CRYPTOCURRENCY MINING RIG STANDARD HOSTING TERMS

Updated April 30, 2018

 

These CRYPTOCURRENCY MINING RIG STANDARD HOSTING TERMS (these ‘Standard Terms”) apply to any mining rig hosting provided by Austin Binary Research, LLC d/b/a CryptoGulch, a Texas limited liability company or its affiliates (collectively “Provider”), and is used with and is a deemed incorporated into and a part of the Cryptocurrency Mining Rig Hosting Agreement setting forth the basic hosting terms (the “Agreement Terms”) and that Provider may enter into with an owner of a hardware/software system owned by a party availing itself of Provider’s hosting services (“Owner”, and together with Provider, the “Parties”, and each, a “Party”). In the event that no separate written agreement is entered into with an Owner, these Standard Terms shall nonetheless govern the arrangements with the Owner. These Standard Terms, any Agreement Terms, the Acknowledgement and Acceptance Agreement referred to below, the Cryptocurrency Mining Considerations contained on Provider’s website, and any other written agreements entered into by the Parties in connection with the Services (as defined below) are collectively referred to as the “Agreement.”

 

Provider is in the business of, among other things, mining cryptocurrencies for itself and providing co-location facilities and assistance to persons who wish to co-locate their separately owned cryptocurrency mining hardware or rigs (“Rigs”) at Provider’s location all at the sole direction of the owners of such Rigs.

 

Owners from time to time determine which Rigs and other hardware and related software therefor, including hardware and software add-ons that may be included therewith from time to time with which to mine cryptocurrency (collectively, “Owner’s Property”) and which Owners wish to co-locate at Provider’s facilities (“Co-Location Facilities”). Owners make available to Provider, either acquired through Owner’s own means or through purchase from Provider or an affiliate of Provider, the hardware and software comprising Owner’s Property. If Owner purchases the hardware and software comprising Owner’s Property from Provider or an affiliate of Provider, Provider and/or any affiliate of Provider will retain title to such property until Owner makes payment in full to Provider of the amounts indicated as then due in the Agreement Terms. If Owner acquires Owner’s Property through Owner’s own means Owner must prove and/or allow Provider to verify (at Owner’s cost, including the hourly fee of Provider then in effect in respect of the effort to undertake such verification), at Provider’s option, that Owner’s Property does not harbor any malicious code before Provider provides any Services (as defined below) regarding such Owner’s Property. Co-Location Facilitates may be owned, leased or subleased by Provider or its affiliates, or be under any other arrangement established by Provider or its affiliates where Owner’s Property may have access to the means to mine cryptocurrency, including joint ventured co-location facilitates with providers similar to Provider. Owner releases Provider from any damages relating to any attempt, lawful or otherwise, by any induvial, other than Provider, to claim an interest in Owner’s Property. OWNER PURCHASES THE EQUIPMENT AS IS AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT, THE MANUFACTURER’S AGENT OR THE SELLER’S AGENT, PROVIDER MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT, OR INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE EQUIPMENT. Owner shall have all applicable manufacturer warranties, to the extent any equipment is purchased by Owner from such manufacturer. All transferrable manufacturer and supplier warranty rights are, to the extent such rights have been obtained to Provider, hereby assigned without representation or warranty by Provider to Owner, which warranties Owner is authorized to enforce.

 

Provider shall set up Owner’s Property at such Co-Location Facilities as Provider may determine, provided that the initial location of Owner’s Property shall be as indicated in Agreement Terms. Owner’s Property shall mine the cryptocurrency as Owner may direct in its sole discretion for a number of hours each day as set forth in Agreement Terms (“Owner’s Mining Period”), with Owner allowing Provider to mine cryptocurrency with Owner’s Property for the remainder of each day. If no Agreement Terms are entered into the standard time per day for which Owner’s Property shall mine cryptocurrency for Owner shall be 17 hours. At any time, by notice of Provider to Owner, Owner’s Mining Period may be reduced effective the date set forth in such notice, which shall not be earlier than ten (10) days after the date of such notice. Provider would generally provide such a notice if its costs are not permitting it to obtain an acceptable return from the mining it may undertake for its own behalf using the Owner Property. Owner may terminate the Services on written notice within such ten (10) day period in the event of Provider’s notice of reduction of Owner’s Mining Period. If Owner fails to give such notice of termination within such time the Services shall continue as provided herein, subject to the General Termination Rights (as defined below). At any time, Provider may increase Owner’s Mining Period with or without notice to Owner, though Provider would generally provide notice thereof. There shall be no Owner termination right (other than the General Termination Rights) if Owner’s Mining Period is ever reduced to a level that was previously effective hereunder.

 

If for any reason after the Owner’s Property is installed and has commenced cryptocurrency mining the Owner’s Property is subject to downtime and does not operate to mine cryptocurrency Provider may, in its sole discretion, arrange for the Owner’s Property to mine Cryptocurrency beyond Owner’s Mining Period until the such downtime is made up. In general Provider would make this allowance for downtime that could have been reasonably avoided by Provider taking appropriate action or otherwise events within the control of Provider and not for events referred to in the last paragraph of these Standard Terms.

 

Beginning on the date of delivery of Owner’s Property to the Co-Location as determined by Provider, Provider shall provide the Services (as defined below). For purposes of the Agreement, “Services” shall include installing, hosting, maintaining and repairing Owner’s Property, and providing the networking interconnectivity, electricity and associated facilities and staffing necessary to allow the Owner’s Property to operate to mine such cryptocurrency as Owner’s Property is capable to mine and as Owner may direct from time to time in the manner set forth below. Owner is undertaking the task of cryptocurrency mining on Owner’s own behalf only, at Owner’s own risk and for Owner’s own benefits. Owner acknowledges that Owner must make significant choices outside the scope of its arrangements with Provider that will determine the profitability of the Owner’s decision to undertake the task of cryptocurrency mining (“Owner’s Choices”) including but not limited to deciding whether or not to mine cryptocurrencies with Owner’s Property through Owner’s own means, whether or not to use the Services or to accomplish the tasks that constitute the Services with another provider, what type of cryptocurrency mining equipment to purchase, what cryptocurrency to mine, whether or what mining pool to use, when, where, how, and to whom to sell any mined cryptocurrency, and whether or not to convert any mined cryptocurrency to another cryptocurrency or to fiat currency and how to effect such conversion. Owner understands that some of Owner’s Choices may be limited by the software of Provider and/or Owner’s Property and/or other factors. However, Owner may communicate to Provider Owner’s desire, if any, to make a decision regarding any of Owner’s Choices that is not readily available under Provider’s current interface. In such case, Provider will inform Owner if it will change its interface or otherwise accommodate Owner’s choice. Afterwards, Owner may either give Provider a reasonable time to accommodate Owner accordingly or make the decision to not engage the Services or to engage the General Termination Rights (as defined below), as the case may be. Owner must conduct Owner’s own research when making a decision regarding Owner’s Choices and any communication with Provider regarding any of Owner’s Choices is a matter of noting options or providing opinion and not a recommendation.

 

To initiate the Services hereunder, in addition to providing to Provider at the initial Co-Location Facility(ies) Owner’s Property, Owner shall make a payment to Provider of the amounts indicated as then due in the Agreement Terms. Owner is not required to provide further payments to initiate the hosting services.

 

The cryptocurrency mined by the Owner’s Property will be deposited directly into wallet(s) indicated by Owner as set forth in the Agreement Terms or as modified upon notice to Provider in accordance herewith (collectively, “Owner’s Digital Currency Wallet”). Cryptocurrency mined during other times will be deposited into such wallet(s) as Provider may choose. Provider does not operate Owner’s Digital Currency Wallet. Owner is solely responsible for maintaining and controlling Owner’s Digital Currency Wallet. For the avoidance of doubt, Provider’s only obligation in respect of Owner’s Digital Currency Wallet is to undertake reasonable efforts to program Owner’s Property to deposit cryptocurrency mined by Owner’s Property into Owner’s Digital Currency Wallet as provided herein and Provider has no liability for any failure of the mined currency to be received into any Owner’s Digital Currency Wallet or any operation of, failure of or attack upon Owner’s Digital Currency Wallet.

 

Owner acknowledges and agrees that the arrangements in respect of Owner’s Property and the Services are not an investment contract or any other type of security under the United States securities laws. As such, Owner acknowledges and agrees that Owner is not entitled to the protections afforded those transacting in securities under such securities laws. Because the Services may entail financial risks on both Owner and Provider, concurrent with the execution of the Agreement, Owner and each of its owners shall sign the Acknowledgement and Acceptance Agreement.

 

Owner shall not use Owner’s Property, the Services or the content or information delivered through the Services to conduct any business or activity or solicit the performance of any activity for any illegal, fraudulent, unauthorized or improper purposes. Owner shall comply with all applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities in connection with Owner’s Property and Owner’s use of the Services. Owner agrees that Owner shall not attempt to: (a) access any software or part of the Services without consent from Provider; (b) access the Owner’s Property without notice to Provider; or (c) interfere in any manner with the provision of the Services or Provider’s software, or otherwise abuse the Services or Provider’s software. Notwithstanding the foregoing, Owner is entitled to physical access to view the Owner’s Property with reasonable notice to Provider and return of Owner’s Property as set forth herein.

 

The Agreement does not transfer to Owner any ownership or proprietary rights in the Technology (as defined below) or any work or any part thereof, and all right, title and interest in and to the Technology will remain solely with Provider. Owner is not purchasing title to any Technology. Owner is permitted to use Technology to the extent and for the sole purposes of enabling Owner to benefit from the Services in the manner permitted by the Agreement. Owner’s rights under the Agreement are not transferable to any other person absent Provider’s prior express written consent. Owner shall not in any manner duplicate the Technology or use the Technology independently other than as set forth above, and Provider grants no license, whether express or implied, in any copyright, patent or any other intellectual property rights embodied in the Technology. For purposes of the Agreement, “Technology” shall mean the computer programs Provider uses, literary works, audiovisual works, all other original works of expression, methods, apparati and processes that Provider publishes, distributes, uses or otherwise exploits to facilitate Owner’s use of the Services, and includes without limitation any software, software tools, user interface designs, and any derivatives, improvements, enhancements or extensions thereof developed or provided by Provider and used in the provision of the Services.

 

Owner knows and acknowledges that there may be theoretical or practical competition between Owner and Provider respecting cryptocurrency mining and cryptocurrency holding and trading. Owner hereby waives any and all potential and existing conflict of interest that Provider may have in providing Services pursuant to the Agreement or otherwise.

 

By accepting the Services Owner hereby represents and warrants to Provider as follows:

 

(a) Owner is a person or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Agreement and performance by Owner have been duly authorized by Owner. The Agreement constitutes the valid and legally binding obligation of Owner, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

(b) Owner is a sophisticated investor and is able to bear the economic risk associated with cryptocurrency mining. Owner has prior investment experience, and has read and evaluated, or has employed the services of an investment advisor, attorney or accountant to research, read and evaluate, the opportunity of becoming a miner of cryptocurrencies and has investigated for Owner’s benefit all of the information, materials and relevant documents applicable to the risks and benefits of acquiring mining equipment and mining and hodling cryptocurrencies. Owner’s overall commitment to Owner’s investments in the mining equipment, are not disproportionate to Owner’s net worth, and no such investment will cause such overall commitment to become excessive. Owner has adequate means of providing for Owner’s current needs and personal and family contingencies and has no need for liquidity in Owner’s investment in the cryptocurrency mining equipment. Owner is financially able to bear the economic risk of becoming a cryptocurrency miner, including bearing losses should the results of mining not recoup its costs.

 

(c) Owner acknowledges receipt and careful review of the Agreement, including the Considerations, these Standard Terms, and the Agreement Terms, and has been furnished with all information regarding the Provider hosting Owner’s Property which Owner has requested or desires to know; and Owner has been afforded the opportunity to ask questions of and receive answers concerning the terms and conditions of the such hosting arrangements and any additional information which the Individual has requested.

 

(d) Owner acknowledges that cryptocurrency mining, holding and transacting may involve tax consequences to Owner and that the Provider has proffered no tax advice to Owner, which may be relied upon. Owner acknowledges that Owner must retain Owner’s own professional advisors to evaluate the tax and other legal implications of cryptocurrency mining, holding and transacting.

 

IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO PROVIDER FOR THE SERVICES PROVIDED HEREUNDER.

 

Owner is in compliance with and shall comply with all applicable laws, regulations and ordinances. Owner represents and warrants to the Provider that Owner has the power, authority, and legal capacity to enter into and to perform under the Agreement.

 

Owner shall indemnify, defend and hold harmless Provider and its owners and their respective officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to any claim of a third party or Provider arising out of or occurring in connection with the provision of the Services from Provider to Owner or Owner’s negligence, willful misconduct or material breach of the Agreement. Owner shall not enter into any settlement without Provider’s or Indemnified Party’s prior written consent.

 

The term of the Services for any item of Owner Property that conducts Mining Operations (as defined below) shall commence on the first date of Mining Operations that Provider gives notice to Owner that such portion of Owner’s Property is installed at Provider’s applicable co-location facility and shall continue for the Minimum Term, as provided in the Agreement Terms or, if not set forth in any Agreement Terms, one year from the first date of Mining Operations with any such item of Owner’s Property. Upon the expiration of the preceding term the Services shall be renewed for the same period, and for successive terms thereafter, unless either Party gives written notice at least fifteen (15) days before the end of the then applicable period of Services.  Such initial term with any such successive periods referred to herein as the “Term.” The Services may be terminated before the end of the Term in accordance with the below provisions. Provider shall give notice to Owner of such first date of Mining Operations in respect of such item(s). For clarity, it is understood that over time Owner may add additional graphic cards or other computing items that may mine cryptocurrency to Owner’s Property and the Term of Services applies to each such item. “Mining Operations” means the installation and operation of Owner’s Property’s to mine cryptocurrency.

 

This Services may be terminated at any time prior to the expiration of the Term (the “General Termination Rights”): (1) by mutual written agreement of Owner and Provider; or (2) upon material breach of the Agreement by the non-breaching Party, after the non-breaching Party gives notice to the breaching Party and the breaching Party fails to cure the breach within five (5) business days upon notice; or (3) on at least fifteen (15) days’ prior written notice by either Party to the other Party specifying the date of termination not more than thirty (30) days after the date of such notice; or (4) by Owner upon notice as provided above after Provider gives notice of a reduction of Owner’s Mining Period.

 

Any termination of Services will be for good cause (“Good Cause”) if: Owner has repeatedly attempted to direct the activities of Provider that encompass the Services; or Owner threatens breach of these Standard Terms, the Agreement or any other agreement entered into by Owner of its owners or affiliates in connection herewith or Owner threatens litigation.

 

Upon any early termination by Owner or by Provider for Good Cause or for Owners breach of the Services in respect of any Owner’s Property that conducts Mining Operations (a termination before the expiration of the Term therefor), Owner shall compensate Provider with U.S. Dollars equal to the highest value of cryptocurrency mined in any month on each item of Owner’s Property on behalf of Provider multiplied by the number of months, and portions thereof, remaining in the Term for such item as reasonably determined by Provider. Whenever the Services are terminated, whether on expiration of the Term or earlier termination and whether or not for Good Cause, Owner shall pay the Owner Property uninstall fee set forth in the Agreement Terms, if any, plus the costs of one-week shipping of Owner’s Property to Owner, as reasonably determined by Provider. Until Owner provides any above-provider payments, after any termination, Provider shall retain all of Owner’s Property and Provider may mine cryptocurrency with such Owner’s Property entirely for Provider’s own behalf in its sole discretion.

 

Owner may avoid the payment of shipping costs set forth above if it notifies Provider in writing that it wishes to abandon the Owner’s Property in which case Provider may nonetheless ship the Owner’s Property to Owner at Provider’s expense or dispose of the Owner’s Property in Provider’s sole discretion. In this case Provider may sign documents to transfer or dispose of the Owner’s Property on behalf of Owner as Owner’s agent or attorney-in-fact and Owner shall indemnify and hold Provider harmless from all claims and consequences of so acting.

 

Notwithstanding anything to the contrary herein, the indemnification, termination, confidentiality and payment obligations hereunder, and under the Agreement Terms, the Acknowledgement and Acceptance Agreement, and other written agreements applicable to the Services (including any early termination payment or Owner Property uninstall fee or shipping expenses) shall survive the termination and expiration of the Agreement.

 

Upon the expiration of the Term or early termination as provided herein, and the making of any required payment by Owner, Provider shall immediately cease the operation of the Owner’s Property for Owner’s benefit and commence uninstallation and disconnection of the Owner’s Property from the internet network and power. If Owner’s wrongful activity or violations of these Standard Terms or the Agreement entitle or potentially entitle Provider to damages or Owner otherwise has unpaid obligations or potential obligations to Provider at the time of termination, then Provider is permitted to retain and sell any of Owner’s Property necessary as a setoff against those damages and other obligations.

 

All non-public, confidential or proprietary information of Provider, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Provider to Owner, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “Confidential,” in connection with the Services is confidential, solely for the use of performing the Services and may not be disclosed or copied unless authorized by Provider in advance in writing. Upon Provider’s request, Owner shall promptly return all documents and other materials received from Provider. Provider shall be entitled to injunctive relief for any violation of this paragraph. This first sentence of this paragraph shall not apply to information that is: (a) in the public domain; (b) known to the Owner at the time of disclosure; or (c) rightfully obtained by the Owner on a non-confidential basis from a third party. Owner may not use Provider’s name, trademarks, brands, patents, other types of intellectual property or Confidential Information.

 

These Standard Terms and the other documentation that comprises the Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

 

All notices, requests, consents, claims, demands, waivers and other communications under the Agreement must be in writing and to the other Party at its email address or address that the receiving Party may designate from time to time under the Agreement. Unless otherwise agreed, all notices may be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail, or email. Except as otherwise provided in the Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the applicable notice requirements.

 

If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify the Agreement to effect the original mutual intent of the Parties as reflected in the documents comprising the Agreement closely as possible in order that the transactions contemplated thereby be consummated as so originally contemplated to the greatest extent possible.

 

No amendment to or modification of or rescission, termination or discharge of the Agreement is effective unless it is in writing and signed by each Party.

 

No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Further, no extension of the Owner’s Property to mine Cryptocurrency beyond Owner’s Mining Period shall be deemed to create any precedent to provide for any such extension in the future. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

All rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

 

Owner shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of Provider. Provider may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under the Agreement. Any purported assignment, transfer, delegation or subcontract in violation of this paragraph shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Owner of any of its obligations hereunder.

 

The Agreement is binding on and inures to the benefit of the Parties to the Agreement and their respective permitted successors and permitted assigns.

 

The Agreement benefits solely the Parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

 

The Agreement, including all exhibits, schedules, attachments and appendices attached to the Agreement and thereto, and all matters arising out of or relating to the Agreement, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Travis County, Texas for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein to the extent not subject to binding arbitration as provided below, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such Party at the address in effect for notices to it under the Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either Party shall commence an action, suit or proceeding (including an arbitration, as provided below) to enforce any provisions of the Agreement, the prevailing Party in such action, suit or proceeding shall be reimbursed by the other Party for its reasonable attorneys’ fees and other costs and expenses incurred in connection with the investigation, preparation and prosecution of such action or proceeding unless the Parties have specific arrangement in that regard in a settlement thereof.

 

Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).

 

(a) The award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction. Judgment on the award shall be final and non-appealable.

 

(b) There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.

 

(c) The seat or place of arbitration shall be Austin, Texas. The arbitration shall be conducted and the award shall be rendered in the English language.

 

(d) The arbitrator will have no authority to award punitive damages, consequential damages, or compensatory damages, collectively, exceeding the aggregate amount of payments made by the Owner under the Agreement.

 

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THE AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THE AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

The Agreement Terms or any other document within the Agreement that is to be separately signed may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of any such document delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of such document.

 

Any delay or failure of Provider to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).