1. Term of agreement

1.1 The term of this agreement shall be for the period set out in Schedule 3. If no term is stated, then the term of this agreement shall be for a minimum period of one (3) calendar years from the date of the agreement.

1.2 Upon expiry of the term, the contract shall resume on a holding-over basis and shall be terminable by either party giving the other notice in writing no less than 1 month prior to the proposed termination date.

 

2. Scope of appointment

2.1 The Owner appoints the Provider as its manager to license the use of the Asset for the purpose of earning the Owner a commercial return.

2.2 In this respect, the Provider agrees to the following:

a To take reasonable steps towards finding a suitable service vendor that will facilitate the licensing of computing power.

b To take reasonable steps to collect license fees (“license fees”) as may from time to time be paid by the relevant vendor to the Provider.

c To keep and maintain insurance over the indemnity value of the Asset on those terms set out in Schedule 5.

d To take reasonable steps to maintain and service the Asset to ensure that it remains in reasonable working order.

e To attend to any technical faults that may arise in relation to the Asset – subject to the Provider’s customary charges.

2.3 The parties acknowledge that the Provider is only a manager of the Asset and will not be liable for any costs or other amounts by reason of its management and control of the Asset. All outgoings, repairs, maintenance, and other amounts incurred during the Provider’s

management shall be the Owner’s responsibility.

 

3. Fees and charges

3.1 Unless otherwise stipulated, the amounts are denominated in New Zealand Dollars (NZD) and are expressed exclusive of GST.

3.2 The fees and charges associated with the Provider’s service delivery are set out in the attached Fee Schedule. The fees and charges include the following:

a: Agreed service fees set out in Schedule 4.

b: Those fees set out in the Schedule of Fees.

c: Maintenance and service charges. (e.g. but not limited to insurance, electricity, internet, commercial outgoings, etc)

d: Repair charges.

e: Disbursements and out-of-pocket expenses (for example, where parts are required following a repair, or upon software upgrades).

f: Any other fees in respect of any service or product that falls outside of the scope of appointment set out in clause 2 above in such amount as may be agreed by the parties.

g: Any other amounts that the Owner may owe to the Provider that may arise from the terms of this agreement.

Such fees and charges shall cumulatively be referred to as “charges”

3.3 The Provider shall be entitled to vary its charges from time to time and where such charges are varied, the Provider shall give no less than one calendar month’s notice.

3.4 The Provider shall be entitled to deduct its charges from those funds that the Provider may receive and hold on behalf of the Owner from time to time. The Owner hereby irrevocably authorizes the Provider to make such a deduction.

 

4. Remittance particulars

4.1 Unless specified otherwise, all license monies received by the Provider shall be disbursed to the Owner’s nominated account set out in Schedule 4 on a monthly basis after deducting the following:

a: The Provider’s charges.

b: All costs associated with the remittance, including but not limited to bank or intermediary, exchange fees, commission, or other charges.

4.2 Remittance shall be deemed to take effect upon a time as set out in Schedule 5 and such funds having been deducted from the Provider’s account. In this respect:

a: The Provider takes no responsibility with regard to any market fluctuations in currency markets, or if payment is remitted in digital currency, in the digital currency market;

b: The Provider shall be entitled to rely on the information set out in this agreement as the Owner’s account. The Provider shall not be obligated to take steps to ensure the accuracy or currency of the account. The Provider shall not be obligated to verify the account prior to making any remittance.

 

5. Risk

5.1 The Provider’s responsibility for the Asset extends only insofar as permitted under the terms of this agreement and the indemnities set out in the Provider’s insurance policy. All other risks associated with the Assets belong solely to the Owner, which includes but are not limited to the following:

a: Any exclusions set out in the Provider’s insurance policy set out in Schedule 6.

b: Wear and tear of the Assets arising from their usage and operation and the general passage of time.

c: The rate of wear and tear of the Assets for whatever reason, whether it relates to the manner in which the Assets are used or the conditions in which it is stored.

d: Any manufacturing defects relating to the Assets.

5.2 The Owner is encouraged to obtain their own indemnity insurance with respect to matters that fall outside of the scope of the Provider’s insurance.

 

6. Repairs and maintenance

6.1 The Owner acknowledges that the Assets require ongoing maintenance. In addition to the service fee, the Owner agrees to an additional charge set out in the Schedule of Fees.

6.2 The Owner shall be responsible for the costs associated with the repair of the Assets. In this regard, the parties agree as follows:

a: If the Asset requires repair, the Provider shall use reasonable endeavors to identify the issue.

b: If the issue is repairable and the Provider is able to carry out the repair, the Provider shall have the discretion to carry out the repair if the cost of repair shall not exceed the sum set out in Schedule 7. If the sum exceeds this amount, the Provider shall first obtain the Owner’s consent prior to carrying out the repairs.

c: The Provider can at its absolute discretion swap the Asset or a component of the Asset for another of similar specification until it is repaired. In such case, the Provider does not take responsibility for defects that may occur as a result of such a swap.

d: If the Provider is unable to carry out the repairs and the Provider has given notice to the Owner of the same, then the Owner shall notify the Provider either to:

i. Have the Asset repaired by a technician at the cost of the Owner;

ii. Terminate this agreement whereupon clause 6 below shall apply.

6.3 The Owner acknowledges that there is risk inherent in the process of repair, and as such, the parties agree as follows:

a: There will be a charge associated with inspecting and identifying the issue, irrespective of whether the Provider or another technician carries out the repair;

b: The scope of obligation in repair work is only that the best endeavors will be taken to identify and remedy the issue. The Owner acknowledges that the Assets are complex machines and that apparent issues may not be resolvable even if steps are taken to

remedy the issue.

c: The costs of repair remain payable irrespective of whether the issue is resolved or otherwise.

d: The Provider takes no responsibility to disburse any commercial return that is lost during the period in which the asset or part thereof is in repair.

 

7. Termination of agreement

7.1 If the term of this agreement has lapsed, then the Owner may terminate this agreement by giving the Provider notice in writing no less than 1 month prior to the proposed termination date.

7.2 The Owner may terminate this agreement prior to the lapse of the agreed period, provided however that the following shall apply:

a: The Owner is not in default of any obligations, including payment obligations, as set out under the terms of this agreement.

b: All charges that will have been received from the proposed termination date to the end-term date shall have been paid.

7.3 The Provider may terminate this agreement at any time by providing the Owner notice in writing no less than 7 days.

7.4 The Owner shall be responsible to uplift the Assets from the Provider’s premises by the termination date.

7.5 In lieu of the uplift set out in clause 7.4 above:

a: The Owner may sell the Assets to the Provider at such price and on such terms that the parties may agree.

b: The parties may agree to appoint the Provider as the Owner’s sale agent whereupon the Provider will separate the Assets into their component parts to coordinate its resale.

The fees charged by the Provider and terms of such arrangement shall be subject to the parties’ agreement.

7.6 If no alternative arrangements are made and the Owner has not removed the Assets from the Provider’s premises by the termination date, then ownership of the Assets shall be forfeited to the Owner to the Provider at the Provider’s election, without compensation to the Owner. If the Provider does not elect to the forfeiture, then the Provider shall be entitled to dispose of the Assets and the costs of disposal shall be recoverable as a liquidated debt owing by the Owner

to the Provider.

 

8. Transfers and assignments

8.1 The Owner may transfer or assign their Asset to any other person, provided, however, that prior to transfer or assignment:

a: The Owner seeks the prior written consent of the Provider, such consent not to be unreasonably withheld.

b: The charges are paid up to date and there are no arrears as of the proposed date of transfer or assignment.

c: The Owner causes the intended transferee or assignee to enter into a deed of covenant binding the transferee or assignee to the terms of this agreement. Such a deed is to be prepared by the Provider at the cost of the Owner.

d: The Owner paying the Provider for its reasonable charges and expenses associated with attending to the transfer.

 

9. Acknowledgements and disclaimers

Disclaimer – Commercial returns

 

9.1 The Provider makes no warranties or representations and hereby disclaims any such warranties and representations with respect to the amount or frequency of license fees receivable. In this respect:

a: The Provider is a hosting service provider only and, in this respect, is not a financial service provider (as that term is defined in the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ) and is not the provider of a financial product or service (as those terms are defined in the Financial Markets Conduct Act 2013 (NZ).

b: The license fees are wholly dependent on the level of uptake, the amount of demand, the prevailing prices at the relevant times, and the unique requirements of the end-users.

c: The Provider shall not be responsible for any losses or damages that the Owner may

suffer relating to any period that the Asset is not being licensed, and as a result, is not receiving license fees.

Disclaimer – Continuity of service

9.2 The Provider makes no warranties or representations and hereby disclaims any such warranties and representations with respect to the degree of uptake and the duration of any license. In this respect:

a: The operation of the Asset is entirely dependent on the continuous supply of electricity and telecommunication services. Aspects of these are outside of the Provider’s control.

b: The Provider will take reasonable steps to promptly resume the operation of the Asset but will not be responsible for any losses or damages suffered by the Owner resulting from any interruption in such services.

Disclaimer – Duration of repairs or period of redundancy

9.3 The Provider makes no warranties or representations and hereby disclaims any such warranties and representations with respect to the duration of any works required to be carried out on the Asset. This includes but is not limited to upgrades or repairs to the Asset. These

works are contingent on the availability of different computer components. The Provider shall not be responsible with respect to any losses or damages that the Owner may suffer resulting from the unavailability or otherwise that may render impose a redundancy period upon the Asset.

Disclaimer – Owner tax obligations

9.4 The Owners are required to comply with their own tax obligations of their respective tax jurisdictions. The Provider will not be responsible for providing advice or making any deductions

with respect to any tax obligation that the Owner may have.

Other general disclaimers 9.5 The Provider shall be entitled to rely on all communications from the usual email address of the Owner as the Owner’s legitimate communication. The Provider shall not be obligated to verify the bona fides of the Owner’s communication.

9.6 The Owner will indemnify the Provider in respect of all costs, damages, losses, and expenses suffered by the Provider arising from its performance of this agreement unless such costs, damages, and losses or expenses resulted from the Provider’s gross negligence.

9.7 The Provider shall not be liable for any failure to perform any of the terms or conditions of this agreement or for any delay in performance or loss or damage of any nature and however caused or arising where such failure, delay, loss, or damage arises from any cause beyond the

reasonable control of the Provider.

9.8 To the fullest extent permitted by law, the Provider shall not be liable in respect of any consequential losses of any nature suffered by the Owner, in respect of any matter arising from this agreement.

9.9 The Provider’s liability under this agreement shall be limited to the lesser of the following: 

a: The direct demonstrated losses of the Owner less deduction for mitigation of losses;

b: The sum of NZD$1,000.00.

 

10. Security and costs

10.1 The Owner shall pay the Provider costs, including collection costs and legal costs on a solicitor-client basis, incurred in relation to any steps taken by the Provider to enforce the terms of this agreement against the Owner.

10.2 As security for all obligations that the Owner may owe to the Provider from time to time whether, in relation to this agreement or any other agreements between the parties, the Owner hereby

grants the Provider a security interest under the Personal Property Securities Act 1999 (NZ) (PPSA) in the Asset.

10.3 The Owner will provide the Provider on request with all information necessary for the registration of the Provider’s security interest in terms of the PPSA.

10.4 To the extent that part 9 of the PPSA applies to the enforcement of this agreement, the Owner waives any rights that it may have under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 148 of the PPSA in any enforcement.

11. Governing law and jurisdiction

11.1 The law of New Zealand applies to this agreement. The courts of New Zealand shall have exclusive jurisdiction in relation to any matters or issues arising from this agreement.

12. Other terms

12.1 Legislative references: This document's references to legislation and regulations may be found at www.legislation.govt.nz.

12.2 Severability: If any term of this agreement is deemed to be invalid, illegal, or unenforceable, whether by court order or otherwise, such term or terms shall be deemed to have been severed from this agreement and the rest of the agreement shall remain effective and enforceable.

12.3 Headings: Headings used in this agreement are used for guidance only and do not form part of this agreement.

12.4 Counterparts: This agreement may be executed in two or more counterparts, each of that shall be deemed an original, but all of which together shall constitute one and the same instrument.

12.5 Electronic signatures: Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with s 226 of the Contract and Commercial Law Act 2017 (NZ) or any other applicable provisions of that Act or any Regulations referred to in that

Act.