Compass Hardware Purchase Agreement
This Compass Hardware Purchase Agreement (this “Agreement”) contains the terms and conditions that govern your purchase of Mining Hardware (as defined below) through Compassmining.io (the “Site”) and is an agreement between Compass Mining Inc. (“Compass,” “we,” “us,” or “our”) and the customer identified on the signature page (“Customer,” “you,” or “your”). This Agreement takes effect when you 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 0 for definitions of certain capitalized terms used in this Agreement.
- 1 SALE OF HARDWARE
1.1Order of Hardware. The Customer shall place a Purchase Order through Site or through other methods accepted by Compass, and such Purchase Order shall constitute an irrevocable offer to purchase specific Hardware from either Compass or a third-party seller as such Hardware and third-party seller may be specified in the Purchase Order. Each Purchase Order shall be subject to the terms of this Agreement, which will be incorporated therein by reference. In the event of any conflict between the express terms of a Purchase Order and the terms of this Agreement, the express terms of the Purchase Order shall prevail with respect to that Purchase Order only. The unit hashrate is estimated, the final unit hashrate may be changed according to production.
1.2Payment and Delivery. The Customer shall make payment in accordance with the terms specified in Section 0. Compass shall also provide for the delivery to the Delivery Point.
1.3No Refunds, Returns or Exchanges. The Customer acknowledges and confirms that the Purchase Order is irrevocable and cannot be canceled by the Customer, and that the product(s) and Hardware ordered from Compass are not returnable, refundable or exchangeable. All sums paid by the Customer to Compass shall not be subject to any abatement, set-off, claim, counterclaim, adjustment, reduction, or defense for any reason. Down payment and payment of the total Purchase Price are not refundable, except only as expressly set forth in Section 6.1 hereof. Refund requests based on shipment delay WILL NOT be accepted if delay is caused by the Manufacturer or any third party, including but not limited to the carrier, customs, or import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise, for any failure, delay or error in delivery of the Hardware for any reason whatsoever. Further, unless otherwise agreed in writing by Compass, upon arranging for delivery of the Hardware to Customer directly or to a non-Compass hosting facility, such Hardware is ineligible for hosting at a Compass Hosting Facility or for any returns, refunds or exchanges. Unless separately agreed to between the parties, Compass will not facilitate private sales of Hardware. Compass cannot and does not guarantee any proposed sales or transfers of Hardware, unless conducted directly through the Compass Marketplace, as Compass cannot otherwise ensure proper transfer of Hardware, ensure privately owned Hardware specifications and function, or other details of any proposed transaction.
1.4Discontinuance. Customer agrees and acknowledges the availability of the Hardware is subject to the discretion of the applicable Manufacturer, and that said Manufacturer may modify or discontinue the Hardware at any time. Customer further agrees and acknowledges that Compass shall have no liability for any unavailability of, modifications to, or discontinuation of the Hardware by the applicable Manufacturer or Compass’ supplier.
- 2 PAYMENT TERMS AND TAXES
2.1Purchase Price. The Purchase Price for the Hardware is as reflected in the Purchase Order. Unless otherwise set forth in the Purchase Order, the Customer must pay the entire balance of the Purchase Price prior to the Hardware transferring title to the Customer. If the Manufacturer of the Hardware issues any coupons for the Hardware, Compass will pass coupons directly onto the Customer by applying any discount from the coupon to Purchase Price. Unless otherwise set forth on a Purchase Order, the price for the Hardware excludes all packaging costs, transportation costs, freight, insurance, or any required federal, state, or local sales or other taxes (except for taxes based on Compass’ net income), duties, export or custom charges, VAT charges, brokerage, or other fees, for which Customer shall be fully responsible
2.2Payment. Customer shall pay the Purchase Price in U.S. Dollars (USD) or Tether coins (USDT) during the checkout process or according to 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 until full payment is received according to the Purchase Order. If Compass is unable to deliver the Hardware for any reason, Compass will return the entire Purchase Price allocable to such Hardware not delivered to Customer. Under no circumstance will any billing error affect the Customer’s obligation to pay the Purchase Price to Compass. Customer expressly authorizes to place and, upon payment in full of the Purchase Price, pay for such order. EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, CUSTOMER ACKNOWLEDGES THAT COMPASS IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON. Customer hereby grants to Compass a purchase money security interest in all Hardware and all inventory of the Customer acquired from Compass or hereafter acquired from Compass, as well as the proceeds and product from the sale of such Hardware and inventory, as security for Customer’s obligations hereunder until Compass receives payment of the full Purchase Price, plus any applicable fees.
- 3 DELIVERY
3.1Shipment. Shipment shall be delivered duties paid (“DDP”). Customer agrees that the Delivery Date is an estimate only and may be changed. Compass will use commercially reasonable efforts to cause the Hardware to be shipped in accordance with the Delivery Dates. However, Compass shall not be liable for failure to ship the Hardware as estimated. Compass shall not be responsible for any delivery delay caused by the Customer, Manufacturer, or any third party, including but not limited to a carrier, supplier, customs or import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise, for any failure, delay or error in delivery of the Hardware for any reason whatsoever.
3.2Delivery Point. Hardware purchased through Compass, if designated by Customer, may be delivered to a Hosting Facility operated by Compass for provision of Hosting Services, Compass’ agents, or a third party for hosting. Customer may also have Hardware delivered to a different Delivery Point where Compass Hosting Services will not be used. If Customer fails to provide Compass with the delivery place or the delivery place provided by Customer is a false address or does not exist, or the Purchaser rejects the Hardware, Customer shall bear any related costs incurred (including storage costs, warehousing charge and labor costs). Compass may issue the Customer a notice of self-pick-up and ask the Customer to pick up the Hardware itself. Compass shall be deemed to have completed the delivery obligation under this Agreement after two (2) Business Days following the issue of the self-pick-up notice. After thirty (30) days of the self-pick-up notice, Compass shall be entitled to dispose of the Hardware in any manner as it deems appropriate, including selling the same to another purchaser. In the event that the Customer elects to take delivery of the Hardware or instructs that Compass deliver the Hardware to a non-Compass approved and operated facility, then the Customer may not employ the Compass Hosting Services for such Hardware. When Hardware is delivered to a non-Compass approved and operated facility, Customer shall be solely responsible for the installation, maintenance and operation of the Hardware and Compass has no further obligations whatsoever.
3.3Cancellation or Modification. Customer may not modify, terminate, cancel, or otherwise alter Purchaser Orders, or defer shipment, after acceptance of the Purchase Order from Compass without the written consent of Compass, which may be withheld or conditioned in Compass’ sole discretion.
- 4 TERM AND TERMINATION
4.1Term. This Agreement will be effective upon the Customer’s initiation of payment during the checkout process.
4.2Termination. This Agreement shall remain effective up to and until the delivery of the last Hardware and Customer’s final payment of all fees, costs and expenses as required hereunder and shall terminate immediately, subject to the provisions surviving termination outlined in Section 10.9.
- 5 REPRESENTATIONS AND WARRANTIES
5.1Authority 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.
5.2Title to Customer Hardware and Receipt of Mining Rewards. Customer represents, warrants and covenants that (i) Customer has clear title, free and clear of all security interests or liens (except those granted hereunder or in a separate agreement where Compass is a party), to Hardware, including the legal right to use, operate and locate the Hardware; and (ii) its receipt of Mining Rewards will not violate any applicable laws or require the consent of any third party.
5.3Accuracy 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.
5.4Export Regulations. Each Party acknowledges that certain Hardware purchased by Compass on behalf of Customer hereunder and any related documentation and other technology of the Manufacturer of the Hardware may be subject to applicable export control and sanction laws, regulations, and orders. Customer certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. Customer hereby agrees to defend, indemnify and hold Compass 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.
5.5FCPA; Anti-Bribery. In carrying out its responsibilities hereunder, each Party represents 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. Each Party 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 5.5, “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. Customer represents and warrants that (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 Compass harmless for damages and expenses resulting from a violation of the foregoing by itself or its representatives.
5.6OFAC. 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. Customer 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. Customer hereby agrees to defend, indemnify and hold Compass 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.
- 6 LIMITATIONS OF LIABILITY
6.1Force Majeure. Compass shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any Force Majeure Event. The time for performance shall be extended for a period equivalent to the delay resulting from the Force Majeure Event. If, by reason of a Force Majeure Event, Compass’ supply of 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 in its sole discretion so long as Customer receives a return of a portion of the Purchase Price for any Hardware not delivered as a result of such allocation. If by reason of a Force Majeure Event, the cost of Hardware exceeds the Purchase Price, Compass shall have the right, at its option, to terminate such transaction without liability to Customer; provided that upon termination pursuant to this Section 6.1, Compass shall refund the entire Purchase Price to Customer for any Hardware not delivered. Notwithstanding the foregoing, Compass has the right to terminate or suspend this Agreement in the event of a Force Majeure Event that prevents it from performing hereunder or if Compass reasonably determines that performing is impractical or will result in any failure to comply with applicable law, regulation, order or requirement. Notwithstanding anything to the contrary, a Force Majeure Event shall not provide means to delay any payment of the Purchase Price by Customer.
6.2WARRANTY DISCLAIMER. Compass represents and warrants that (i) the Hardware shall be in good working order when the same is delivered to the Customer and (ii) Compass and/or the seller of the Hardware is able to deliver good and marketable title to the Hardware to the Customer. Except as provided above, Customer hereby acknowledges and agrees that Compass makes no additional representation or warranty with respect to the condition of the Hardware. THE HARDWARE IS SOLD “AS IS” AND “WITH ALL FAULTS” AND COMPASS EXPRESSLY DISCLAIMS ALL AND MAKES NO WARRANTIES WITH RESPECT TO ANY HARDWARE AND/OR SERVICES PROVIDED HEREUNDER, EXCEPT AS PROVIDED HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE HARDWARE DOES NOT GUARANTEE ANY CRYPTOCURRENCY MINING TIME, AND COMPASS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CRYPTOCURRENCY MINING TIME LOSS OR MINING REVENUE LOSS THAT MAY BE CAUSED BY DOWNTIME OF ANY PART OR COMPONENT OF THE HARDWARE. COMPASS DOES NOT WARRANT THAT THE HARDWARE WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS OR THAT THE HARDWARE WILL BE UNINTERRUPTED, OR ERROR FREE.
6.3Limitation of Liability. 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL COMPASS’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE PAYMENTS ACTUALLY RECEIVED BY COMPASS FROM CUSTOMER FOR THE APPLICABLE HARDWARE FROM, OR IN RELATION TO, WHICH THE LIABILITY AROSE.
6.4Inspections and Returns. The Hardware may be covered under warranty by the Manufacturer. The Customer shall return or undergo the warranty process with the Manufacturer at Customer’s sole expense, and follow such Manufacturer’s return/replacement/repair policy with respect to any such defective Hardware. Customer acknowledges and agrees that, in the event Customer seeks any type of refund, replacement, and/or repair, Customer shall seek such refund, replacement, and/or repair directly from the Manufacturer. Compass shall not be under any obligation to replace/return the defective Hardware or deal with Manufacturer with respect to any such defective Hardware.
6.5Idemnification by Compass. Compass covenants and agrees to indemnify and hold harmless Customer from any and all costs, expenses, losses, damages and liabilities incurred or suffered, directly or indirectly, by Customer (including, without limitation, reasonable legal fees and costs) resulting from any third party claim alleging a breach of, or misstatement in, any one or more of the representations and warranties of Compass made in or pursuant to this Agreement.
6.6Idemnification by Customer. Customer covenants and agrees to indemnify and hold harmless Compass and its officers, directors, stockholders, employees, agents, representatives, advisors and each of their successors and assigns (each a “Compass Indemnified Party”) from any and all damages, suits, claims, judgments, liabilities, losses, fees, costs, or expenses of any kind, including legal fees, incurred or suffered, directly or indirectly, by any Compass Indemnified Party whatsoever arising out of, attributable to or incidental to: (a) a 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 costs, taxes, customs, duties, tariffs, and the like arising from the transactions set forth in this the Agreement, (c) any act or omission of the Customer, (d) ownership, operation or use of the Hardware, (e) Compass’ violation of the Agreements with the financing party and/or hosting facility, (f) Customer’s entering into this Agreement, (g) the negligence or intentional misconduct of Customer, or any of its agents, in connection with this Agreement, the Hosting Services Agreement or any agreement entered into by Compass in connection herewith or therewith, and (h) any conduct, activity, or action by Customer or any person or entity acting on its behalf, or at its request, which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity.
- 7 CONFIDENTIALITY
7.1General. 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, disclose, or 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 those persons 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.
7.2Return 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.
7.3Privacy. Compass warrants and represents that, Compass shall comply with all applicable privacy laws throughout the Term, and will take all reasonable steps within Compass’ power to ensure that Compass’ employees, contractors and other customers comply with all applicable privacy laws.
7.4Compass 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’ data will remain with and be the exclusive property of Compass.
7.5Government Inquiries and Investigations. Compass may cooperate with any government or legal investigation regarding any aspect of the Hardware purchased herein or any Hosting Services provided to Customer, which may include producing identifying information of Customer.
- 8 DISPUTES
8.1Mediation and Binding Arbitration. To the fullest extent permitted by law, the parties hereto 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 pursuant to Section 10.4.
8.2Class Action Waiver. Any dispute-resolution proceeding must be brought in the Parties’ individual capacities, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. Unless the Parties later otherwise agree, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. 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.
- 9 DEFINITIONS
9.1 “Business Day” means any day other than Saturday, Sunday, or U.S. federal holiday.
9.2 “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.
9.3 “Delivery Date” refers to the estimated date at which the Hardware is scheduled to be delivered to the Customer or the hosting location that the Customer instructs Compass to arrange the Hardware to be shipped.
9.4 “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, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, terrorist act, accident, fire, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, inclement weather, health pandemic or epidemic, national, local or regional emergency, 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.
9.5 “Hardware” refers refers to the cryptocurrency mining hardware belonging to the Customer and specified in the Order Summary Page.
9.6 “Hosting Facility” or “Hosting Partner” means a data center owned, leased, operated or reserved by Compass or Compass partners through the Site.
9.7 “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 of Hardware to achieve the Service Level (i.e., standard fixes, basic repairs or Hardware resets), and support from Compass Mining Concierge Team.
9.8 “Losses” means all damages, judgments, liabilities, losses and expenses, including without limitation, attorney’s fees.
9.9 “Manufacturer” means the party that manufactures the Equipment as may be reflected in a Purchase Order.
9.10 “Purchase Order`"` means a written purchase order issued by Compass to the Customer for the Hardware.
9.11 “Purchase Price” means the total purchase price for the Hardware as reflected in the Purchase Order, including purchase price, import duties, tariffs, duties, shipping and insurance costs.
- 10 GENERAL PROVISIONS
10.1Captions 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.
10.2Consent to Electronic Business.. Because Compass operates online, it is necessary for Customer to consent to transact business with Compass online and electronically. As part of doing business with Compass, therefore, we also need Customer to consent to our giving you certain disclosures electronically, either via the Compass website or to the email address you provide to us. By entering into this Agreement, Customer consents to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to Customer’s or Compass’ rights, obligations, or services under this Agreement (each, a “Disclosure”). You will keep us informed of any change in your email or home address so that you can continue to receive all Disclosures in a timely fashion. If Customer’s registered email address changes, you must notify us immediately of the change. Customer also agrees to update your registered residence address and contact information on the Compass website if they change. Customer’s decision to do business with Compass electronically is made completely voluntarily.
10.3Entire Agreement. This Agreement, including any Purchase Order(s) certificate, 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. 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 amend, modify or revise the terms of this Agreement by updating these terms and by providing notice to Customer of that change via the Compass Website and/or by email and unless Customer objects in writing within 5 days, Customer will be deemed to have agreed to any such modified, amended or revised terms in this Agreement.
10.4Governing 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. Subject to Section 8, the jurisdiction and venue is exclusively to the courts within the State of Delaware and Customer irrevocably waives any objection to such jurisdiction and venue.
10.5Injunctive 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.
10.6No 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 10.6 will be void. Compass may assign this Agreement without the Customer’s consent 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.
10.7Notice. 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.
10.8Relationship 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.
10.9Survival. 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, the following sections: Payment Terms and Taxes (Section 0), Representations and Warranties (Section 0), Limitations of Liability (Section 0), Confidentiality (Section 0), Disputes (Section 8), General Provisions (Section 0).
10.10Waivers. 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.
10.11Liquidated Damages Not Penalty. It is expressly agreed that any liquidated damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith for such specific liquidated damages and having agreed that the amount of such liquidated damages is reasonable in light of the anticipated harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or non-feasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of such liquidated damages.
10.12No 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.
10.13Counterparts. This Agreement may be executed in any manner of counterparts, all of which shall constitute in any number of counterparts, all of which shall constitute one and the same instrument, and any Party hereto may execute this Agreement, by signing and delivering one or more counterparts. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed or electronically agreed, and that any electronic signatures or agreements appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.