Revolution Mining Hosting Service Agreement
This is an agreement between Revolution Mining ("Revolution Mining," "we," "us," or "our") and the customer identified on the ordering documentation ("Customer," "you," or "your"), which governs your access to and use of the Hosting Service (as defined below). This agreement, called the Revolution Mining Hosting Service Agreement, becomes effective when you submit your order ("Effective Date") and may be updated from time to time, with the most recent version available at https://revolutionmining.io/hosting-agreement. Customer represents to Revolution Mining that they are lawfully able to enter into contracts (e.g., not a minor) and, if entering into this Agreement for an entity, that the individual entering into this Agreement on behalf of Customer has legal authority to bind that entity. Certain capitalized terms used in this Agreement are defined in Section 14.
1.1 Hosting Arrangement Revolution Mining will host the Customer Hardware at an approved Hosting Facility, which is referred to as the "Hosting Service." The Hosting Service will be provided initially at the Hosting Facility or Hosting Facilities specified in the Service Order. As part of the Hosting Service, Revolution Mining will provide shelf and/or rack space, adequate electrical capacity at the required voltage and wattage, electricity provision, monitoring and services (as described in section 3.2) of Customer Hardware to achieve the Service Level, and support from the Revolution Mining Concierge Team and Operations Team, as applicable. Revolution Mining reserves the right to switch any Hosting Facility to another facility if it deems it reasonable under the circumstances. The Hosting Service may be provided directly by Revolution Mining or through agents, vendors, and third parties. The Customer acknowledges that Revolution Mining may obtain products, services, and facilities from, and subcontract the provision of the Hosting Service to, third-party providers and subcontractors, including Hosting Providers.
1.2 Service Level Revolution Mining will use commercially reasonable efforts to make the Hosting Service available to the Customer 95% of the time in each monthly period (the "Service Level"), except during Hosting Facility or associated infrastructure maintenance, any Customer Hardware failure, or Force Majeure Events. Revolution Mining does not guarantee uninterrupted Hosting Service and is not responsible for planned or unplanned outages or power shortages that are outside of its control. Revolution Mining does not guarantee the supply of electricity during each season or peak hours of the day, and there may be voluntary or involuntary downtime, curtailment by Revolution Mining, the Hosting Facility, or the Hosting Facility's energy provider, or outages or shortages of power. Revolution Mining will not be held responsible for the consequences of such outages, and they will not be included in the Service Level commitment, except as expressly stated in this agreement. However, the Customer acknowledges that Revolution Mining and the Hosting Facility participate in various Demand Response/Load Resource Participation Programs ("LRP Programs") designed to maintain the integrity of the local grid system and allow for cost savings that can be passed on to Revolution Mining's customers. Accordingly, the LRP Programs provide the local grid operator with the capability to shut off the power load serving Revolution Mining's customers in response to load situations.
1.3 Service Order The Customer acknowledges that certain Hosting Service terms are outlined in the Service Order, which is considered agreed by the Customer through the checkout process on the Revolution Mining website or through the duly executed/acknowledged copy of this Agreement and an accompanying Service Order by the authorized representative of each party.
CUSTOMER HARDWARE AND DELIVERY
2.1 Delivery and Installation of Customer Hardware: The Service Order(s) attached or incorporated by reference shall reflect any costs associated with the installation, mounting, and unmounting of Customer Hardware, as well as any tariffs, taxes, shipping costs, or other expenses associated with shipping, importing, exporting, and transporting Customer Hardware to the Hosting Facility. Revolution Mining or its Hosting Provider may inspect the Customer Hardware to determine if it is suitable for hosting and reserves the right to accept or reject any Customer Hardware in its sole discretion.
2.2 Operation and Start Date: Revolution Mining will use commercially reasonable efforts to begin operating the Customer Hardware on the scheduled Hosting Service Commencement Date stated in the Service Order. However, Revolution Mining will not be responsible for any delay in operation of Customer Hardware for any reason, including but not limited to delayed receipt of Customer Hardware, Force Majeure Events, lack of available rack space, Hosting Facility delays, Hosting Facility electrical or network connectivity problems, or loss of power due to the Transmission/Distribution network.
2.3 Serial Numbers: Upon request by the Customer, Revolution Mining shall provide the serial number for each machine included in the Customer Hardware.
HOSTING FACILITY MAINTENANCE AND CUSTOMER HARDWARE REPAIRS
3.1 Facility Maintenance. Revolution Mining, its Hosting Providers, and Hosting Facility operators are authorized to perform maintenance and necessary actions on the Hosting Facility and network as deemed necessary or desirable by Revolution Mining or its agents. Customer acknowledges that such maintenance may temporarily make the network inaccessible or cause temporary downtime or unavailability of Customer Hardware. Revolution Mining and its Hosting Providers will use commercially reasonable efforts to conduct maintenance to avoid or minimize unavailability. If scheduled maintenance is expected to affect the availability of Hosting Service, Revolution Mining may give Customer notice by email prior to conducting such Maintenance, identifying the estimated time and anticipated duration.
3.2 Hardware Maintenance and Repair. Revolution Mining, its Hosting Providers, and Hosting Facility operators are authorized to perform maintenance and necessary actions with respect to Customer Hardware according to Revolution Mining's current Fee Schedule. If the repair cost involves parts and labor that cannot be absorbed by Revolution Mining, the Customer will be notified of the estimated cost and estimated timeline for Customer Hardware repairs to be completed. Revolution Mining will make reasonable efforts to repair Customer Hardware on-site, but may require Customer Hardware to be shipped to the manufacturer or a third-party for critical repairs. Revolution Mining reserves the right to undertake the most cost-efficient option for any repair. If the Customer Hardware is sent to the manufacturer for repair, it may be fully covered under a standard manufacturer warranty, but shipping costs will be paid at the Customer's expense. If the Customer disagrees with the repair options or costs, or the Customer Hardware is deemed unrepairable by the third-party service provider or manufacturer, the Customer has the right to cancel the Agreement and have its Customer Hardware shipped to it at its expense. If Customer does not respond to repair options provided by Revolution Mining within fifteen (15) days, Revolution Mining reserves the right to cancel the Agreement. If the Agreement is cancelled pursuant to this section, Customer shall pay a termination fee equal to the total of the Hosting Service Fee owing for the remainder of the term of the applicable Service Order.
3.3 Relocation. Revolution Mining or Hosting Provider may relocate Customer Hardware within the Facility or to another facility upon prior written notice to Customer. The site of relocation must provide reasonably comparable environmental conditions for Customer Hardware. If Revolution Mining or Hosting Provider needs to relocate Customer Hardware to another Hosting Facility, Revolution Mining shall provide Customer ten (10) days' prior written notice, and Customer will have five (5) days to approve. If Customer does not approve the relocation within the established timeframe, it shall be deemed acceptance of the relocation to another Hosting Facility. If Customer objects to the relocation during the 5-day period, the parties shall work together in good faith to resolve the objection as quickly as possible, which may include returning the Customer Hardware to Customer at Customer's expense, and the Agreement will be deemed terminated with Customer owing the Termination Fee (as set forth below). If the Customer Hardware is relocated according to this Section, the cost of relocating the Customer Hardware shall be borne solely by Revolution Mining and/or the Hosting Facility provider.
3.4 Emergency Relocation. In the event of an emergency, Revolution Mining and/or Hosting Facility may rearrange, remove, or relocate Customer Hardware without any liability to Revolution Mining. In case of an emergency, Revolution Mining will provide reasonable notice to Customer, to the extent practicable, prior to rearranging, removing, or relocating the Customer Hardware.
HOSTING SERVICE FEE AND CUSTOMER RESPONSIBILITY
4.1 Mining Pool Selection: The customer is responsible for selecting and monitoring their chosen mining pool, and must inform Revolution Mining of any changes. The customer must comply with Revolution Mining's established process for making changes, including secondary verifications and multiple approvals. Any excess changes will incur a cost for labor, determined solely by Revolution Mining.
4.2 Private Key and Wallet Security: The customer is solely responsible for maintaining the software, telecommunications, internet access, and related equipment necessary to receive mining rewards. They must also ensure the security of their private keys and hold Revolution Mining harmless from any security breaches related to their hardware or the hosting facility.
4.3 Revolution Mining Account Security: The customer is responsible for maintaining the security of their Revolution Mining account passwords and must notify Revolution Mining if they suspect any unauthorized access or compromise. If Revolution Mining suspects any security violations related to the customer's account, they may suspend access to the account and customer hardware until resolved.
4.4 Maintenance: The customer may be required to purchase additional equipment, accessories, software, or hardware to comply with technical and fire safety norms at the hosting facility. If the customer does not approve of a Required Purchase within fifteen (15) days of notification, Revolution Mining may proceed with the most cost-effective option or terminate the agreement and return the customer's hardware at their expense.
4.5 Return of Customer Hardware: Upon expiration or termination of the agreement and payment in full, the customer must arrange for the return of their hardware at their expense. If they fail to provide retrieval instructions within 15 days, Revolution Mining may sell, retain, reconfigure, or remove the hardware at their discretion. Revolution Mining is not responsible for any damage or operation deficiency of customer hardware.
4.6 Interference: If the customer's hardware causes interference to other customers or equipment, Revolution Mining may relocate it at the customer's expense. If relocation fails to resolve the issue, Revolution Mining may terminate the agreement.
4.7 Modification and Overclocking: The customer must obtain prior approval before modifying or overclocking their hardware. If any modifications are made without approval, Revolution Mining may suspend services and invoice the customer for incremental costs, as determined by Revolution Mining. The customer will also be subject to a Non-Compliant Equipment fee equal to 25% of the Hosting Service Fees for each month deemed non-compliant.
5.1 The agreement between Revolution Mining and the Customer outlines the payment terms and taxes. The fees and charges for Hosting Service are calculated and billed monthly in advance. Unless disputed before the due date, fees are considered accurate. If the Hosting Facility experiences Service Level downtime during the billing period, the Customer will receive a prorated Service Level credit based on the amount of time the Hosting Facility was offline. If the Hosting Facility is offline for more than 36 hours in a monthly 30-day period, the applicable Service Level credit will be applied to the Projected Hosting Service Fee within thirty (30) days of the end of the month, subject to limitations.
5.2 Acceptable forms of payment include credit card, debit card, ACH, bank wire, and cryptocurrency. Revolution Mining may modify acceptable forms of payment at its discretion. If the Customer chooses to pay with cryptocurrency, Revolution Mining will invoice the Customer in U.S. Dollars. The Customer must deliver the designated cryptocurrency into Revolution Mining's digital wallet by the due date. If any refund of payments made in cryptocurrency is due, it will be calculated in U.S. Dollars.
5.3 The Customer must provide a deposit for the Projected Hosting Service Fee, which will be included in the initial payment. If the Customer fails to pay any Hosting Service Fee, Revolution Mining may use, apply or retain all or any portion of the Deposit for the payment of any amount due. If Revolution Mining uses or applies all or any portion of the Deposit, the Customer must deposit money with Revolution Mining sufficient to restore the Deposit to the full amount required by the agreement within ten (10) days of a written request. The Deposit will be returned within thirty (30) days after the expiration or termination of the agreement, unless Revolution Mining elects to apply it to unpaid Hosting Service Fee. The Deposit is not held in trust, does not bear interest, and is not prepayment for any Hosting Service Fee.
5.4 Time is of the essence for payment of each invoice. Revolution Mining may apply any Deposit or terminate the Hosting Service, reconfigure Customer Hardware, seize and dispose of or sell the Customer Hardware, turn off Customer Hardware, and/or disable Customer's access to accounts until all fees are paid in full for any overdue invoices. Revolution Mining reserves the right to charge a monthly late fee of $25 per unit of Customer Hardware until all payments are settled. If Revolution Mining redirects mining rewards to satisfy Customer's obligations, the Customer forfeits its rights to any cryptocurrency mining rewards resulting from the redirected hashpower. Revolution Mining may sell any collateral in which it has a security interest at a public or private sale. The company also reserves the right to charge a reconnection fee of $25 per unit of Customer Hardware if an invoice remains unpaid.
5.5 Revolution Mining reserves the right to modify its rates upon a change in operating costs, such as power rates, leasing rates, tax rates, and/or increased regulatory compliance costs, and will provide written notice of such modifications. The initial term of the agreement is stated in the Service Order, and the agreement will renew automatically upon expiration of the Initial Term, as specified in the Service Order.
TERM, TERMINATION, MODIFICATION AND SUSPENSION
6.1 The Agreement's initial term is stated in a Service Order attached or incorporated by reference (the "Initial Term"). Upon the Initial Term's expiration, the Agreement will automatically renew as specified in the Service Order, resulting in successive "Renewal Terms." Together with the Initial Term, these Renewal Terms form the "Term." In the absence of an Initial Term in a Service Order, the Hosting Services' Initial Term provided under this Agreement will begin on the Commencement Date and expire three (3) years later. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year Renewal Terms unless either party gives the other written notice of its intention to avoid the Renewal Term at least sixty (60) days before the Initial Term's or then-current Renewal Term's conclusion. Any revision, modification, or amendment of this Agreement's terms by Revolution Mining, as authorized in Section 15.2, will not modify the Term, which will remain as specified in your Service Order.
6.2.1. If you fail to make payments due under this Agreement or violate any of its covenants or provisions, Revolution Mining may terminate this Agreement for cause by providing written notice. The termination will be effective immediately if you enter bankruptcy, financial failure, or insolvency or sell your assets or equity to another entity without Revolution Mining's prior written approval.
6.2.2. If the Hosting Facility becomes unavailable for any reason, Revolution Mining may terminate this Agreement. The termination will be effective on the last day of the Hosting Facility's availability, and Revolution Mining will notify you promptly after becoming aware of the unavailability. Additionally, Revolution Mining may terminate or suspend part or all of this Agreement to ensure compliance with applicable laws, rules, regulations, administrative or judicial orders or decrees. Such termination or suspension may occur if you, a Hosting Facility, or any other third-party provider becomes a Blocked Person or other Specially Designated National, or if a Hosting Facility cannot provide services as contracted. Revolution Mining will make reasonable efforts to notify you of such termination or suspension via email or its website, and the parties will have no liability to each other for any damages resulting from the termination or suspension.
6.2.3. Revolution Mining may terminate this Agreement for convenience by providing written notice to you at least 30 days before the termination date.
6.2.4 To terminate the agreement, the Customer must have fully paid for the Customer Hardware purchased from Revolution Mining, with no outstanding payment plans or financings from Revolution Mining, Hosting Provider, or any third-party seller, and no remaining amounts owed under this Agreement.
6.3.1 In the event that Revolution Mining terminates or suspends this Agreement in accordance with Section 6.2.2, the following effects shall take place: Customer shall appoint Revolution Mining as its lawful limited attorney-in-fact, with irrevocable authority to (a) negotiate the liquidation or sale of Customer Hardware considering the circumstances of termination or suspension, (b) execute, sign, and deliver any documents necessary to complete the negotiated liquidation transaction, and (f) transfer the Customer Hardware to a third party in connection with the liquidation. Revolution Mining shall act on its appointment as Customer's limited attorney-in-fact by exercising commercially reasonable efforts and carrying out transactions in good faith following termination or suspension under this Agreement. Revolution Mining's appointment as Customer's limited attorney-in-fact and its accompanying rights and powers, coupled with an interest, shall be irrevocable and will survive and remain unaffected by Customer's subsequent death, incapacity, disability, dissolution, termination or bankruptcy, and will extend to Customer's legal representatives, successors, and assigns. Revolution Mining shall notify Customer, which may be done through email or the Revolution Mining website, of any transactions executed under Section 6.3.1.
6.3.2 If Revolution Mining terminates or expires this Agreement according to Section 6.2.2, Customer appoints Revolution Mining as its limited attorney-in-fact to negotiate the liquidation or sale of Customer Hardware, execute necessary instruments, and transfer the Customer Hardware to a third party. Revolution Mining has the authority to undertake any transactions in good faith and will notify Customer of any transaction through email or Revolution Mining's website.
Furthermore, upon termination or expiration of this Agreement, Customer must immediately pay all amounts owed, including amounts owed through any applicable Service Order. Revolution Mining will provide written notice of any owed funds. Failure to pay within five (5) days gives Revolution Mining the right to sell or retain possession of Customer Hardware, reconfigure and retain it for mining rewards, or remove and store it at Customer's expense. These rights may be granted to a third-party seller or Hosting Partner or assigned by Revolution Mining. Any of these measures can be used to recover owed funds and reasonable costs. Revolution Mining has all the rights and remedies of a secured party and can sell collateral in one or more sales for cash or credit. In addition, if Customer terminates the Agreement, they must pay a termination fee equal to the remaining Hosting Fee of the applicable Service Order(s) and any outstanding amounts owed for financed Customer Hardware.
7.1 Security Interest: By entering into this Agreement, Customer grants Revolution Mining a first priority security interest in all Customer Hardware and proceeds from the sale of such Customer Hardware to secure timely performance of this Agreement and Customer's obligations for the financing of such Customer Hardware. This includes payment of all invoices, charges, and costs, including Revolution Mining's contractual obligations and responsibilities for the purchase and hosting of the Customer Hardware. The parties acknowledge that a Revolution Mining Hosting Partner may also acquire a security interest in the Customer Hardware and place a lien on and encumber it. The Customer Hardware is and shall be deemed to be separate, identifiable, and movable property of the Customer that does not form part of or constitute a fixture to any hosting facility. Customer agrees to assist Revolution Mining and the Hosting Partner to perfect all security interests granted, including by signing any documents that Revolution Mining and/or the financing party deem reasonably necessary, including the filing of a UCC 1 financing statement. Revolution Mining may assign its rights in connection with the security interest.
7.1 Power of Attorney: Customer also appoints Revolution Mining as its lawful limited attorney-in-fact to grant such security interest to any Hosting Facility or third party and to sign Customer's name on any documents necessary to perfect or continue the perfection of the security interest granted herein. This appointment is irrevocable.
REPRESENTATIONS AND WARRANTIES
8.1 Legal Capacity and Obligations. Each party affirms that they have the legal capacity, authority, and power to execute and perform their obligations under this Agreement. Additionally, they assure that their performance will not contravene any applicable laws or necessitate consent from any third party, including the grant of attorney-in-fact rights.
8.2 Ownership and Rewards. The Customer guarantees that they have the clear title to their hardware, and that it is free of all security interests or liens, except for those granted to Revolution Mining or Hosting Provider as specified in this Agreement or with written consent from Revolution Mining. Moreover, the receipt of Mining Rewards will not infringe on any applicable laws or require any third-party consent.
8.3 Accuracy of Information. The Customer assures that all information provided for the purpose of establishing an account with Revolution Mining is truthful, current, accurate, and complete. They also guarantee to maintain and promptly update all such information and materials as necessary, and to provide any further information, documentation, or cooperation required by Revolution Mining to fulfill any know-your-customer or similar obligations.
8.4 FCPA and Anti-Bribery. Both parties acknowledge and agree that in performing their obligations under this Agreement, they will comply with all applicable anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act (FCPA) and the Organization for Economic Cooperation and Development Anti-Bribery Convention. The Customer represents and warrants that it understands that the FCPA prohibits giving anything of value to any government official, directly or indirectly, for the purpose of obtaining or retaining business or any improper advantage. The Customer further 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 promptly inform Revolution Mining if there is a 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 its regulations; and (iv) it agrees to indemnify, defend, and hold Revolution Mining harmless for damages and expenses resulting from a violation of the foregoing by itself or its representatives.
8.5 OFAC. The Parties acknowledge and agree that they may be required to comply with the Executive Order and the OFAC regulations. The Customer represents and warrants that 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 it is not engaging 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. The Customer agrees to defend, indemnify, and hold Revolution Mining harmless from and against any and all claims, damages, losses, risks, liabilities, and expenses arising from or related to any breach of the foregoing certification. Revolution Mining shall have no liability to the Customer whatsoever in the event that OFAC adds Blocked Persons to the List and Revolution Mining must take action to not transact business with such Blocked Persons.
8.6 Customer warrants and represents that it will not use the Hosting Service to develop, design, produce, manufacture, stockpile or use nuclear, chemical or biological weapons, weapons of mass destruction or missiles in countries 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. Furthermore, Customer shall not provide administrative access to the Hosting Service to any person or entity, including any natural person or government, located in or a national of any embargoed or highly restricted country under United States export regulations, which includes Cuba, Iran, and Sudan. Additionally, Customer confirms that it is not listed on the United States Department of Treasury, Office of Foreign Asset Controls' list of Specially Designated Nationals and Blocked Persons.
9 RISK FACTORS AND LIMITATIONS OF LIABILITY
9.1 Protocol Risk states that Revolution Mining does not have ownership or control over the software cryptographic protocols of any cryptocurrency networks that govern their operation. As a result, Revolution Mining cannot be held responsible for the operation of these underlying protocols and does not provide any guarantees regarding their security, functionality, or availability.
9.2 Risk of Network and Information Security: The Customer understands and acknowledges that the use of the internet and other communication networks may not be entirely secure and may result in unauthorized access to their wallets, computer systems, and stored data. Revolution Mining does not guarantee the confidentiality, security, authenticity, or non-corruption of information transmitted through the internet or stored on any network equipment. Revolution Mining also does not guarantee uninterrupted, error-free, or secure access to the Hosting Service. Revolution Mining will not be liable for any adverse consequences or losses incurred by the Customer's use of the Hosting Service or the internet. The Customer assumes full responsibility and risk for the use of information transmitted or obtained from Revolution Mining. Revolution Mining is not responsible for the accuracy or quality of information transmitted through its network or for any security incidents or breaches that may result in loss or corruption of data, unauthorized disclosure of data, or unavailability of data.
9.3 Hosting Facility Operational Risk. The Customer acknowledges and agrees that the Hosting Facility operations are exposed to different types of risks, including but not limited to, logistics-related risks, power supply risks, risks related to compliance with agreements and regulatory requirements, and construction delays. Furthermore, global supply chain disruptions have caused various issues for manufacturers, retailers, and companies across industries, leading to delays in sourcing and obtaining raw materials, shipping, and product availability. Additionally, labor shortages have created challenges for industries, such as manufacturing and transportation, which further intensifies supply chain disruptions. Due to these disruptions, Revolution Mining and/or the Hosting Facility may encounter increased costs, inventory shortages, and temporary shutdowns. Inflation in the costs of goods and services, including power supply costs, may also increase the risks.
9.4 No Warranties Provided. Revolution Mining does not provide any warranties or guarantees regarding the availability of the Hosting Service or the operating temperature of the data center. The Hosting Service and the data center provided by Revolution Mining are provided "as is" and "as available." Revolution Mining will provide mechanical cooling, and the data center is subject to swings in local temperature, wind, humidity, and other factors. Revolution Mining does not provide any warranty whatsoever, including but not limited to: (i) any warranty of merchantability; (ii) any warranty of fitness for a particular purpose; (iii) any warranty against interference; or (iv) any warranty regarding the price or liquidity of any digital asset. Revolution Mining does not warrant that (a) the Hosting Service will be available 24/7 or free from minor interruptions; (b) the Hosting Service will meet the customer's requirements other than as set out in a written agreement between the parties; or (c) the Hosting Service will provide any function not designated in a written agreement between the parties.
9.5 Limitation of Liability. Despite anything to the contrary in this Agreement, Revolution Mining will not be liable to Customer for (i) lost profits, loss of business or lost revenue to Customer during outages, customer hardware failures, force majeure events, or similar occurrences; (ii) any internet failure or outage; (iii) damages resulting from any actions or inactions of Customer or any third party; (iv) loss, interruption or use of data or loss of use of Customer hardware or any loss, deletion, or corruption of Customer’s data or files whatsoever; (v) damages resulting from Customer hardware or any third party equipment; (vi) any interruption or defects in Customer hardware functionality; or (vii) any consequential, indirect cost of cover, 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 Revolution Mining'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. Furthermore, in no event shall the aggregate liability of Revolution Mining to Customer, 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 Customer to Revolution Mining under this Agreement during the preceding twelve-month period. All references to parties in this paragraph shall include their respective subsidiaries, affiliates, directors, officers, employees, contractors, representatives, advisors, and agents.
Under this section, Customer agrees to indemnify and protect Revolution Mining and its officers, directors, employees, agents, representatives, advisors, and assigns ("Revolution Mining Indemnified Party") from all claims, demands, actions, suits, proceedings, losses, costs, or expenses of any kind, including legal fees, incurred or suffered by any Revolution Mining Indemnified Party resulting from:
(a) a breach or misstatement by the Customer in any representation, warranty, obligation, or covenant made in this Agreement;
(b) the Customer's failure to pay all costs, taxes, customs, duties, tariffs, and the like related to the transactions set forth in this Agreement;
(c) any act or omission by the Customer;
(d) ownership, operation, or use of the Customer Hardware;
(e) Revolution Mining's violation of agreements with any financing party or hosting provider;
(f) the Customer's entry into this Agreement;
(g) the negligence or intentional misconduct of the Customer or its agents in connection with this Agreement or any other agreement between the parties; and
(h) any unlawful or illegal conduct, activity, or action by the Customer or any person or entity acting on its behalf, or at its request, that violates state, federal, or common law, or the rights of any individual or entity.
9.7 Sole Remedy and Time Limitation for Actions. The only remedy available to the Customer for the performance or non-performance of this Agreement, except as expressly stated herein, shall be a refund of any fees paid to Revolution Mining for the relevant service month. Unless applicable law requires otherwise, any action against Revolution Mining related to this Agreement must be initiated within one year after the cause of the action arises.
9.8 Subrogation. The Customer agrees that, in the event of any loss or injury, including those resulting from Customer fault, they will exclusively seek recovery from their insurer, and waive all rights of recovery against Revolution Mining and its subsidiaries, affiliates, directors, officers, employees, contractors, representatives, advisors, and agents. The Customer will also obtain a waiver of subrogation for the benefit of Revolution Mining and its subsidiaries, affiliates, directors, officers, employees, contractors, representatives, advisors, and agents.
10.1 Confidential Information. Both parties acknowledge that in the course of performing their obligations under this Agreement, they may be exposed to or acquire Confidential Information of the other party. Each party agrees not to use, disclose or copy any Confidential Information except as necessary to fulfill its obligations under this Agreement. The parties agree to use commercially reasonable measures to protect the Confidential Information, and only to disclose it to those with a need to know or as expressly permitted under this Agreement.
10.2 Return of Confidential Information. Upon termination or expiration of this Agreement, or at the request of the other party, each party shall return or destroy and delete all Confidential Information and any copies in their possession or control.
10.3 Privacy. Throughout the term of this Agreement, Revolution Mining will comply with all applicable privacy laws and take reasonable steps to ensure that its employees, contractors, and other customers also comply with such laws.
10.4 Revolution Mining Proprietary Information. Except for the rights explicitly granted in this Agreement, Revolution Mining retains all rights, titles, and interests in its customer relationships, proprietary rights, and intellectual property rights in its data.
10.5 Government Enquiries and Investigations. Revolution Mining may cooperate with any government or legal investigation relating to the Hosting Service, which may include providing Customer's identifying information.
11.1 Use of Trademarks. Without the prior written consent of the other party in each case, 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. The consent of the other party must not be unreasonably withheld.
INSURANCE AND RISK OF LOSS
12.1 Requirements. Customer is responsible for ensuring that the Customer Hardware, all Customer equipment, and property are properly covered against all forms of damage. Customer must obtain and maintain commercially reasonable insurance to protect against all risks of physical loss or damage to the Customer Hardware or a Revolution Mining Protection Plan, if available. Revolution Mining must be named as a loss payee on such insurance policy(ies), and Customer must provide a certificate of insurance confirming this. If Customer chooses not to insure the Customer Hardware or obtain any offered Revolution Mining Protection Plan, Customer does so at its own risk and will indemnify, defend, and hold harmless Revolution Mining and Hosting Partner from any failure to insure. If Revolution Mining decides to move any Customer Hardware to a new Hosting Facility, Customer must update its insurance policies without undue delay to reflect any change in the Hosting Provider. Customer must provide any necessary assistance to enable Revolution Mining to ensure its compliance with any agreement between Customer and Hosting Provider. Customer acknowledges and agrees that this section is a material component of this Agreement.
13.1 Mediation and Arbitration. The parties agree to waive their rights to seek remedies in court, including a trial by jury. Any dispute arising out of or relating to this Agreement will be resolved in a confidential two-step dispute resolution procedure involving non-binding mediation and binding arbitration, under the Federal Arbitration Act, 9 U.S.C. § 1, et seq., or state law, whichever is applicable. The American Arbitration Association will oversee the mediation and arbitration under its then-current Commercial Arbitration Rules and Mediation Procedures. The parties understand that the arbitrator's award will be final and binding, and judgment may be entered on it in any court of competent jurisdiction. Both parties retain the right to seek temporary injunctive relief in a court of law. If the American Arbitration Association declines jurisdiction over a dispute, the parties will submit to Judicial-Arbitration-Mediation Services mediation and arbitration. If both organizations refuse jurisdiction, the parties may litigate in a court of competent jurisdiction.
13.2 Class Action Waiver. The parties agree to resolve any dispute in their individual capacities and waive any ability to maintain a Class Action. The arbitrator will not have the authority to combine similar claims or conduct a Class Action or make an award to any person or entity not party to the arbitration. Any claim that the Class Action Waiver is unenforceable may be determined by a court of competent jurisdiction, not an arbitrator. The parties understand they are foregoing their rights to litigate through a court, have a judge or jury decide their case, and be a party to a class or representative action, and elect to have any dispute resolved individually through arbitration.
14.1 “Business Day” refers to any day that is not a U.S. federal holiday, Saturday, or Sunday.
14.2 “Commencement Date” refers to the date when the Customer Hardware is scheduled to begin mining operations, as stated in the Service Order.
14.3 “Revolution Mining Concierge Team” refers to the customer and technical service team of Revolution Mining that is available to assist Customers with the Customer Hardware, Hosting Service, and achieving the Service Level.
14.4 “Revolution Mining Operations Team” refers to the customer and technical service team of Revolution Mining that is available to assist Customers with the Customer Hardware, Hosting Service, and achieving the Service Level if the Revolution Mining Concierge Team is unable to help.
14.5 “Revolution Mining Protection Plan” refers to the damage waiver and protection plan offered by Revolution Mining, which Customers may opt to purchase, and if they do, such terms and conditions will be attached to this Agreement as a separate addendum.
14.6 “Confidential Information” refers to the confidential or proprietary information of a party, such as business plans, strategies, forecasts, and projections, information about business structures, operations, systems, finances, assets, investments, investment strategies, software, and other technology systems, as well as personnel, customers, and suppliers. However, Confidential Information does not include information that: (i) the receiving party knew before receiving it directly or indirectly from the disclosing party or (ii) the receiving party learned (independently of disclosure by the disclosing party) directly or indirectly from a source that was not obligated to keep it confidential to the disclosing party, or (iii) becomes public or otherwise loses its confidential nature, except if this Agreement is breached by the receiving party, or (iv) is independently developed by the receiving party.
14.7 “Customer Hardware” refers to the cryptocurrency mining hardware owned by the Customer and specified in the Service Order.
14.8 “Force Majeure Event” refers to a failure or delay in performance, loss, or damage due to a force majeure condition, such as acts of God, acts of civil or military authority, war, labor strikes, embargo, terrorist acts, civil disturbances, fire, power failure, lightning, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, accidents, electrical storms, load reduction and curtailment, inclement weather, health pandemic or epidemic, national, local, or regional emergency, any law, order, decrees, regulation, seizure, enforcement actions, or other action of any governmental authority or agency, regulatory requirements, acts or omissions of a third-party owner or operator of a Hosting Facility, other acts or omissions of a third-party, acts of public enemies, inability to secure parts or materials, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, or other causes beyond a party’s reasonable control, whether or not similar to the foregoing, along with any planned service and maintenance needs.
14.9 “Hosting Facility” or “Hosting Provider” refers to a data center owned, leased, operated, or reserved by Revolution Mining or Revolution Mining partners through the Site.
14.10 “Losses” refer to all damages, judgments, liabilities, losses, and expenses, including attorney’s fees.
14.11 “Mining Rewards” refer to the digital asset, cryptocurrency, virtual currency, digital currency, or digital commodity (such as Bitcoin and Ethereum) produced by the proof-of-work cryptographic protocol of a computer network and generated by the Customer's use of the Customer Hardware.
14.12 “Projected Hosting Service Fee” refers to the total estimated monthly fees for the upcoming month for use
15.1 Headings: The headings and captions of each section in this Agreement are provided for convenience and are not considered part of this Agreement. They do not have any legal significance.
15.2 Entire Agreement: This Agreement, along with any other documents such as Service Orders, certificates, schedules, exhibits, or other documents delivered as part of this Agreement, is the only agreement between the parties and supersedes any previous agreements, whether written or oral, concerning the subject matter of this Agreement. There are no other verbal agreements, warranties, representations, undertakings, or agreements between the parties. Any conflicting warranties, terms, and/or conditions found in any purchase agreements, invoices, credit applications, purchase orders, or other documents between Revolution Mining and the Customer will be governed by the terms of this Agreement. Revolution Mining has the right to amend, modify, or revise the terms of this Agreement by updating the terms and notifying the Customer via the Revolution Mining website and/or email. The Customer's continued use of the Hosting Service will indicate their acceptance of any amended, modified, or revised terms of this Agreement. Revolution Mining may also amend, modify or revise the Fee Schedule at any time by making changes to the linked location where the Fee Schedule resides. This Agreement, as amended, modified, or revised, will apply to all transactions between the Customer and Revolution Mining, even if they were completed under a previous version of this Agreement.
15.3 Further Assurances: The Customer will sign any additional documents, organize meetings, pass resolutions, exercise their votes, and perform any other necessary acts to give full effect to this Agreement and all its provisions.
15.4 Force Majeure: Neither party will be responsible or liable for any delays or failures in performance due to a Force Majeure Event. The time for performance will be extended for a period equivalent to the delay resulting from the Force Majeure Event, except for the Customer's obligation to make payments under this Agreement. Revolution Mining and its Hosting Providers will not be liable for a Force Majeure Event. In the event of a Force Majeure Event, both parties will make a good faith effort to perform their obligations under this Agreement. However, Revolution Mining has the right to terminate or suspend this Agreement if a Force Majeure Event prevents it from providing the Services or if Revolution Mining reasonably determines that providing the Services is impractical or will result in non-compliance with applicable laws, regulations, orders, or requirements.
15.5 Governing Law: This Agreement and any claims related to it are governed by the laws of the State of Delaware, without regard to any conflict of law provisions or rules that would result in the application of the laws of any other jurisdiction. If the dispute resolution provisions must be enforced, or if it is necessary to provide injunctive relief, the exclusive jurisdiction and venue will be in the State and Federal courts located within the State of Delaware.
15.6 Injunctive Relief: The parties acknowledge that the Confidentiality provision of this Agreement is reasonable in scope and duration and is not unduly restrictive. The Customer further acknowledges that a breach of any of the confidentiality obligations will cause irreparable harm to Revolution Mining, and that a remedy at law will be inadequate. Therefore, Revolution Mining will be entitled to seek all equitable relief, including but not limited to, temporary and permanent injunctive relief, without the need to post a bond. Revolution Mining may also seek any other remedy available under applicable law or any agreement between the parties. The award of damages to Revolution Mining does not preclude the court from ordering injunctive relief. Both damages and injunctive relief are appropriate remedies and are not alternative remedies.
15.7 No Assignment: The Customer will not assign or transfer this Agreement