Exhibit 10.1
[****] Certain information in this exhibit
has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) would likely cause
competitive harm to the registrant if publicly disclosed.
SALES AND PURCHASE AGREEMENT
BETWEEN
BITMAINTECH PTE. LTD.
(“Bitmain”)
AND
Riot Blockchain, Inc
(“Purchaser”)
| 1. Definitions and Interpretations |
3 |
| 2. Sales of Product(s) |
5 |
| 3. Prices and Terms of Payment |
6 |
| 4. Shipping of Product(s) |
6 |
| 5. Customs |
7 |
| 6. Warranty |
8 |
| 7 Representations and Warranties |
9 |
| 8 Indemnification and Limitation of Liability |
10 |
| 9 Distribution |
11 |
| 10 Intellectual Property Rights |
11 |
| 11 Confidential Informaiton and Disclosure |
12 |
| 12 Term and Termination of this Agreement |
12 |
| 13 Contact Information |
13 |
| 14 Compliance with Laws and Regulations |
14 |
| 15 Force Majeure |
15 |
| 16 Entire Agreement and Amendment |
15 |
| 17 Assignment |
15 |
| 18 Severability |
16 |
| 19 Personal Data |
16 |
| 20 Conflict with the Terms and Conditions |
16 |
| 21 Governing Law and Dispute Resolution |
16 |
| 22 Waiver |
17 |
| 23 Counterparts and Electronic Signatures |
17 |
This agreement (this “Agreement”)
is made on 24 August 2020 by and between Bitmaintech Pte. Ltd. (“Bitmain”) (UEN: 201610324R), with its principal
place of business at 0 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx 0, #00-00/00, Xxxxxxxxx, 000000, and Riot Blockchain, Inc (the “Purchaser”)
with its principal place of business at 000 0xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000, XXX.
Bitmain and the Purchaser shall hereinafter collectively
be referred to as the “Parties,” and individually as a “Party.”
Whereas:
1.
Purchaser fully understands the market risks, the price-setting principles and the market
fluctuations relating to the Products sold under this Agreement.
2.
Purchaser has purchased Products through the website of Bitmain (i.e., xxxxx://xxxx.xxxxxxx.xxx/,
similarly hereinafter), and is generally familiar with the purchase order processes of Bitmain’s website.
3.
Based on the above consensus, the Purchaser is willing to purchase and Bitmain is willing
to supply cryptocurrency mining hardware and other equipment in accordance with the terms and conditions of this Agreement.
The Parties hereto agree as follows:
1.
Definitions and Interpretations
The following terms, as used herein, have the following meanings:
“Affiliate” means,
with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person; “Person” means any individual, corporation, partnership, limited partnership, proprietorship, association,
limited liability company, firm, trust, estate or other enterprise or entity; and “Control” means the power or authority,
whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by Contract or otherwise, provided that such power or authority shall conclusively be presumed
to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled
to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the
board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to
the foregoing.
“Applicable Law” means
any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal
force under any system of law, including, without limitation, local law, law of any other state or part thereof or international
law, and which creates or purports to create any requirement or rule that may affect, restrict, prohibit or expressly allow the
terms of this Agreement or any activity contemplated or carried out under this Agreement.
“Bank Account” means
the bank account information of Bitmain provided in Appendix A of this Agreement.
“Force Majeure” means
in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents
or hinders that Party from performing any obligation imposed upon that Party under this Agreement, including to the extent such
event or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist
activities, acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions,
quarantine restrictions, epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions and regulatory and administrative
or similar action or delays to take actions of any governmental authority.
“Insolvency Event” in the
context of the Purchaser means any of the following events:
| i) | a receiver, receiver and manager, judicial
manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over
all or any part of the assets, equipment or undertaking of the Purchaser; |
| ii) | if the Purchaser stops or suspends payments
to its creditors generally, is unable to or admits its inability to pay its debts as they fall due, seeks to enter into any composition
or other arrangement with its creditors, is declared or becomes bankrupt or insolvent or enters into liquidation; |
| iii) | a petition is presented, a proceeding is commenced,
an order is made or an effective resolution is passed or any other steps are taken by any person for the liquidation, winding up,
insolvency, judicial management, administration, reorganization, reconstruction, dissolution or bankruptcy of the Purchaser, otherwise
than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction; or |
| iv) | if any event, process or circumstance analogous
or having a substantially similar effect to any of the above, in any applicable jurisdiction, commences or exists. |
“Intellectual Property Rights”
means any and all intellectual property rights, including but not limited to those concerning inventions, patents, utility models,
registered designs and models, engineering or production materials, drawings, trademarks, service marks, domain names, applications
for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or business sensitive information and/or
technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.
“Order” means the Purchaser’s
request to Bitmain for certain Product(s) in accordance with this Agreement.
“Order Confirmation” means Bitmain’s
acceptance of the Order.
“Product(s)” means
the merchandise that Bitmain will provide to the Purchaser in accordance with this Agreement.
“Total Purchase Price”
means the aggregate amount payable by the Purchaser as set out in Appendix A of this Agreement.
“Warranty Period” means
the period of time that the Product(s) are covered by the warranty granted by Bitmain or its Affiliates in accordance with Clause
6 of this Agreement.
“Warranty Start Date” means the date on
which the Product(s) are delivered to the carrier. Interpretations:
| i) | Words importing the singular include the plural
and vice versa where the context so requires. |
| ii) | The headings in this Agreement are for convenience
only and shall not be taken into consideration in the interpretation or construction of this Agreement. |
| iii) | References to Clauses are references to Clauses of this Agreement. |
| iv) | Unless specifically stated otherwise, all references to days shall
mean calendar days. |
| v) | Any reference to a code, law, statute, statutory
provision, statutory instrument, order, regulation or other instrument of similar effect shall include any re-enactment or amendment
thereof for the time being in force. |
Bitmain
will provide the Product(s) set forth in Appendix A (attached hereto as part of this Agreement) to the Purchaser in accordance
with provisions of Clause 2, Clause 3, Clause 4, Clause 5 and Appendix A of this Agreement, and the Purchaser shall make payment
in accordance with the terms specified in this Agreement.
| 2.1. | Both Parties agree that the Product(s) shall
be sold in accordance with the following steps: |
| (i) | The Purchaser shall place the Order through
Bitmain’s website or through other methods accepted by Bitmain, and such Order shall constitute an irrevocable offer to purchase
specific Product(s) from Bitmain. |
| (ii) | After receiving the Order, Bitmain will send
an order receipt confirmation email to the Purchaser. The Purchaser’s Order will be open and valid for Bitmain to issue an
Order Confirmation for a period of twenty-four (24) hours after its placement, and prior to the expiration of such period, Bitmain
will have the right to cancel the Order at its sole discretion. |
| (iii) | The Purchaser’s Order shall be deemed
accepted by Bitmain upon Bitmain’s issuance of the Order Confirmation and the Purchaser shall pay the Total Purchase Price
in accordance with Appendix A of this Agreement. |
| (iv) | Upon receipt of the Total Purchase Price,
Bitmain will provide a payment receipt to the Purchaser. |
| (v) | Bitmain will send a shipping confirmation
to the Purchaser after it has delivered the Product(s) to the carrier. |
| 2.2. | Both Parties acknowledge and agree that the
order receipt confirmation shall not constitute nor be construed as Bitmain’s acceptance of the Purchaser’s Order,
but mere acknowledgement of the receipt of the Purchaser’s Order. |
| 2.3. | Both Parties acknowledge and agree that in
case of product unavailability, Bitmain shall have the right to cancel the Order after it has issued the order receipt confirmation
without any penalty or liability. |
| 2.4. | The Purchaser acknowledges and confirms that
the Order is irrevocable and cannot be cancelled by the Purchaser, and that the Product(s) ordered are neither returnable nor refundable.
All sums paid by the Purchaser to Bitmain shall not be subject to any abatement, set-off, claim, counterclaim, adjustment, reduction,
or defense for any reason except for non-shipment of the Products pursuant to Section 4.3. Payment of Total Purchase Price is not
refundable, save as otherwise mutually agreed by the Parties or Bitmain’s non-shipment of the Products pursuant to Section
4.3. |
| 3. | Prices and Terms of Payment |
| 3.1 | The Purchaser shall pay the Total Purchase
Price in accordance with Appendix A of this Agreement. |
| 3.2 | The Parties understand and agree that the
applicable prices of the Product(s) are inclusive of applicable bank transaction fees, export duties, but are exclusive of any
and all applicable import duties, taxes and governmental charges. The Purchaser shall pay or reimburse Bitmain for all taxes levied
on or assessed against the amounts payable hereunder. If any payment is subject to withholding, the Purchaser shall pay such additional
amounts as necessary, to ensure that Bitmain receives the full amount it would have received had payment not been subject to such
withholding. |
| 4.1 | The Purchaser must indicate place of delivery,
and Bitmain will ship the Product(s) to such designated place. If the Purchaser fails to provide Bitmain with the delivery place
or the delivery place provided by the Purchaser is a false address or does not exist, Bitmain may issue the Purchaser a notice
of self-pick-up (which shall specify the self- pick-up location) and ask the Purchaser to pick up the Products itself. The earliest
date for self-pick-up mentioned in the above notice shall be deemed as the delivery date. Bitmain shall be deemed to have completed
the delivery obligation under this Agreement when the Purchaser receives the above notice. The Purchaser shall pick up all the
Products within five (5) working days after receiving the notice from Bitmain. Otherwise, Bitmain is entitled to charge the Purchaser
the storage fee, warehousing charge and other fees according to the standard of USD 2/ unit / day. |
| 4.2 | Subject to the limitations stated in Appendix
A, the terms of delivery of the Product(s) shall be CIP (carriage and insurance paid according to Incoterms 2010). Once the Product(s)
have been delivered to the carrier and the full purchase price of the Products is adequately covered by insurance during international
transport with the beneficiary of such insurance being the Purchaser, Bitmain shall have fulfilled its obligation to supply the
Product(s) to the Purchaser, and the title and risk of loss or damage to the Product(s) shall pass to the Purchaser. |
| 4.3 | All delivery dates in Appendix A are estimated,
but not guaranteed. In the case that Purchaser has fulfilled its payment obligations in accordance with the terms and conditions
of this Agreement and Bitmain fails to deliver the Products within the shipping period listed in Appendix A, the Purchaser is entitled
to submit a written reminder to Bitmain. If Bitmain fails to deliver the Products within 30 days after receiving the written reminder
from the Purchaser, the Purchaser is entitled, to (i) request to terminate this Agreement and require Bitmain to return the amounts
paid by the Purchaser without setoff or adjustment (Bitmain shall not pay any interests in this respect), or (ii) continue to perform
this Agreement and require Bitmain to deliver the Products. |
| 4.4 | Bitmain shall not be responsible for any delivery
delay caused by the Purchaser or any third party, including but not limited to the carrier, the customs, and the 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 any Product(s) for any reason whatsoever. |
| 4.5 | Subject to the Products being adequately
covered by insurance during delivery of the Products to the Purchaser, Bitmain shall not be responsible and the Purchaser shall
be fully and exclusively responsible for any loss of Product(s), personal injury, property damage, other damage or liability caused
by the Product(s) or the transportation of the Product(s) either to the Purchaser or any third party, or theft of the Product(s)
during transportation from Bitmain to the Purchaser. |
| 4.6 | Bitmain has the right to discontinue the
sale of the Product(s) and to make changes to its Product(s) at any time, without prior approval from or notice to the Purchaser. |
| 4.7 | If the Product(s) is rejected and/or returned
back to Bitmain because of any reason and regardless of the cause of such delivery failure, the Purchaser shall be solely and exclusively
liable for and shall defend, fully indemnify and hold harmless Bitmain against any and all related expenses, fees, charges and
costs incurred, arising out of or incidental to such rejection and/or return (the “Return Expense”). Furthermore,
if the Purchaser would like to ask for Bitmain’s assistance in redelivering such Product(s) or assist in any other manner,
and if Bitmain at its sole discretion decides to provide this assistance, then in addition to the Return Expense, the Purchaser
shall also pay Bitmain an administrative fee in accordance with Bitmain’s then applicable internal policy. |
| 5.1 | Bitmain shall obtain in due time and maintain
throughout the term of this Agreement (if applicable), any and all approvals, permits, authorizations, licenses and clearances
for the export of the Product(s) that are required to be obtained by Bitmain or the carrier under Applicable Laws. |
| 5.2 | The Purchaser shall obtain in due time and
maintain throughout the term of this Agreement (if applicable), any and all approvals, permits, authorizations, licenses and clearances
required for the import of the Product(s) to the country of delivery as indicated in the Shipping Information, that are required
to be obtained by the Purchaser or the carrier under Applicable Laws, and shall be responsible for any and all additional fees,
expenses and charges in relation to the import of the Product(s). |
| 6.1 | Bitmain warrants to the Purchaser that during
the Warranty Period, each Product will conform to the applicable product requirements and specifications and perform and operate
as intended and as set forth on Bitmain’s website for each Product. The Warranty Period shall start on the Warranty Start
Date and end on the 180th day after the Warranty Start Date or 90 days after return shipment of a repaired Product covered
by this warranty. During the Warranty Period, the Purchaser’s sole and exclusive remedy, and Bitmain’s entire liability,
will be to repair or replace, at Bitmain’s option, the defective part/component of the Product(s) or the defective Product(s)
at no charge to the Purchaser including, but not limited to, any applicable testing or shipping charges. |
| 6.2 | The Parties acknowledge and agree that the
warranty provided by Bitmain as stated in the preceding paragraph does not apply to the following items caused by the Purchaser: |
| (ii) | damage resulting from accident, abuse, misuse,
neglect, improper handling or improper installation damage or loss of the Product(s) caused by undue physical or electrical stress,
including but not limited to moisture, corrosive environments, high voltage surges, extreme temperatures, shipping, or abnormal
working conditions; |
| (iii) | damage or loss of the Product(s) caused by
acts of nature including, but not limited to, floods, storms, fires, and earthquakes; |
| (iv) | damage caused by operator error, or non-compliance
with instructions as set out in accompanying documentation; |
| (v) | alterations by persons other than Bitmain,
associated partners or authorized service facilities; |
| (vi) | Product(s), on which the original software
has been replaced or modified by persons other than Bitmain, associated partners or authorized service facilities; |
| (vii) | use of counterfeit products; damage or loss
of data due to interoperability with current and/or future versions of operating system, software and/or hardware; |
| (viii) | damage or loss of data caused by improper
usage and behavior which is not recommended and/or permitted in the product documentation; |
| (ix) | failure of the Product(s) caused by usage
of products not supplied by Bitmain; and |
| (x) | hash boards or chips are burnt. |
In case the warranty is voided, Bitmain may, at its
sole discretion, provide repair service to the Purchaser, and the Purchaser shall bear all related expenses and costs.
| 6.3 | Notwithstanding anything to the contrary herein,
the Purchaser acknowledges and agrees that the Product(s) provided by Bitmain do not guarantee any cryptocurrency mining time and,
Bitmain shall not be liable for any cryptocurrency mining time loss or cryptocurrency mining revenue loss that are caused by downtime
of any part/component of the Product(s). Bitmain does not warrant that the Product(s) will meet the Purchaser’s requirements
or the Product(s) will be uninterrupted or error free. Except as provided in Clause 6.1 of this Agreement, Bitmain makes no warranties
to the Purchaser with respect to the Product(s), and no warranties of any kind, whether written, oral, express, implied or statutory,
including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing
or usage in trade shall apply. |
| 6.4 | In the event of any ambiguity or discrepancy
between this Clause 6 of this Agreement and Bitmain’s After-sales Service Policy from time to time, it is intended that the
After-sales Service Policy shall prevail and the Parties shall comply with and give effect to the After-sales Service Policy. |
| 7 | Representations and Warranties |
The Purchaser makes the following representations and
warranties to Bitmain:
| 7.1 | It has the full power and authority to purchase the Products and
carry on its businesses. |
| 7.2 | The obligations expressed to be assumed by
it under this Agreement are legal, valid, binding and enforceable obligations. |
| 7.3 | It has the power to enter into, perform and
deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement and the transactions
contemplated by this Agreement. |
| 7.4 | The entry into and performance by it of,
and the transactions contemplated by, this Agreement do not and will not conflict with: |
| (ii) | its constitutional documents; or |
| (iii) | any agreement or instrument binding upon it or any of its assets. |
| 7.5 | All authorizations required or desirable: |
| (i) | to enable it lawfully to enter into, exercise
its rights under and comply with its obligations under this Agreement; |
| (ii) | to ensure that those obligations are legal, valid, binding and enforceable;
and |
| (iii) | to make this Agreement admissible in evidence
in its jurisdiction of incorporation, have been or will have been by the time, obtained or effected and are, or will be by the
appropriate time, in full force and effect. |
| 7.6 | It is not aware of any circumstances which are likely to lead to: |
| (i) | any authorization obtained or effected not remaining in full force
and effect; |
| (ii) | any authorization not being obtained, renewed
or effected when required or desirable; or any authorization being subject to a condition or requirement which it does not reasonably
expect to satisfy or the compliance with which has or could reasonably be expected to have a material adverse effect. |
| 7.7 | (a) It is not the target of economic sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the
United Nations Security Council, the European Union, Her Majesty’s Treasury or Singapore (“Sanctions”), including
by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions
list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs
or other Persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the
target of Sanctions, and (b) the purchase of the Product(s) will not violate any Sanctions or import and export control related
laws and regulations. |
| 7.8 | All information supplied by the Purchaser
is and shall be true and correct, and the information does not contain and will not contain any statement that is false or misleading. |
| 8 | Indemnification and Limitation of Liability |
| 8.1 | Each party shall, during the term of this
Agreement and at any time thereafter, indemnify and save each other harmless from and against any and all damages, suits, claims,
judgments, liabilities, losses, fees, costs or expenses of any kind, including legal fees, whatsoever arising out of or incidental
to the Products pursuant to this Agreement, including but not limited, to any Product(s) infringing on Intellectual Property Rights
of a third party. |
| 8.2 | Notwithstanding anything to the contrary
herein, neither party shall under no circumstances, be liable to each other for any consequential loss, or loss of goodwill, business,
anticipated profits, revenue, contract, or business opportunity arising out of or in connection with this Agreement, and each party
hereby waives any claim it may at any time have against the other in respect of any such damages. The foregoing limitation of liability
shall apply whether in an action at law, including but not limited to contract, strict liability, negligence, willful misconduct
or other tortious action, or an action in equity. |
| 8.3 | Each Parties’ cumulative aggregate
liability pursuant to this Agreement, whether arising from tort, breach of contract or any other cause of action shall be limited
to and not exceed the amount of one hundred percent (100%) of the Total Purchase Price actually received by Bitmain from the Purchaser
and paid by the Purchaser to Bitmain for the Product(s). |
| 8.4 | The Product(s) are not designed, manufactured
or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation, such as
the operation of nuclear facilities, aircraft navigation or communication systems or in any other applications or activities in
which failure of the Product(s) may pose the risk of environmental harm or physical injury or death to humans. Bitmain specifically
disclaims any express or implied warranty of fitness for any of the above described application and any such use shall be at the
Purchaser’s sole risk. |
| 8.5 | The above limitations and exclusions shall
apply (1) notwithstanding failure of essential purpose of any exclusive or limited remedy; and (2) whether or not such party has
been advised of the possibility of such damages. This Clause allocates the risks under this Agreement and the pricing reflects
this allocation of risk and the above limitations. |
| 9.1 | This Agreement does not constitute a distributor
agreement between Bitmain and the Purchaser. Therefore, the Purchaser is not an authorized distributor of Bitmain. |
| 9.2 | The Purchaser shall in no event claim or imply
to a third party that it is an authorized distributor of Bitmain or Bitmain (Antminer) or any similar terms, or perform any act
that will cause it to be construed as an authorized distributor of Bitmain or Bitmain (Antminer). As between the Purchaser and
Bitmain, the Purchaser shall be exclusively and fully responsible for complying with the Applicable Laws regarding repackaging
the Product(s) for the Purchaser’s redistribution needs, and shall be solely liable for any and all liabilities or costs
directly incurred or incidental to such redistribution. |
| 10 | Intellectual Property Rights |
| 10.1 | The Parties agree that the Intellectual Property
Rights in any way contained in the Product(s), made, conceived or developed by Bitmain and/or its Affiliates for the Product(s)
under this Agreement and/or, achieved, derived from, related to, connected with the provision of the Product(s) by Bitmain and/or
acquired by Bitmain from any other person in performance of this Agreement shall be the exclusive property of Bitmain and/or its
Affiliates. |
| 10.2 | Notwithstanding anything to the contrary herein,
all Intellectual Property Rights in the Product(s) shall remain the exclusive property of Bitmain and/or its licensors. Except
for licenses explicitly identified in Bitmain’s shipping confirmation or in this Clause 10.2, no rights or licenses are expressly
granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of Bitmain and/or its Affiliates
or any Intellectual Property residing in the Product(s) provided by Bitmain to the Purchaser, including in any documentation or
any data furnished by Bitmain. Bitmain grants the Purchaser a non-exclusive, non-transferrable, royalty- free and irrevocable license
of Bitmain and/or its Affiliates’ Intellectual Property Rights to solely use the Product(s) delivered by Bitmain to the Purchaser
for their ordinary function, and subject to the Clauses set forth herein. The Purchaser shall in no event violate the Intellectual
Property Rights of Bitmain and/or its licensors. |
| 10.3 | If applicable, payment by the Purchaser of
non-recurring charges to Bitmain for any special designs, or engineering or production materials required for Bitmain’s performance
of Orders for customized Product(s), shall not be construed as payment for the assignment from Bitmain to the Purchaser of title
to the design or special materials. Bitmain shall be the sole owner of such special designs, engineering or production materials. |
| 11 | Confidential Information and Disclosure |
| 11.1 | All information concerning this Agreement and matters pertaining
to or derived from the provision of Product(s) pursuant to this Agreement between the Parties, whether in oral or written form,
or in the form of drawings, computer programs or other, as well as all data derived therefrom (“Confidential Information”),
shall be deemed to be confidential and, as such, may not be divulged to any unauthorized person. The Parties undertake and agree
to take all reasonable and practicable steps to ensure and protect the confidentiality of the Confidential Information which cannot
be passed, sold, traded, published or disclosed to any unauthorized person. |
| 11.2 | Notwithstanding Section 11.1, Bitmain acknowledges
and agrees that Purchaser is a U.S. publicly traded company and may be required to disclose this Agreement and its related terms,
in order to comply with applicable securities laws, including its disclosure obligations under the U.S. Securities Exchange Act
of 1934, as amended. |
| 12 | Term and Termination of this Agreement |
| 12.1 | This Agreement will be effective upon Bitmain’s
issuance of the shipping confirmation to the Purchaser, provided that if there is more than one shipping confirmation, this Agreement
will be effective to the Products contained in each shipping confirmation upon Bitmain’s issuance of the respective shipping
confirmation to the Purchaser. |
| 12.2 | Bitmain shall be entitled to terminate this
Agreement with immediate effect upon written notice to the Purchaser if: |
| (i) | the Purchaser fails to comply in any material
respect of this Agreement, and where that failure is capable of being remedied, fails to remedy it within thirty (30) days of being
required by Bitmain to do so; |
| (ii) | it is or becomes unlawful for the Purchaser
to perform or comply with any of its material obligations under this Agreement or all or a material part of the obligations of
the Purchaser under this Agreement are not or cease to be valid, binding and enforceable; or |
| (iii) | an Insolvency Event occurs in respect of the Purchaser. |
| 12.3 | The Purchaser shall be entitled to terminate
this Agreement with immediate effect upon written notice to Bitmain if Bitmain fails to deliver the Product(s) to the carrier in
accordance with the delivery dates indicated in the shipping confirmation, and fails to remedy it within the time period pursuant
to Section 4.3 of being required by the Purchaser to do so. |
| 12.4 | This Agreement shall also be automatically
terminated between the Parties if the Order is cancelled because of any reason stated in this Agreement. |
| 12.5 | Termination of this Agreement shall be without
prejudice to the rights and liabilities of the Parties accrued prior to or as a result of such termination, including those related
to antecedent breaches. Termination of this Agreement for any cause or otherwise shall not release a Party from any liability which
at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission
prior to such termination. The rights and obligations of the Parties under Clause 1 (Definitions and Interpretations), Clause 10
(Intellectual Property Rights), Clause 11 (Confidential Information and Disclosure), Clause 12 (Term and Termination of this Agreement),
Clause 13 (Contact Information), Clause 14 (Compliance with Laws and Regulations) and Clause 21 (Governing Law and Dispute Resolution)
shall survive the termination of this Agreement. |
All communications in relation to this Agreement shall
be made to the following contacts:
Purchaser’s business contact:
Name: Xxxx XxXxxxxxx
Phone: x0 000-000-0000, [****]
Email: [****]
Bitmain’s business contact:
Name: Xxxx XX
Phone: [****]
Email: [****]
| 14 | Compliance with Laws and Regulations |
| 14.1 | The Purchaser undertakes that it will fully
comply with all Applicable Laws in relation to export and import control and Sanctions and shall not take any action that would
cause Bitmain or any of its Affiliates to be in violation of any export and import control laws or Sanctions. The Purchaser shall
also be fully and exclusively liable for and shall defend, fully indemnify and hold harmless Bitmain and/or its Affiliates from
and against any and all claims, demands, actions, costs or proceedings brought or instituted against Bitmain and/or its Affiliates
arising out of or in connection with any breach by the Purchaser or the carrier of any Applicable Laws in relation to export and
import control or Sanction. |
| 14.2 | The Purchaser acknowledges and agrees that
the Product(s) in this Agreement are subject to the export control laws and regulations of all related countries, including but
not limited to the Export Administration Regulations (“EAR”) of the United States. Without limiting the foregoing,
the Purchaser shall not, without receiving the proper licenses or license exceptions from all related governmental authorities,
including but not limited to the U.S. Bureau of Industry and Security, distribute, re- distribute, export, re-export, or transfer
any Product(s) subject to this Agreement either directly or indirectly, to any national of any country identified in Country Groups
D:1 or E:1 as defined in the EARs. In addition, the Product(s) under this Agreement may not be exported, re-exported, or transferred
to (a) any person or entity listed on the “Entity List”, “Denied Persons List” or the SDN List as such
lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such
activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of
nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support
of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. The Purchaser further
agrees that it will not do any of the foregoing in violation of any restriction, law, or regulation of the European Union or an
individual EU member state that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau
of Industry and Security. |
| 14.3 | The Purchaser undertakes that it will not
take any action under this Agreement or use the Product(s) in a way that will be a breach of any anti-money laundering laws, any
anti-corruption laws, and/or any counter-terrorist financing laws. |
| 14.4 | The Purchaser warrants that the Product(s)
have been purchased with funds that are from legitimate sources and such funds do not constitute proceeds of criminal conduct,
or realizable property, or proceeds of terrorism financing or property of terrorist, within the meaning given in the Corruption,
Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) and the Terrorism (Suppression of Financing)
Act (Chapter 325), respectively. The Purchaser understands that if any Person resident in Singapore knows or suspects or has reasonable
grounds for knowing or suspecting that another Person is engaged in criminal conduct or is involved with terrorism or terrorist
property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated
sector, or other trade, profession, business or employment, the Person will be required to report such knowledge or suspicion to
the Suspicious Transaction Reporting Office, Commercial Affairs Department of the Singapore Police Force. The Purchaser acknowledges
that such a report shall not be treated as breach of confidence or violation of any restriction upon the disclosure of information
imposed by any Applicable Law, contractually or otherwise. |
| 15.1 | To the extent that a Party is fully or partially
delayed, prevented or hindered by an event of Force Majeure from performing any obligation under this Agreement (other than an
obligation to make payment), subject to the exercise of reasonable diligence by the affected Party, the failure to perform shall
be excused by the occurrence of such event of Force Majeure. A Party claiming that its performance is excused by an event of Force
Majeure shall, promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature, date of inception
and expected duration of such event of Force Majeure and the extent to which the Party expects that the event will delay, prevent
or hinder the Party from performing its obligations under this Agreement. The notifying Party shall thereafter use its best effort
to eliminate such event of Force Majeure and mitigate its effects. |
| 15.2 | The affected Party shall use reasonable diligence
to remove the event of Force Majeure, and shall keep the other Party informed of all significant developments. |
| 16 | Entire Agreement and Amendment |
This Agreement, including
Appendix A, attached hereto and incorporated by reference herein, constitutes the entire agreement of the Parties hereto and can
only be amended with the written consent of both Parties or otherwise as mutually agreed by both Parties.
Bitmain
may freely assign this Agreement in whole or in part to its Affiliates or to any third party. The Purchaser may not assign this
Agreement in whole or in part without Bitmain’s prior written consent.
To
the extent possible, if any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part by
a court, the provision shall apply with whatever deletion or modification is necessary so that such provision is legal, valid and
enforceable and gives effect to the commercial intention of the Parties. The remaining provisions of this Agreement shall not be
affected and shall remain in full force and effect.
Depending on the nature of
the Purchaser’s interaction with Bitmain, some examples of personal data which Bitmain may collect from the Purchaser include
the Purchaser’s name and identification information, contact information such as the Purchaser’s address, email address
and telephone number, nationality, gender, date of birth, and financial information such as credit card numbers, debit card numbers
and bank account information.
Bitmain
generally does not collect the Purchaser’s personal data unless (a) it is provided to Bitmain voluntarily by the Purchaser
directly or via a third party who has been duly authorized by the Purchaser to disclose the Purchaser’s personal data to
Bitmain (the Purchaser’s “authorized representative”) after (i) the Purchaser (or the Purchaser’s authorized
representative) has been notified of the purposes for which the data is collected, and (ii) the Purchaser (or the Purchaser’s
authorized representative) has provided written consent to the collection and usage of the Purchaser’s personal data for
those purposes, or
(b) collection and use of
personal data without consent is permitted or required by related laws. Bitmain shall seek the Purchaser’s consent before
collecting any additional personal data and before using the Purchaser’s personal data for a purpose which has not been notified
to the Purchaser (except where permitted or authorized by law).
| 20 | Conflict with the Terms and Conditions |
In the
event of any ambiguity or discrepancy between the Clauses of this Agreement and the Terms and Conditions from time to time, it
is intended that the Clauses of this Agreement shall prevail and the Parties shall comply with and give effect to this Agreement.
| 21 | Governing Law and Dispute Resolution |
| 21.1 | This Agreement shall be solely governed by and
construed in accordance with the laws of Singapore and the United Nations Convention on Contracts for the International Sale of
Goods (the “UNCISG”). |
| 21.2 | Any dispute, controversy, difference or claim
arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination
hereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement shall be referred to and
finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) under the SIAC Arbitration
Rules in force when the notice of arbitration is submitted. The law of this arbitration clause shall be Singapore law, as modified
and subject to the UNCISG. The seat of arbitration shall be Singapore. The arbitration proceedings shall be conducted in English.
The number of arbitrators shall be three unless otherwise subsequently agreed in writing by the Parties. |
Failure by either Party
to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute
a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving
Party to thereafter enforce each and every such provision or option.
| 23 | Counterparts and Electronic Signatures |
This
Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and
all of which, when taken together, will be deemed to constitute one and the same agreement. The email or other electronically delivered
signatures of the Parties shall be deemed to constitute original signatures, or electronic copies hereof shall be deemed to constitute
duplicate originals.
(The rest part of the
page is intentionally left in blank)
Signed for and on behalf of Bitmain
| |
Bitmaintech Pte. Ltd. |
|
| |
Signature: /s/ Xxxxx Xx |
|
| |
Title: CEO |
|
Signed for and on behalf of the Purchaser
| |
The Purchaser |
|
| |
|
|
| |
Signature By: /s/ Xxxxxxx XxXxxxxxx |
| |
Title: Chief Executive Officer |
APPENDIX A
This Appendix A (this “Appendix
A”) specifies the Products sold by Bitmaintech PTE. LTD. (“Bitmain”) to Riot Blockchain, Inc. (the “Purchaser”)
(Bitmain and the Purchaser, collectively, the “Parties” and each a “Party”) pursuant to the purchase and
sale agreement (the “Agreement”) between the Parties, as well as the specific payment and delivery terms applicable
to the Products under the Agreement.
| 1. | Per the Purchaser’s request, Bitmain
will provide the following Product(s) upon full payment in accordance with the terms specified hereunder to the Purchaser on or
before the dates specified herein: |
| Description of Product(s) |
Price |
| Estimated Unit price |
Units |
Total |
|
Antminer
S19 Pro-110TH/s,
Feb-Jun
2021 |
US$2,362.00 |
5,100.00 |
US$12,046,200.00 |
| First Carrier: Estimated Shipping cost to USA via Aircargo |
TBD |
| [****] Extra Discount |
US$858,894.06 |
| TOTAL PURCHASE PRICE: US$11,187,305.94 |
| Address for delivery: |
[****] |
| |
|
|
|
|
| 2. | The Parties confirm that the total hashrate of the Products under
this Agreement shall not be less than 561,000.00TH/s. |
| 3. | Where the actual Products provided by Bitmain
are not in consistence with the description listed in Article 1 of this Appendix A, provided that all the following three requirements
are met, the unit price and/or quantity of the Products can be adjusted by Bitmain based on the actual type of the Products before
delivery. The types, quantity and unit price of the actual delivered Products shall be subject to the statement issued by Bitmain.
the Purchaser shall not refuse to accept the Products on the grounds that the types, quantity and/or unit price of the actual delivered
Products are inconsistent with Article 1 of Appendix A provided: |
| (1) | The total hashrate of the Products actually
delivered by Bitmain to the Purchaser shall not be less than the total hashrate as stipulated in Article 2 of Appendix A; |
| (2) | The Products actually delivered by Bitmain
to the Purchaser are S19 Pro series Products; and |
| (3) | The total price of the Products actually
delivered by Bitmain to the Purchaser shall not exceed the Total Purchase Price of the Products as stipulated in Article 1 of Appendix
A. |
| 4. | Bitmain’s BANK ACCOUNT info: |
Account Name: Bitmaintech
Pte Ltd
Beneficiary
Bank: [****]
Address: [****]
Swift Code: [****]
Bank Code: [****]
Branch Code: [****]
Account
Number (USD): [****]
| 5. | The payment shall be arranged by the Purchaser
as follows: |
| (1) | Thirty percent (30%) of the Total Purchase
Price of the Product(s) as listed above (or the corresponding Proforma Invoice) shall be paid as refundable down payment within
forty-eight (48) hours upon the Confirmation/Signing of the Order/Contract by the Purchaser, otherwise the Order will be cancelled
and Bitmain shall not be required to review and/or to confirm the Order; |
| (2) | The Purchaser shall pay the ten percent (10%)
of the Total Purchase Price of the Product(s) as listed above (or the corresponding Proforma Invoice) prior to October 15, 2020;
|
| (3) | The Purchaser shall pay the ten percent (10%)
of the Total Purchase Price of the Product(s) as listed above (or the corresponding Proforma Invoice) prior to November 15, 2020;
and |
| (4) | The Purchaser shall pay the remaining fifty
percent (50%) of the Total Purchase Price of the Product(s) as listed above (or the corresponding Proforma Invoice) in equal monthly
installments due not less than thirty (30) days prior to the scheduled delivery of the Product(s) as follows: |
| a) | Two percent (2%)no
later than 30 days prior to each scheduled delivery period or (the “Due Date”) as to the first (1st) installment
of the Products to be shipped to the Purchaser in February 2021; |
| b) | Four percent (4%) no later than 30 days prior
to each scheduled delivery period or (the “Due Date”) as to the second (2nd) installment of the Products
to be shipped to the Purchaser in Mar 2021; |
| c) | Four percent (4%) no later than 30 days prior
to each scheduled delivery period or (the “Due Date”) as to the third (3rd) installment of the Products
to be shipped to the Purchaser in Apr 2021; |
| d) | Twenty percent (20%) no later than 30 days
prior to each scheduled delivery period or (the “Due Date”) as to the fourth (4th) installment of the Products
to be shipped to the Purchaser in May 2021; and |
| e) | Twenty percent (20%) no later than 30 days
prior to each scheduled delivery period or (the “Due Date”) as to the fifth (5th) and final installment
of the Products to be shipped to the Purchaser in June 2021. |
| (5) | Payments shall be made in United States Dollars
(USD) by wire transfer to Bitmain’s Bank Account, or in any other currency and by any other payment method as may be agreed
by both Parties. Bitmain will send a payment receipt to the Purchaser after confirming the remittance of each installment of the
Total Purchase Price specified above no later than the second (2nd) day after it receives the same. |
| 6. | Subject to the timely payment of the Purchase Price as specified
in the foregoing Article 5 of this Appendix A, Bitmain shall deliver the Products described in this Appendix A to the Purchaser
pursuant to the terms and conditions set forth in the Agreement at the address for delivery specified by the Purchaser in this
Appendix A (as may be updated from time to time by providing written notice to Bitmain no less than ten (10) days in advance of
each of the delivery dates listed below) according to the following schedule: |
| (1) | 200 Units on or before February 28, 2021; |
| (2) | 400 Units on or before March 31, 2021; |
| (3) | 400 Units on or before Apr 30, 2021; |
| (4) | 2,100 Units on or before May 31, 2021 |
| (5) | the remaining 2,000 Units on or before June 30, 2021. |
| 7. | Without prejudice to the above, the unit
price and the Total Purchase Price of the Product(s) and any amount paid by the Purchaser shall be all denominated in USD. Where
the Parties agree that the payments shall be made in cryptocurrencies, the exchange rate between the USD and the cryptocurrency
selected shall be determined and calculated as follows: (1) in the event that the Purchaser pays for any order placed on Bitmain’s
official Website (the “Website”) which is valid and has not been fully paid yet, the exchange rate between United States
Dollars and the cryptocurrency fixed in such placed order shall apply, or (2) in any other case, the real time exchange rate between
the USD and the cryptocurrency displayed on the Website upon payment shall apply. The exchange rate between the USD and the cryptocurrency
shall be fixed according to this provision. In any circumstance, the Purchaser shall not ask for any refund due to the change of
exchange rate. |
| 8. | The Parties hereby acknowledge and agree
that the terms of this Appendix A form an integral part of the essential terms and conditions of the Agreement, are incorporated
by reference into and made part of the Agreement, and represent the final agreement of the Parties with respect to the purchase
and sale of the Products specified herein. The Parties hereby further acknowledge and agree, for the avoidance of doubt, that where
the terms of this Appendix A and the Agreement conflict, the terms of this Appendix A shall control in all respects. |
