Last Updated: October 12, 2021
This Compass Hardware Payment Agreement (this “Agreement”) contains the terms and conditions that govern your use of the installment payment option for Mining Hardware purchased through Compassmining.io (the “Site”) and is an agreement between Compass Mining Inc. (“Compass,” “we,” “us,” or “our”) and you or the entity you represent (“Customer,” “you,” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or otherwise sign this Agreement (the “Effective Date”). Customer represents to Compass that Customer is lawfully able to enter into contracts (e.g., Customer is not a minor). If Customer is entering into this Agreement for an entity, Customer represents to Compass that Customer has legal authority to bind that entity. Please see Section 9 for definitions of certain capitalized terms used in this Agreement.
This Agreement supplements the Compass Hardware Purchase Agreement, which sets forth all other provisions which govern the purchase of the Customer Hardware. All terms not defined here shall have the meaning ascribed to them in the Compass Hardware Purchase Agreement.
Section 1 – ELEGIBITY
In order to be eligible for the installment payment option set forth in this Agreement, all Hardware employing such option must be SHA256 ASICS, hosted at a Compass approved hosting facility in the United States or Canada and must be hosted pursuant to a valid Compass Hosting Service Agreement between the Customer and Compass.
Section 2 – HARDWARE SECURITY INTEREST
Under this agreement, Compass will provide Customer financing as to each item of Hardware, described in a Purchase Order entered into coterminous with this Agreement and incorporated herein. Customer shall acquire and maintain title to each unit of Hardware subject only to Compass's lien described below. Customer hereby grants and Compass a purchase money security interest in the all Hardware and all inventory of the Customer acquired from Compass or hereafter acquired from Compass, or hosted at a Compass-approved facility or hereafter hosted at a Compass-approved facility, as well as the proceeds and product from the sale of such Hardware and inventory, as security for Customer’s obligations hereunder until payment of the full purchase price plus service fees for the Equipment to Compass.
Section 3 – CUSTOMER'S OBLIGATIONS
Customer's obligations respecting Upfront Payment and Installment Payments obligation, which is governed by Section 5 below, commence upon the Effective Date of this Agreement. Debtor's obligations with respect to the Hardware and Compass's security interest will continue until full performance of all related obligations hereunder; provided, however, that if this Agreement is then in default, said obligations and security interest will continue during the continuance of said default. Upon termination of Compass's security interest in the Hardware.
Section 4 – PAYMENTS AND FEES
- Upfront Payment and Installment Payments. Customer agrees to pay Compass at the Effective Date an upfront payment equal to 25% Purchase Price of the Hardware subject to this Agreement (which Purchase Price is set forth in the Service Order) (the “Upfront Payment”) and thereafter a monthly payments thereafter of 6.25% of the Purchase Price (the “Installation Payments”).
- Service Fee. In addition to the payments terms set forth in Section 4.1, Customer agrees to pay Compass on the Effective Date a service charge for the provision of the installment payment services herein equal to 10% of the Purchase Price of the Hardware (which Purchase Price is set forth in the Service Order) (the “Service Fee”).
- Remedies for Non-Payment. If Compass has not received the an Installment Payment by he due date (including as a result of funds not available to be automatically debited on the date on which any such payment is due), the Customer shall pay a daily late fee to Compass in an amount equal to one percent (1%) of such overdue payment per day (the “Late Fee”). Further, if Customer fails to pay an Installment Payment on or before eight (8) calendar days of the due date, Compass shall redirect the Customer’s hashpower to mine any cryptocurrencies to satisfy amounts due to Compass. If Customer fails to pay an Installment Payment on or before fifteen (15) calendar days of the due date, Compass may sell the Hardware to pay all amounts due to Compass. Customer forfeits its rights to any cryptocurrency mining rewards resulting from the redirected hashpower that was used to satisfy Customer’s obligations to Compass.
- Payment. Customer shall pay the Upfront Payment and Service Fee in USD or USDT during the checkout process. In the event that the Customer fails to satisfy Upfront Payment and Service Fee within four (4) Business Days of checkout or date of the Purchase Order, Compass is under no obligation to reserve the Hardware for the Customer and will be able to freely sell the Hardware to another party. If Compass is unable to deliver the Hardware for any reason, Compass will return the entire Upfront Payment and Service Fee to Customer. Under no circumstance will any billing error affect the Customer’s obligation to pay the Upfront Payment, Installment Payments, Service Fee or any late fees or penalties to Compass. EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, CUSTOMER ACKNOWLEDGES THAT COMPASS IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
Section 5 – ACCELERATED PAYMENTS; NO OFFSET
CUSTOMER MAY ACCELERATE INSTALLMENT PAYMENTS OR CANCEL THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTHS. ANY ACCELERATED PAYMENT OF THE AGREEMENT WILL BE SUBJECT TO SATISFACTION OF THE SERVICE FEE AND ANY LATE FEES AND EXPENSES DUE TO COMPASS. ALL PAYMENTS UNDER THIS AGREEMENT ARE TO BE MADE WITHOUT OFFSET.
Section 6 – DEFAULT
- General. Unless expressly prohibited by law, Customer will be in violation or default on this Agreement if Customer (i) does not make any scheduled payment in full when it is due for the Payment Plan under this Agreement; (ii) any payment Customer makes is rejected or not paid by Customer’s bank or cannot be processed by Customer’s bank; (iii) Customer file or becomes the subject of a bankruptcy or insolvency proceeding; (v) Customer are unable to repay its obligations, including upon death or legally declared incapacity; (vi) Customer provided inaccurate, untrue, or incomplete information, or otherwise tried to defraud or provide material misrepresentations to Compass or its service providers; or (vi) Customer does not comply with any term of this Agreement. Further, If Compass reasonably determines the Customer is in violation of this Agreement, Customer authorizes Compass to take all such measures as Compass deems appropriate with respect to the satisfaction of the amount due under this Agreement and to satisfy any losses and amounts due to Compass. Such measure may include, but are not limited to: (i) canceling this Agreement: (ii) taking title to, reselling, or using Customer Hardware; (iii) redirecting hashpower from the Customer Hardware to a cryptocurrency wallet controlled by Compass and for the benefit of Compass; and/or (iv) unmounting and storing Customer Hardware. In the event that Compass resells the Hardware to satisfy amounts due by Customer, Compass retains the sole discretion to determine the sale price and Customer waives all rights or claims to such Hardware or the proceeds of the sale thereof.
- Effects of Default. If Customer is in default, certain actions by Compass may be taken with respect to this Agreement without notifying Customer unless notification is required by law. For example, depending on the default the following actions may be taken (i) Customer may be required to immediately pay the amount of any originally scheduled payment, the missed payment, any previously missed payment, and any additional Service Fees due as a result of a missed payment; (ii) Customer may be required to immediately pay the entire outstanding Purchase Price and Service Fees owing on Hardware at time of default; (iii) Customer may be continued to be charged Service Fees as long as Customer’s outstanding balance remains unpaid; and/or (iv) any other action to the extent not prohibited by law.
Section 7 – TERM AND TERMINATION
- Term. This Agreement will be effective upon the Customer’s initiation of payment during the checkout process.
- Termination. This Agreement shall remain effective up to and until the satisfaction of the final installation payment.
Section 8 – REPRESENTATIONS AND WARRANTIES
- Authority and Capacity. Each party represents, warrants, and covenants 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.
- Accuracy of Customer Information. Customer represents and warrants that: (i) the information Customer has provided for the purpose of establishing an account with Compass is true, accurate, current and complete; and (ii) Customer will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
- Affirmative Covenants. In addition to any other covenant or agreement contained herein: (i) Customer will defend the Hardware against the claims and demands of all other parties including, without limitation, defenses, setoffs, claims and counterclaims asserted by any obligor against Customer and/or Compass, will keep the Hardware free from all security interests, liens or other encumbrances, and will not sell, transfer, lease, assign, deliver or otherwise dispose of any Hardware or any interest therein without the prior written consent of Compass; (b) Customer will deliver to Compass, upon demand, any instruments, documents and chattel paper constituting, representing or relating to the Hardware or any part thereof; (c) Customer will execute and deliver to Compass such certificates of title, assignments and other documents and will take such other actions relating to the security interest granted herein and the perfection thereof as Compass may reasonably request and will pay all costs related to securing clear title; (d) Customer will promptly notify Compass in writing as soon as Customer has knowledge of, and furnish or cause to be furnished to Compass such information regarding the same as Compass may request of (i) the institution or filing of any litigation, action, suit, claim or counterclaim to which Customer is a party, or (ii) any administrative proceeding against, or investigation of, Customer by or before any regulatory body or governmental agency, where the outcome of such litigation, action, suit, claim, counterclaim, administrative proceeding or investigation may have a Material Adverse Effect on Customer, or such litigation, action, suit, claim, counterclaim, administrative proceeding or investigation questions the validity of this agreement, or any related document, or any action taken or to be taken pursuant to the foregoing; and furnish or cause to be furnished to Compass such information regarding the same as Compass may request.
Section 9 – LIMITATIONS OF LIABILITY
- Force Majeure. Compass shall not be liable (beyond return of the entire Purchase Price) for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any event beyond its control, including, without limitation, accident, fire, actual or threatened strike or riot, explosion, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, acts of God or public enemy, or any other cause or contingency beyond Compass’s direct control. The time for performance shall be extended for a period equivalent to the delay. If, by reason of any of the foregoing events, Compass’s supply of the Hardware shall be insufficient to meet all requirements, including its own, Compass shall have the right, at its option, and without liability, to allocate its available supply of Hardware among its present and future customers in such a manner as Compass deems equitable so long as Customer receives a return of a portion of the Purchase Price for any Hardware not delivered. If by reason of any of the foregoing events, the cost of the Hardware exceeds the Purchase Price, Compass shall have the right, at its option, to terminate such transaction without liability to Compass; provided that upon termination, Compass shall refund the entire Purchase Price to Customer.
- Limitation of Actions. EXCEPT IN THE EVENT OF FRAUD, NEGLIGENCE, WILLFUL MISCONDUCT OR THE BREACH OF A REPRESENTATION OR WARRANTY IN THIS AGREEMENT, NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE)) FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL, MULTIPLIED, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO AGREEMENT, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
- Indemnification. Both parties covenant and agree to indemnify and hold harmless the other and its members, officers, employees and agents from any and all costs, expenses, losses, damages and liabilities incurred or suffered, directly or indirectly, by any of them (including, without limitation, reasonable legal fees and costs) resulting from or attributable to (a) the breach of, or misstatement in, any one or more of the representations, warranties, obligations or covenants of Customer made in or pursuant to this Agreement; (b) the failure by Customer to pay any and all shipping costs, applicable taxes, customs, duties, tariffs, and the like arising from the transactions set forth in this the Agreement, (c) any act or omission of the indemnifying party, or (d) ownership or operation of the Hardware by Customer.
Section 10 – CONFIDENTIALITY
- General. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is Confidential Information of the other party. Neither party may use 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.
- Privacy. Compass warrants and represents that, Compass shall comply with all applicable privacy laws throughout the Term, and will take all reasonable steps within Compass’s power to ensure that Compass’s employees, contractors and other customers comply with all applicable privacy laws.
- Compass Proprietary Information. Except for the rights expressly granted herein, all rights, titles, and interests to any and all customer relationships, proprietary rights and intellectual property rights in Compass’s data will remain with and be the exclusive property of Compass.
- Government Inquiries and Investigations. Compass may cooperate with any government or legal investigation regarding any aspect of the Hosting Service or theservices herein, which may include producing identifying information of Customer.
Section 11 – DISPUTES
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. If AAA and JAMS refuse to accept jurisdiction, the Parties may litigate in a court of competent jurisdiction.
Section 12 – DEFINITIONS
- “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.
- “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. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder
- “Hardware” refers to the cryptocurrency mining hardware belonging to the Customer and specified in the Order Summary Page or Purchase Order.
- “Hosting Facility” or “Hosting Partner” means a data center owned, leased, operated or reserved by Compass or Compass partners through the Site.
- “Hosting Service” refers to services provided to Customer, if selected, by Compass to arrange shelf and/or rack space, sufficient electrical capacity at the required voltage and wattage, provision of electricity, monitoring and services (according to section 3.2) of Customer Hardware to achieve the Service Level (i.e., standard fixes, basic repairs or Hardware resets), and support from Compass Mining Concierge Team.
- “Losses” means all damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees.
- “Material Adverse Effect” shall mean a material adverse effect on: (a) the property, assets, financial condition, business or operations of the Customer or any guarantor; (b) the ability of Customer to perform any of its payment or other obligations under this agreement, or any related document to which it is a party; (c) the legality, validity or enforceability of the obligations of Customer under this agreement, or any related document to which it is a party; or (d) the ability of Compass to exercise its rights and remedies with respect to, or otherwise realize upon, any of the collateral or any of the security for the obligations of Customer to Compass or any affiliate of Compass under this Agreement or any document executed in connection herewith.
- “Purchase Order" means a written purchase order issued by Compass to the Customer for the Customer Hardware.
- “Purchase Price” means the total Hardware purchase price, import duties, tariffs, duties and insurance) for the Hardware as reflected in the Purchase Order.
Section 13 – 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 the Hardware Purchase Agreement, associated Purchase Order(s), 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 CUSTOMER THAT CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN ARE GOVERNED BY THE TERMS HEREIN. Compass may at any time revise the terms of this Agreement by updating these terms and by providing notice to Customer of that change.
- Force Majeure. Neither party will be responsible nor in any way liable for any delays or failures in performance, except for payment of the Purchase Price.
- Governing Law. This Agreement and all claims arising out of or related to this Agreement are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. The jurisdiction is exclusively to the courts within the State of Delaware.
- Injunctive Relief. The parties acknowledge that the Confidentiality provision of this Agreement is reasonable in scope and duration and are not unduly restrictive. Customer further acknowledge that a breach of any of confidentiality 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. Customer 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. Customer will not assign or otherwise transfer this Agreement or any of the Customer’s rights and obligations under this Agreement, without the prior written consent of Compass, which may be unreasonably withheld. Any assignment or transfer in violation of this Section will be void. Compass may assign this Agreement without the Customer’s consent (i) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (ii) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for 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. The Customer may not merge this Agreement with any other agreements with Compass it may be party to.
- Notice. All notices, requests, demands and other communications under this Agreement must be in writing and will be deemed duly given, unless otherwise expressly indicated to the contrary in this Agreement, (i) when personally delivered, (ii) upon receipt of a telephonic facsimile transmission with a confirmed telephonic transmission answer back, (iii) three (3) days after having been deposited in the United States mail, certified or registered, return receipt requested, postage prepaid, (iv) one (1) business day after having been dispatched by a nationally recognized overnight courier service, or (v) on the date transmitted if by email, addressed to the parties or their permitted assigns at such address or number as is given in writing by either party to the other.
- 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.
- 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
- Waivers. Any failure by any of the parties to comply with any of the obligations, agreements or conditions set forth in this Agreement may be waived by the other party or parties, but any such waiver will not be deemed a waiver of any other obligation, agreement or condition contained herein.
- Liquidated Damages Not Penalty. It is expressly agreed that any liquidated damages payable under this Agreement to Compass 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 non-feasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of such liquidated damages.
- No Restrictions Against Compass. Customer hereby acknowledges and agrees that Compass may sell any inventory, equipment, machinery, or other products, not specified in Purchase Order hereto to any party pursuant to any terms and conditions agreed to by Compass and nothing in this Agreement shall restrict Customer from the same.
- Attorney’s Fees. Customer will pay to Compass all reasonable attorney’s fees, arbitration, dispute resolution and expenses and all other costs and expenses that may be incurred by Compass in defending or enforcing any of the obligations of Customer under this Agreement or otherwise by reason of Customer’s default or failure to perform any of its obligations hereunder.