group Company.
6. Acceptance and Delivery of Equipment
6.1. Bitfury shall not be under any obligation to supply all or any of the Equipment ordered by the Customer, until Acceptance.
Bitfury shall use reasonable endeavours to promptly notify the Customer in writing after receipt of an Order as to whether Bitfury accepts or does not accept the Order. Upon Acceptance of the Order, the Customer shall be bound by the terms thereof.
6.2. Bitfury shall use its reasonable endeavours to deliver the Equipment on the date(s) and location(s) specified in the Order(s).
6.3. The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If Bitfury is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, Bitfury may levy additional charges to recover its loss arising from this event.
6.4. The Customer shall be deemed to have accepted the Equipment when the Customer has had seven days to inspect it after delivery.
6.5. Bitfury may take out insurance for the delivery of the Equipment, the cost to be borne by the Customer.
7. Risk and Property
7.1. The Equipment shall be at the risk of Bitfury until delivery to the Customer at the place of delivery specified in the Order. Bitfury shall off-load the Equipment at the Customer's risk.
7.2. Subject to Condition 7.3, ownership of the Equipment shall pass to the Customer on the completion of delivery (including without limitation off-loading).
7.3. If, in accordance with Condition 16.1, Bitfury terminates the Contract for the Customer’s non-payment or other breach of Condition 5 and such non-payment is in respect of any Equipment already delivered, Bitfury shall have the option to repossess such Equipment. If exercised, ownership of the repossessed Equipment shall pass back to Bitfury on the completion of collection (including without limitation loading).
8. Inspection and Testing of Equipment
8.1. Bitfury shall: (a) test and inspect the Equipment on delivery to ensure that it complies with the requirements of the Contract; and (b) if so requested by the Customer, give the Customer reasonable advance notice of such tests (which the Customer shall be entitled to attend).
9. Compliance with Law
9.1. The Customer shall be responsible for complying with any applicable laws and regulations, including those governing: (a) the importation of the Equipment into the country of destination; and (b) the export and re-export of the Equipment, and shall be responsible for the payment of any duties on it.
9.2. The Customer warrants, represents and covenants to Bitfury that it: (a) shall not import, distribute, deploy and use the Equipment in any non-member state of the United Nations or any country subject to any sanctions program of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury; (b) shall import, distribute, deploy and use the Equipment solely in compliance with all applicable laws and regulations; (c) shall use the Equipment only for generating SHA-256 computing power; and (d) shall not (and shall not permit any person to) modify the Equipment, or reverse assemble, reverse compile or reverse engineer the Equipment, or otherwise attempt to discover any underlying proprietary information.
10.1. Bitfury warrants to the Customer that the Equipment, other than any power supply unit, is free from defects of workmanship and materials, and that under normal use and conditions, it will operate substantially in accordance with, and perform, the material functions and features as set out in the product description in the Order for a period of 90 days following delivery. Bitfury undertakes (subject to the remainder of this Condition 10), at its option, to repair or replace Equipment (including with refurbished parts or refurbished Equipment) which is found to be defective as a result of faulty materials or workmanship within 90 days of delivery. Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the 90-day period.
10.2. In cases where the Equipment is not located at Bitfury’s facilities, Bitfury shall not in any circumstances be liable for a breach of the warranty or undertake any warranty service contained in Condition 10.1 unless: (a) the Customer gives written notice of the defect to Bitfury within seven days of the time when the Customer discovers or ought to have discovered the defect; and (b) after receiving the notice, Bitfury is given a reasonable opportunity to examine such Equipment for the defect or malfunction at its current location or, if asked to do so by Bitfury, the Customer returns such Equipment to Bitfury's premises (or those of Bitfury’s agent or sub-contractor) or a repair facility specified by Bitfury at the Customer’s cost. Customer shall be responsible for picking up the Equipment after any warranty service. Bitfury shall not in any circumstances be liable for a breach of the warranty in Condition 10.1 if the Customer makes any use of Equipment in respect of which it has given written notice under Condition 10.2(a).
10.3. The warranty does not apply to (a) normal wear and tear; and (b) damage to or loss of the Equipment caused by Force Majeure Events. In addition, in cases where the Equipment is not located at Bitfury’s facilities, the warranty does not apply to: (a) damage resulting from accident, abuse, misuse, neglect, improper handling or improper installation; (b) damage to or loss of the Equipment 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; (c) damage caused by operator error, or non-compliance with manufacturer’s instructions as to the storage, installation, commissioning, electric powering, internet connectivity, use or maintenance of the Equipment or (if there are none) good trade practice; (d) alterations or repairs to the Equipment without the written consent of the manufacturer; (e) damage or loss of functionality due to interoperability with the Customer’s software and/or hardware; and (f) burnt hashboards or chips resulting from improper use of the Equipment or use outside its normal application.
11.1. Any liability of Bitfury for non-delivery of the Equipment shall in all circumstances be limited to the amount paid by Customer for the Equipment.
11.2. If Bitfury's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under Condition 17), the Customer shall in all circumstances be liable to pay to Bitfury all reasonable costs, charges or losses sustained by it as a result, subject to Bitfury notifying the Customer in writing of any such claim it might have against the Customer in this respect.
11.3. If any claim by the Customer under Condition 10 is subsequently found by Bitfury to be outside the scope or duration of the warranty in Condition 10, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
12. Limitation of Liability
12.1. The following provisions set out the entire financial liability of Bitfury (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of the Contract howsoever arising; and (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation, negligence) arising out of or in connection with the Contract.
12.2. All warranties, conditions and other terms implied by statute or common law, including any warranties of merchantability, fitness for a particular purpose, good title, satisfactory quality and noninfringement are specifically disclaimed by Bitfury and excluded from the Contract to the fullest extent permitted by law.
12.3. Nothing in these Conditions excludes or limits the liability of Bitfury for: (a) death or personal injury caused by Bitfury's negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot by law be excluded or limited.
12.4. Subject to Condition 12.3:
(a) Bitfury shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: loss or profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) Bitfury's total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the amount paid by the Customer for the Equipment.
13. Intellectual Property Rights
13.1. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of Bitfury or its Group Companies or (as the case may be) a third party.
13.2. Bitfury or its Group Companies shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of Bitfury.
13.3. Bitfury's Intellectual Property Rights in and relating to the Equipment and to any documents supplied in connection therewith shall remain the exclusive property of Bitfury or its Group Companies, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
14.1. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Bitfury or its agents, and any other confidential information concerning Bitfury's business, the Equipment or any other Bitfury products which the Customer may obtain.
15. Restrictions on Resale and Placement
15.1. The Customer shall not, without Bitfury’s prior written consent, resell, wholesale, retail or otherwise alienate the Equipment in full or in part or in any configuration to any third party residing or having business in North America.
15.2. The Customer shall not place, install or permanently locate in any manner the Equipment on or in any territory of any jurisdiction or state on the continent of North America. The Customer shall keep Bitfury indemnified for any fines, penalties, losses, damages, sanctions or any kind of payment, restriction or obligation imposed on Bitfury due to breach of this Condition 15.2.
15.3. The Customer represents and warrants that it is not nor is any director, officer, agent, employee or Group Company of the Customer currently subject to any U.S. sanctions administered by OFAC; any EU sanctions administered, inter alia, by European External Action Service (the “EEAS”); or any UK sanctions administered by Office of Financial Sanctions Implementation (the “OFSI”). The Customer will not directly or indirectly use the Equipment or any proceeds therefrom, or lend, contribute or otherwise make available the Equipment or such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S, UK or EU sanctions. The Customer will not resell the Equipment to any individual or corporate subject to sanctions under any of the OFAC; EEAS; or OFSI rules.
16.1. Without prejudice to any other right or remedy available to Bitfury, Bitfury may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer if: (a) the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control; (b) the Customer becomes insolvent; (c) the Customer enters into any arrangement with its creditors; (d) any filings are made in relation to the winding up of the Customer; (e) an administrator or receiver is appointed to manage the affairs of the Customer; (f) a creditor takes possession of any of the Customer’s property; (g) the Customer stops trading; or (h) the Customer materially breaches the Contract, which shall include any non-payment or other breach of Condition 5.
16.2. Conditions 5.5, 7.3, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25 and 26 and any other provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract, shall survive termination of the Contract, however arising, and remain in full force and effect.
16.3. Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
17. Force Majeure
17.1. Bitfury reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of Bitfury or any other party), failure of a utility service (including power outages, power curtailments and planned or unplanned maintenance) or transport, telecommunications, internet or other network, acts of God or nature, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, breakdown of plant or machinery, fire, explosion, flood, storm, lightening, earthquake, subsidence, epidemic or other natural disaster, or default of suppliers or sub-contractors (a “Force Majeure Event”).
18.1. The Customer agrees to indemnify, defend and hold Bitfury, its officers, directors, employees and agents, harmless from all loss, liability, claims or expenses (including reasonable attorneys' fees) arising out of (a) any breach of the Contract by the Customer or (b) any use, condition or operation of the Equipment, regardless of where, how and by whom operated, including but not limited to liabilities arising from bodily injury, including death, or property damage to any person.
19.1. The Customer agrees to take no action which is intended, or would reasonably be expected, to harm Bitfury or its reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity to Bitfury. Such actions include disparaging remarks, comments or statements that impugn the character, honesty, integrity, morality or business acumen or abilities in connection with any aspect of the operation of Bitfury’s business. The Customer’s non-disparagement obligations extend to Bitfury’s Group Companies and their respective shareholders, directors, officers, employees, representatives and agents.
20.1. No waiver of any breach of any provision of the Contract shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorised representative of the waiving party.
20.2. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.1. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. The parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.2. Any modification to or deletion of a provision or part provision under this Condition 21 shall not affect the validity and enforceability of the rest of this Contract.
22. Entire Agreement
22.1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2. Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
22.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
23.1. The Customer shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2. Bitfury may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
24. Third Party Rights
24.1. Except as set out in Condition 5.5, a person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 or any other equivalent legislation to enforce or to enjoy the benefit of any term of this Contract and consequently no one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
25.1. Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
25.2. Any notice or communication shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second calendar day after posting.
25.3. This Condition 25 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Governing Law & Jurisdiction
26.1. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the laws of England and Wales.
26.2. Any dispute, controversy or claim arising out of or relating to the Contract, or the breach, termination or invalidity hereof, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed incorporated by reference into this Condition 26. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English and Wales.