Last Updated: November 5, 2021
This Compass Marketplace Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the online marketplace platform (as defined below) and is an agreement between Compass Mining Inc. (“Compass,” “we,” “us,” or “our”) and you or the entity you represent (“Seller,” “you,” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented or otherwise execute this Agreement (the “Effective Date”). Seller represents to Compass that Seller is lawfully able to enter into contracts (i.e., Seller is not a minor or otherwise restricted from entering into this Agreement). If Seller is entering into this Agreement for an entity, Seller represents to Compass that Seller has legal authority to bind that entity.
Section 1 – MARKETPLACE PLATFORM
- Compass operates an online marketplace platform (the “Platform”) to allow purchases and sales of cryptocurrency mining hardware (“Hardware”)and to assist in the completion of such sales transactions. Seller wishes to sell its Hardware as set forth in a specific Seller Schedule (“Seller Schedule”) through the Platform.
- The Platform is available only to individuals, sole proprietors, partnerships, businesses and corporations that can form legally binding contracts. Compass reserves the right to review and verify the information provided in your registration application and to, at its sole discretion, postpone or reject your registration approval; provided, however, that Compass undertakes no formal obligation to investigate individual member application data. Compass reserves the right, at its sole discretion, to review the status and compliance of any user with the terms of this Agreement and to suspend or terminate a user's use of the Platform and related services without notice.
- Seller agrees that all of the information provided in their registration application is timely, true and correct, including, but not limited to, the User's legal name, company name, address, phone number, fax number, e-mail address, tax identification number and other personal and business information, including any information required to comply with “Know Your Customer” compliance requirements. You agree to promptly notify Compass should the information provided need to be updated, changed or deleted. You understand that your failure to provide accurate and complete information may result in actions taken against you, including without limitation, the immediate suspension or termination of your use of the Platform. You understand that email will be the primary medium for Compass to communicate information about the Platform and you consent to such form of communication.
- Seller must set up an account with Compass’ third party provider to facilitate transactions through the Platform and to manage transactions through the Platform.
- For the convenience of Seller, we may use catalogs of stock images, descriptions and product specifications that are provided by third parties (including Compass users). You may use such content solely in connection with Platform listings during the time your listings are on the Platform. While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree not to hold our catalog content providers or us responsible for inaccuracies in catalogs. If you choose to include catalog content, you continue to be fully responsible for your listings and for ensuring that your listings are accurate, do not include misleading information, and comply with this Agreement and all Compass policies. The catalogs may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included with the catalogs or create any derivative works based on catalog content.
- Seller agrees that it will not attempt to sell any illegal or restricted assets of any kind through the Platform, including, without limitation, counterfeit goods, drugs, guns, pornography, munitions, hazardous waste, non-metal scrap or any other restricted or illegal item that Compass, in its sole discretion, deems to be unlawful or restricted.
- Seller shall maintain the security of passwords for its Platform account. Seller shall notify Compass if Seller suspects its Platform account has been hacked, stolen, accessed without authorization, or otherwise compromised. If Compass suspects any security violations have occurred related to Seller’s Platform account, Compass may suspend access to Seller’s Platform account and Hardware transactions pending resolution.
- Seller gives Compass the exclusive right to sell the Hardware and list the Hardware for sale on the Platform, as well as transfer the Hardware and do all things necessary to facilitate the sale and transfer of the Hardware to purchasers. Compass’s rights under this Agreement are exclusive and Seller may not itself or through other parties sell the Hardware.
Section 2 – HARDWARE LISTINGS
- By listing an item on the Platform, you agree to pay Compass’ fees, to assume full responsibility for the content of the listing and Hardware offered, and to accept the following listing conditions: When you list an item on the Platform, your listing will be posted on the Platform. Your listing may not be immediately searchable by keyword or category in some circumstances as Compass needs at least 24 hours to verify a listing. Compass may have policies that may also affect whether your listing appears in search results. Compass reserves the right to end your listing for any reason. Compass reserves the right to modify your listing’s Estimated Online Date depending on maintenance requirements, location changes, international logistics or supply chain factors. Where and whether your listing appears in search and browse results may be based on certain factors including, but not limited to, listing format, title, keywords, price, feedback, and ratings.
- The sale price of the Hardware shall be as set forth in a Seller Schedule and Seller shall not modify the Hardware sale price for at least a 30-day period, without the written consent of Compass.
- Upon the sale of Hardware, the buyer shall be responsible for the following costs associated with and resulting from relocation of the Hardware: shipping costs of the Hardware, storage, packaging or other material and other costs necessary to relocate the Hardware. Compass shall provide for mounting and unmounting of Hardware at no charge to the Seller.
- Upon successful completion of the sale of Hardware, ownership will be transferred from Seller to the buyer and such transfer will occur within approximately ten business days of completion of a transaction. Upon completion of such transfer, Seller will have no further ownership in or benefit from the Hardware.
- Failure of Seller to complete the sale of Hardware to a qualified buyer because of non-delivery or misrepresentation of the Hardware could result in damages payable Compass, and Seller shall indemnify, defend and hold Compass harmless from any such damages.
Section 3 – TRANSACTION SUCCESS FEES AND PAYMENT TERMS
- Upon the closing of a sales transaction, Seller agrees to pay Compass a success-based transaction fee for the marketing of their Hardware and integrated services in connection with the use of the Platform. The amount of this fee will vary based on the size and product type of the transaction and shall be communicated to and agreed by the Seller prior to listing the Hardware with the Company in a Seller Schedule. In addition, Compass reserves the right to collect and retain a buyer’s premium from customers in order to cover costs specific to any transaction. Premium services are optional and require additional fees. Seller's obligation to pay transaction fees incorporates by reference the Non-Circumvention clause contained herein.
- All fees and other amounts payable pursuant to this Agreement shall be paid in the listing currency (United States Dollars), free and clear of, and without deduction or withholding on account of, taxes of any kind. All of Compass’ success-based fees are deducted from the proceeds of sales transactions. Other eventual and mutual agreed payments are due within 15 days of invoice if not otherwise agreed upon in writing.Upon successful completion of the sale of Hardware Seller will receive funds, after deduction of Compass’ success-based fees or other applicable fees, in Seller’s wallet and such transaction will occur within approximately ten business days of completion of a transaction to allow settlement of funds. Seller acknowledge that despite Compass’ efforts, buyers may fail to perform. Compass does not provide any representations or guarantees that buyers will pay Sellers their agreed price on a timely basis.
- Seller acknowledges and agrees that Compass does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may be assessed or owed by Seller in connection with the use of the Platform or the sale of any Hardware. Seller understands and agrees that Seller is solely responsible for the calculation and payment of any taxes that may be incurred as a result of using the Platform or the sale of any Hardware. Seller shall indemnify, defend and hold Compass harmless from any and all claims, damages or losses with respect to any taxes, withholding or other related matters.
Section 4 – TERM AND TERMINATION
- Term. This Agreement shall continue until terminated in accordance with the terms herein.
- Termination. Compass may terminate this Agreement immediately following written notice if You: (i) fail to make any payments, after notice an opportunity to cure, due pursuant to this Agreement; (ii) violate, or fail to perform or fulfill any covenant or provision of this Agreement, and such breach is not cured within thirty (30) days after notification from Us; (iii) enter into bankruptcy, financial failure or insolvency, sales or merger with another person, corporation or entity, unless approval in advance by Compass; or (iv) for convenience by providing at least thirty (30) days prior notice to you. Without limiting the foregoing, either party may terminate or suspend all or a portion of the Agreement, with or without notice, if necessary, to be in compliance with applicable law, rules, regulations, administrative or judicial orders or decree. The parties agree that they will have no liability whatsoever to the other for any damage, loss, expense or cost as a result of such termination or suspension, except in connection with Seller’s obligations to pay any fees owed to Compass.
- Effects of Termination. Upon termination or expiration of this Agreement, Seller agrees to immediately pay to Compass all amounts then owed. Seller shall also be responsible for Compass’ reasonable costs to facilitate the recovery of funds owed, including attorney’s fees. If Compass recovers the Seller balance as a result of a Hardware sale, Compass will return any additional funds above what is owed by Seller within 30 days.
Section 5 – REPRESENTATIONS, WARRANTIES AND COVENANTS
- Authority and Capacity. Seller represents, warrants, and covenants to Compass that (i) it has full legal capacity, right, power and authority to execute and perform its obligations under this Agreement; and (ii) its performance of obligations hereunder will not violate any applicable laws or require the consent of any third party.
- Title to Hardware; Condition of Hardware. Seller represents, warrants and covenants to Compass that (i) Seller has clear title, free and clear of all security interests or liens, to the Hardware; and (ii) its receipt of Mining Rewards will not violate any applicable laws or require the consent of any third party. The Hardware is structurally sound, is in good operating condition and repair, and is adequate for the uses to which it is being put, and none of such Hardware is in need of maintenance or repairs.
- Accuracy of Information. Seller represents and warrants to Compass that: (i) the information Seller has provided for the purpose of establishing an account with Compass is true, accurate, current and complete; and (ii) Seller will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
- FCPA; Anti-Bribery. Seller represents and warrants that it shall comply with all applicable anti- bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the territory. Seller represents and warrants that it understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Each Party represents and warrants that, in the performance of this Agreement, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and it will advise the other Party of any change in such representation; (ii) it and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) it will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) it agrees to indemnify, defend, and hold the other Party harmless for damages and expenses resulting from a violation of the foregoing by itself or its representatives.
- OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), each Party may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Each Party certifies, represents and warrants that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the OFAC; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each Party hereby agrees to defend, indemnify and hold the other Party harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
- Compliance with Laws. Seller represents and warrants to Compass that: (i) Seller will not use the Platform for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, (ii) Seller shall not provide administrative access to the Platform to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States export regulations, which include Cuba, Iran, and Sudan, and (iii) Seller is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons.
- Non-Circumvention. Seller agrees not to negotiate, communicate, or transmit any information of any kind with any other Platform user (whether or not the user has placed a bid to purchase Hardware) in an attempt to complete a sale of Hardware or any other related assets through a means outside of Compass Platform (a "Circumventing Transaction"). In the event Seller completes a Circumventing Transaction within 12 months following the expiration of Seller's most recent listing, Seller understands and agrees that Seller is obligated to immediately remit a success fee to the Company equal to 10% of the final aggregate gross sale price for the Hardware or related assets sold in the Circumventing Transaction. This non-circumvention clause shall apply to Seller and its principals, employees, consultants, agents and representatives or any entity or person that Seller may be affiliated with currently, in the past or in future. Seller shall indemnify and ensure that Compass is fully compensated if a Circumventing Transaction is completed.
Section 6 – RISK FACTORS AND LIMITATIONS OF LIABILITY
- Platform is Only a Venue. The Platform is merely a venue for registered users to exchange information and facilitate transactions. It is expressly understood and agreed that Compass is not a broker or agent and has no duty to Seller or users with regard to transactions through the Platform other than those duties expressly outlined in this Agreement. Unless otherwise stated, Compass is not a party to the transactions between Seller and buyers. Compass does not guarantee the quality, safety, condition, or ownership of the Hardware advertised for sale and does not guarantee the accuracy of the information provided in the description of Hardware advertised for sale on the Platform. Compass does not guarantee Seller's or buyer's ability to complete transactions using the Platform and makes no representation regarding the identity, creditworthiness, or performance of any buyer or user.
- Network and Information Security Risk. Seller acknowledges and agrees that the use of telecommunications and data communications networks and the Internet may not be secure and that connection to and transmission of data and information over the Internet and such facilities provide the opportunity for unauthorized access to wallets, computer systems, networks and all data stored herein. Information and data transmitted through the Internet or stored on any equipment through which Internet information is transmitted may not remain confidential and Compass does not make any representation or warranty regarding privacy, security, authenticity, and non-corruption or destruction of any such information. Compass does not warrant that the Hosting Service or Seller’s use will be uninterrupted, error-free, or secure. Compass shall not be responsible for any adverse consequence or loss whatsoever to Seller’s use of the Hosting Service or the Internet. Use of any information transmitted or obtained by Seller from Compass is at Seller’s own risk. Compass is not responsible for the accuracy or quality of information obtained through its network, including as a result of failure of performance, error, omission, interruption, corruption, deletion, detect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of information or facilities, or malfunctioning of websites. Compass is also not responsible for any consequences of security incidents or breaches, including the loss or corruption of data, the unauthorized disclosure of data, or the unavailability of data.
- As Is and No Warranty. COMPASS MAKES NO WARRANTIES OR GUARANTEES RELATED TO THE AVAILABILITY OF THE PLATFORM. THE PLATFORM PROVIDED BY COMPASS IS PROVIDED “AS IS”. COMPASS MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY AGAINST INTERFERENCE; OR (IV) PRICE OR LIQUIDITY OF ANY DIGITAL ASSET. COMPASS DO NOT WARRANT THAT (I) THE PLATFORM SHALL BE AVAILABLE 24/7 OR FREE FROM MINOR INTERRUPTIONS; (II) THE PLATFORM SHALL MEET SELLER’S REQUIREMENTS OTHER THAN AS SET OUT IN WRITTEN AGREEMENT BETWEEN THE PARTIES; (C) THE PLATFORM SHALL PROVIDE ANY FUNCTION NOT DESIGNATED IN WRITTEN AGREEMENT BETWEEN THE PARTIES.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPASS BE LIABLE TO SELLER OR ANY BUYER FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS, INTERRUPTION OR USE OF DATA OR LOSS OF USE OF HARDWARE; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) COST OF COVER, ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT THAT ANY SUCH LOSS OR DAMAGES ARISES OUT OF SUCH PARTY’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT. THE LIMITATIONS SET FORTH HEREUNDER WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY. MOREOVER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPASS FOR ALL LOSSES, COSTS, AND DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF (I) ACTUAL DIRECT DAMAGES; AND (II) THE TOTAL AMOUNT PAID BY SELLER TO COMPASS UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE-MONTH PERIOD.
- Indemnification. Seller agrees to indemnity, defend and hold harmless Compass and its officers, managers, partners, directors, stockholders, members, agents, employees, affiliates, attorneys, heirs, successors and assigns from any and all claims, demands, actions, suits, proceedings and damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees arising from or in connection with (i) any legal, regulatory or governmental action against or including Seller; (ii) the maintenance or operation of Hardware; (iii) the sale of Hardware via the Platform; (iv) any damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees by any buyer of Hardware from Seller; and (v) any breach or nonperformance by Seller of any representation, warranties or covenants hereunder.
Section 7 – CONFIDENTIALITY
- General. “Confidential Information” refers to confidential or proprietary information of a party including, without limitation, business plans, strategies, forecasts and projections and information about business structures, operations, systems, finances, assets, investments, investment strategies, software and other technology systems, and personnel, customers and suppliers. Confidential Information does not include if it (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of the other party’s confidential information.
- Protection. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is Confidential Information of the other party. Neither party may use nor copy any Confidential Information except to the limited extent necessary to perform its obligations under this Agreement and will not disclose any Confidential Information to any person or entity other than to its employees who have a need to know the Confidential Information or as otherwise expressly permitted by this Agreement. Each party shall use the same measures that it uses to protect its own most confidential and proprietary information to protect the Confidential Information, but in no event less than commercially reasonable measures.
- Return of Confidential Information. Upon termination or expiration of this Agreement, or at any other time at the request of the other party, each party shall return to the other party, or destroy and delete, as applicable, all Confidential Information and any copies thereof in its possession or control.
- Government Inquiries and Investigations. Compass may cooperate with any government or legal investigation regarding any aspect of the Platform, which may include producing identifying information of Seller or Seller’s Confidential Information. Further, a receiving party may disclose confidential information subject to a valid court order, after providing notice to the disclosing party.
Section 8– INTELLECTUAL PROPERTY
- Compass IP. Compass intellectual property ("Compass IP") includes all inventions, know how, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or otherwise relating to the Platform, Compass’ services hereunder or Compass’ business operations. Compass IP may arise from Seller’s use and development of the Platform or as a result of Seller’s feedback regarding the Platform or Compass’ services ("Feedback"). All right, title and interest in any Compass IP, including Feedback, shall belong to Compass and shall be subject to the conditions of this Agreement. Seller hereby irrevocably assigns to Compass all right, title and interest Seller may have in any Feedback. Company may, at its option, file an application for intellectual property protection for any Feedback. If any such Feedback is created with Seller’s participation, Seller agrees to cooperate with Compass to assure that such application(s) will cover, to the best of Seller’s knowledge, all related assets, including all features of commercial interest and importance. Company IP, including Feedback, is the sole and exclusive property of Compass and may not be used without the prior express written consent of Compass.
- Use of Trademarks. Neither party may use the other party’s trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication or press release without the prior written consent of the other party in each case, which consent shall not be unreasonably withheld.
- Compass Reservation of Rights. Except for the rights expressly granted herein, all rights, titles, and interests to any and all customer and vendor relationships, proprietary rights and intellectual property rights in the Compass IP and Compass’ data will remain with and be the exclusive property of Compass.
Section 9– GOVERNING LAW AND DISPUTES
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any conflict of laws provisions. Except as provided, the courts of the State of Delaware sitting in the Wilmington, Delaware shall have exclusive jurisdiction over any disputes arising hereunder, and Seller expressly waives (i) any objection to jurisdiction or venue, any (ii) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts. To the extent to which it would otherwise apply, the Parties hereby expressly exclude the application of the United Nations Convention on the International Sale of Goods to this Agreement.
- Dispute Resolution and Binding Arbitration. To the fullest extent permitted by law, the parties hereto (the “Parties”) agree to waive their rights to seek remedies in court, including but not limited to rights to a trial by jury. The Parties agree that any dispute between or among them or their subsidiaries, affiliates or related entities arising out of, relating to or in connection with this Agreement, will be resolved in accordance with a confidential two-step dispute resolution procedure involving: (1) non-binding mediation, and (2) binding arbitration under the Federal Arbitration Act, 9 U.S.C. 1, et. seq., or state law, whichever is applicable. Any such mediation or arbitration hereunder will be under the auspices of the American Arbitration Association (“AAA”) pursuant to its then current Commercial Arbitration Rules and Mediation Procedures (the “AAA Commercial Rules”). No arbitration will be initiated or take place with respect to a given dispute if the Parties have successfully achieved a mutually agreed to resolution of the dispute as a result of the step-one mediation. The arbitration (if the dispute is not resolved by mediation) will be conducted by a single AAA arbitrator, mutually selected by the Parties, as provided for by the AAA Commercial Rules. The Parties agree that the arbitrator will apply the substantive law of the State of Delaware to all state law claims and federal law to any federal law claims, that discovery will be conducted in accordance with the AAA Commercial Rules or as otherwise permitted by law as determined by the arbitrator. In accordance with the AAA Commercial Rules (a copy of which is available through AAA’s website, www.adr.org), the arbitrator’s award will consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The Parties understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is limited under state and federal law. Any award rendered by the arbitrator will be final and binding, and judgment may be entered on it in any court of competent jurisdiction. Nothing contained herein will restrict either party from seeking temporary injunctive relief in a court of law. In the unlikely event the AAA refuses to accept jurisdiction over a dispute, the Parties agree to submit to Judicial-Arbitration-Mediation Services (“JAMS”) mediation and arbitration applying the JAMS equivalent of the AAA Commercial Rules.
- Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- Class Action Waiver. SELLER WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST COMPASS AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT SELLER IS PERMITTED BY LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST COMPASS, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. ANY CLAIM THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, UNCONSCIONABLE, VOID, OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION; HOWEVER, THE PARTIES UNDERSTAND THAT THEY ARE FOREGOING THESE RIGHTS AND ELECTING TO HAVE ANY DISPUTE DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
Section 10– GENERAL PROVISIONS
- Captions and Section Headings. Captions and section headings are for convenience only, are not a part of this Agreement and may not be used in construing it.
- Entire Agreement. This Agreement, including any Seller Schedule, exhibit or other document delivered pursuant to its terms, constitutes the entire agreement between the parties and supersedes any other agreement, whether oral or written, with respect to the subject matter hereof. There are no verbal agreements, representations, warranties, undertakings or agreements between the parties, and this Agreement may not be amended or modified in any respect, except by a written instrument signed by the parties to this Agreement. ANY WARRANTIES, TERMS, AND/OR CONDITIONS IN ANY PURCHASE AGREEMENTS, INVOICES, CREDIT APPLICATIONS, PURCHASE ORDERS, AND THE LIKE, OR ANY OTHER DOCUMENTS BETWEEN COMPASS AND SELLER THAT CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN ARE GOVERNED BY THE TERMS HEREIN.
- Force Majeure. Neither party will be responsible nor in any way liable for any delays or failures in performance, except for payment of the Hosting Service Fee under this Agreement, arising out of or relating to a Force Majeure Event. “Force Majeure Event” means a failure by the other party to perform any of its obligations under this Agreement, if such failure is caused by events or circumstances beyond its reasonable control, including, without limitation, acts of God, war, labor strike, terrorist act, fire, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, inclement weather, health epidemic or any law, order, regulation, seizure or other action of any governing authority or agency. Upon the occurrence of a Force Majeure Event, each party agrees to make a good faith effort to perform its obligations hereunder.
- Changes to Platform. Compass reserves the right, in its sole discretion, to modify, suspend or terminate any aspect of the Platform, including, but not limited to, content, sales features, and information without notice. Further, Compass reserves the right to implement system maintenance and system upgrades at such times Compass deems necessary.
- Equitable Relief. The parties acknowledge that the confidentiality provisions and the non-circumvention provisions in this Agreement are reasonable in scope and duration and are not unduly restrictive. Seller further acknowledges that a breach of any of such obligation of this Agreement will render irreparable harm to Compass, and that a remedy at law for breach of the Agreement is inadequate, and that Compass shall therefore be entitled to seek any and all equitable relief, including, but not limited to, temporary and permanent injunctive relief, without the necessity of posting a bond, and to any other remedy that may be available under any applicable law or agreement between the parties. Seller acknowledges and agrees that an award of damages to Compass does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
- No Assignment. Seller will not assign or otherwise transfer this Agreement or any of the Seller’s rights and obligations under this Agreement, without the prior written consent of Compass, which may be withheld in Compass’ sole discretion. Any assignment or transfer in violation of this Section will be void. Compass may freely assign this Agreement without the Seller’s consent (i) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (ii) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Compass as a party to this Agreement and Compass is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
- Notice. Unless stated otherwise, all notice and communication with Seller shall be provided by e-mail to the e-mail address provided by the Seller in their registration or via posting on the Platform. Notice shall be deemed to have been provided 24 hours after the e-mail was transmitted by Compass or at the time the information was posted on the Platform. If Compass receives a message that the Seller’s e-mail is disconnected, is no longer valid, or that the e-mail communication could not be delivered (for whatever reason), notice shall be deemed to have been provided at the time the information was posted on the Platform. Any mailed letters sent by Compass to Seller shall be considered courtesy copies only, and shall not have any bearing on the determination regarding the date notice was provided as stated above. Notice to Compass will be valid when sent by registered mail or carrier to Compass Mining, Inc., 251 Little Falls Drive, Wilmington, Delaware 19807.
- Relationship of the Parties. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever without the other’s prior written consent.
- Export of Hardware. You acknowledge and agree that certain goods, software, and technology may be subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (EAR), the International Traffic in Arms Regulations, and regulations of the U.S. Department of Treasury, Office of Foreign Assets Controls. You agree you will comply with all applicable export laws and regulations. You may not, without prior U.S. Government authorization, export, re-export, or transfer any goods, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of these countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any goods, software or technology may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction, e.g. nuclear, chemical, or biological weapons, and the missile technology to deliver them. Please check with the appropriate government agency for a current list of prohibited countries. Purchasing from the Platform and then reselling or attempting to export to these countries is prohibited. The list of prohibited countries is subject to change at the discretion of the U.S. Government. If you havee property that will be exported outside of the United States, you must obtain proper export licenses prior to our transfer of title and release of goods. We undertake no responsibility to assist in obtaining export licenses, and you agree to do so at your sole cost and expense associated with obtaining any licenses required. We cannot advise you as to which forms, which licenses, or what agencies may have jurisdiction over the property you purchase. You are encouraged to seek expert legal advice regarding export licensing.
- Survival. Any provision of this Agreement, which, by its nature, would survive termination or expiration of this Agreement, will survive any such termination or expiration, including, without limitation, those provisions concerning confidentiality, indemnification, and limitation of liability.
- Waiver. The failure of Compass to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. Any waiver of any right, provision, term or condition must be in writing, signed by our authorized representative, and will be effective only for the instance specified in the writing.
- Translation. This Agreement may be presented to the Seller in a language or languages other than English. Any presentation or translation of this Agreement into a language other than English shall be for the Seller’s convenience, but Seller will continue to be guided by the English language version of the Agreement in the event that there is a conflict between the English language version of the ser Agreement and any translation into a language other than English.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible and the remainder of this Agreement shall continue in full force and effect.
- Amendments. We may amend this Agreement at any time by posting the amended terms on the Platform. Our right to amend the Agreement includes the right to modify, add to, or remove terms in the Agreement. Except as stated otherwise in this Agreement or elsewhere, all amended terms shall automatically be effective 5 days after they are initially posted. Additionally, we will notify you through the Platform and/or by email. This Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a "writing" does not include an email message to us. Not further agreeing to any such amended terms may result in Compass deactivating your account and the removal of any listings, transaction data, reports, orders, etc.