Terms and Conditions for ASIC REPAIR Services
(b)These Terms are the only terms that govern the provision of repair services by Advanced Crypto Services, LLC ("Service Provider") to the person or legal entity that has registered an account via the Online Portal ("Customer"). As used in these Terms, (i) "our" and "us" and “we” means and refers to Advanced Crypto Services, LLC and its affiliates, successors and assigns; (ii) "you" and "your" means and refers to the person or legal entity that accesses the Online Portal and uses or subscribes for the Services; (iii) “Advanced Repair Review Notification” means the notice that you are provided and agree to prior to the commencement of Services, which describes the results of the initial inspection, the Services to be performed, and the associated costs; (iv) “Units” means the eligible Bitmain, MicroBT, Canaan, or other bitcoin miners, hash boards, control boards, or power supplies identified on the Sales Order pursuant to which you authorize us to perform the Services; and (v) “Online Portal” means the online Customer dashboard that is accessible at https://app.advancedcryptoservices.com/.
(c) Our written or electronic confirmation of your order (the "Sales Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Sales Order, these Terms shall govern, unless the Sales Order expressly states that the terms and conditions of the Sales Order shall control.
(d) These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
We are providing you with access to our Online Portal through which you may create Sales Orders for the Services, which shall detail the scope of work, including but not limited to the type of Services, the number and type of Units to be repaired, the price list for the Services, and any other relevant information. We will provide you with the repair services for the Units as described in the Sales Order (the "Services") in accordance with these Terms. Service Provider shall use reasonable efforts to meet any performance dates specified in the Sales Order, and any such dates shall be estimates only. The Services may be provided and billed for on (a) a per-Unit basis, and/or (b) Customer may elect to purchase a monthly recurring subscription for the Services, in which case pricing is tiered based on the number of Units for which the Services are required.
3. Scope and Availability of Services.
By placing an order for Services, you represent that you are the owner and/or have the authority to consent to an inspection and repair of the Units. We reserve the right to refuse to provide you with the Services if we determine that you are not the owner and/or the authorized user of the Units. You authorize us to perform the Services, including but not limited to repairs, technical support, and other services as described in the Sales Order, subject to these Terms. You expressly consent to inspection and/or diagnosis, and repair of the Units, and authorize us to repair and otherwise effect changes to the Units to the extent necessary to provide the Services and acknowledge and agree that such changes may be permanent and irreversible. You acknowledge that in performing the Services, we may use new, rebuilt, reconditioned or refurbished parts or components, and original or non-original parts. The Services are not provided as part of the original manufacturer’s warranty, unless noted otherwise in writing. If your Units are under any applicable manufacturer’s warranty (or other warranty), you acknowledge that the Services may void any such warranty. We reserve the right to cancel or refuse Services as we deem necessary in our sole discretion.
4. Customer's Acts or Omissions.
If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Upon receipt of any Unit for repair, we will conduct an initial visual inspection of miners and/or diagnosis of any individual components received to evaluate the condition and repair feasibility. In our sole discretion, we may decide whether to proceed with repair efforts. Should we determine that a Unit is not suitable for repair due to factors such as extensive damage or risk of further malfunction, or it becomes apparent that the time and materials required to complete the repair exceed reasonable expectations or initial estimates, then:
(a)we will cease provision of the Services and record the serial number of the applicable Unit before beginning repair activity;
(b)the Unit will be set aside pending further discussion with the Customer, after which, the parties may decide to continue with the Services, return the Units to Customer, or dispose of the Units. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing (“Change Order”). Service Provider shall provide a written estimate to Customer outlining (i) the time anticipated to implement the change; and (ii) any necessary adjustments to the prices and other charges for the Services arising from the Change Order; and
(c)we reserve the right to salvage any salvageable Unit components in order to obtain board level parts in lieu of charging for repair parts used in the Services.
6. Estimated Time for Performance.
We will use commercially reasonable efforts to complete all Services and have the Units serviced, packaged, and prepared for return shipment to you within a reasonable time, not to exceed ninety (90) business days of receipt or as otherwise agreed and specified in the Sales Order.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services and the rights granted to Customer under this Agreement, Customer shall pay the fees due for the Services within fifteen (15) days after the date of our invoice. Customer shall make all payments hereunder in US dollars by US Wire/ACH to the Service Provider's designated bank or by credit card via the Online Portal.
(b) In the event payments are not received by Service Provider on or before the due date, Service Provider may (i) charge interest on any such unpaid amounts at a rate of 1% per month from the date such payment was due until the date paid; and (ii) suspend performance of all Services, and hold all shipments, until payment has been made in full.
(c)Customer acknowledges that an advanced pre-payment may be required with respect to any Sales Order. The amount of such pre-payment shall be specified in our retainer invoice to you, and will be credited against our invoices. For clarity, any prepayment amounts are not considered as an escrow deposit and may be applied and used by Service Provider for operating purposes.
(d) We reserve the right to adjust the pricing of the Services in response to fluctuations in market demand, availability and cost of replacement parts, and changes in design by the manufacturer. In addition, we may review and adjust the pricing of Services on a quarterly or other periodic basis to reflect changes in operational costs, inflation, and other relevant economic factors.
Customer authorizes Service Provider to repair all Units that Customer delivers. Units that are successfully repaired or otherwise deemed beyond repair as set forth in an Advanced Repair Review Notification will be promptly picked up by Customer following completion of the Services. Units that remain in our facility after thirty (30) days will be assessed a late fee, which will be invoiced to Customer and must be paid in full prior to release of the Units (with any outstanding Services fees). Units that remain in our facility after sixty (60) days are considered abandoned and will be forfeited and become the sole property of Service Provider. In such an event, we may dispose of or otherwise utilize the abandoned property in our sole discretion in accordance with applicable provisions of law, including sale of the abandoned property, proceeds of which may be used to recoup administrative and repair costs. Unless otherwise required by law, all such replaced Units, parts, components, boards and equipment will become our property, and you waive all rights you may have under state or other laws to the replaced Units or repaired or replaced parts.
Customer is responsible for shipping the Units to and from our facility at the address specified in the Sales Order. Customer will prepare and palletize the Units for shipment to us, and Customer is responsible for providing adequate insurance for the Units during transit to and from our facility.
Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
11. Intellectual Property.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services shall be owned by Service Provider.
12. Confidential Information.
All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Confidential Information does not include information that is (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Services. Service Provider shall be entitled to injunctive relief for any violation of this Section.
13. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement, and any parts used in the provision of the Services shall be of good and functional quality. Service Provider’s warranties are limited to its scope of work completed and does not cover parts or aspects of Units that are not repaired.
(b) In the event that the Services fail to materially conform to the warranty set forth above (each such occurrence, a “Defect”), then Customer shall give written notice of any such Defect to Service Provider prior to the expiration of the applicable warranty period. Service Provider shall then remedy the Defect by correcting the Services as needed to address the Defect repair or re-perform such Services (or the defective part), or credit or refund the price of such Services at the pro rata contract rate.
(c) THE REMEDIES SET FORTH IN SECTION 13 SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
14. Disclaimer of Warranties.
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 13 ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
15. Limitation of Liability.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION GIVING RISE TO THE CLAIM.
16. Term and Termination.
The term of this Agreement shall be month-to-month as provided in the Sales Order for subscription accounts, or as otherwise agreed between the parties. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer (a) fails to pay any amount when due under this Agreement, (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum adequate to cover its business property and the Units.
No waiver by Service Provider of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Force Majeure.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's reasonable control.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
21. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
23. Submission to Jurisdiction.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Fort Worth and County of Tarrant, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Sales Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Certain provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement.