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Mining Software License 1.04

SXE M101 Mining End User License Agreement

This Mining License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement”), is a binding agreement between SXE Network Operations LLC, a Wyoming Limited Liability Corporation with offices located at 1621 Central Ave, Cheyenne, WY 82001 (”Licensor”) and the person or entity identified on the Order Form as the licensee of the Software (”Licensee”).

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LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON AND SUBMITTING PAYMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

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1. Definitions.

1. "Authorized User" means an employee or contractor of Licensee who Licensee permits to access and use the Software and/or Documentation pursuant to Licensee's license hereunder.

2. "Documentation" means Licensor's user manuals, white paper, and installation guides relating to the Software provided by Licensor to Licensee either electronically or in hard copy form relating to the Software available at www.shakticoin.com

3. "Software" means the product described on www.shakticoin.com and websites linked therein, including any Updates provided to Licensee pursuant to this Agreement.

4. “Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement.

5. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

6. “Term” has the meaning set forth in Section 11.

7. “Third Party” means any Person other than Licensee or Licensor.

8. “Updates" means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software. Updates may also include revised Documentation. Updates shall mean modifications to the Software requested by Licensee that add significant features to it, including new functionality, capabilities, services and links to Third Party Software, to be delivered by Licensor to Licensee.

 

2. License Grant and Scope.

Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

1. Download, and install in accordance with the Documentation one (1) copy of the Software on one (1) device owned or leased, and controlled by, Licensee. Each such device shall be for a single Authorized User. All copies and derivative works, including forks, of the Software made by the Licensee:

9. will be the exclusive property of the Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

(iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original; and

(iv) must adhere to the technical specifications and restrictions as defined in Annex 3 for the Power License selected by Licensee.

2. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.

3. Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith.

4. All copies of the Documentation made by Licensee:

10. will be the exclusive property of Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

(iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

 

3. Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses can be found on www.ShaktiCoin.com/en/miners/ and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

 

4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

1. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

2. modify, translate, adapt, fork, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

3. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

4. reverse engineer, disassemble, decompile, decode, or otherwise attempt to manipulate the source code of the Software or any part thereof;

5. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

6. except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;

7. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

8. use the Software or Documentation in violation of any law, regulation, or rule; or

9. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

 

5. Responsibility for Use of Software.

Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Licensee shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software and shall cause Authorized Users to comply with such provisions.

 

6. Compliance Measures.

The Software may contain technological protections or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. Licensee shall not modify, change or alter any portion of the Software or Documentation without the express written permission of Licensor. Any such modifications, changes or alterations, including improvements, shall be the property of Licensor, and Licensee shall assign any such rights it may have or acquire in such modifications, changes or alterations to Licensor.

 

7. Support.

This Agreement does not entitle Licensee to any support for the Software. During the period specified in Section 12, Licensor will make available to Licensee support services at the sole discretion of Licensor. Any maintenance and support services provided will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

 

8. Collection and Use of Information

1. Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

1. the provision of maintenance and support services; and

2. security measures included in the Software as described in Section 6.

2. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

1. improving the performance of the Software or developing Updates; and

2. verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

 

9. Intellectual Property Rights.

Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.

The Proof of Effort (PoE) mechanism is part of the "Software" as defined in 1(c). The PoE mechanism is open source software: you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation version GBL-3.0-or-later.

The PoE is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License at <https://www.gnu.org/licenses/> for more details.

 

10. Payment.

All License Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.

Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or other regulatory authority on any amounts due or owing by Licensee hereunder, other than any taxes imposed on Licensor's income.

11. Term and Termination.

1. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until terminated as set forth herein (the “Term”).

2.  Licensor may terminate this agreement, at its sole discretion, should Licensee cease to use any or all copies of the Software for a consecutive period of one hundred and eighty (180) days.

3. Licensee may terminate this Agreement by requesting a refund, as set forth in Section 12(a), within the first one hundred and twenty (120) days after the purchase of the license.

4. Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after Licensor provides written notice thereof.

5. Upon early termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Fees that may have become due before such termination, or entitle Licensee to any refund, in each case except as set forth in Section 12(c)(ii).

 

12. Limited Warranties and Warranty Disclaimer.

1. Licensor warrants that at the time of delivery, to the best of its knowledge, the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation. Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that, for a period of one hundred and twenty (120) days following the purchase date set forth on the Order Form, Licensor will refund the fees paid as described in 12(c)(ii). Any return of fees does not waive the Data Processing Agreement in Annex 2. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

2. The warranties set forth in Section 12(a) do not apply and become null and void if Licensee breaches any material provision of this Agreement, or if Licensee or any Authorized User, whether or not in violation of this Agreement: (i) modifies or creates derivatives of the Software; or (ii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.

3. If, during the period specified in Section 12(a), any Software fails to comply with the warranty in Section 12(a), and such failure is not excluded from warranty pursuant to Section 12(b), Licensor shall, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or (ii) refund the Fees paid for such Software, subject to Licensee's ceasing all use of the Software. If Licensor repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Licensee's sole remedies and Licensor's sole liability under the limited warranty set forth in Section 12(a).

4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

 

13. Indemnification.

Indemnification by Licensor. Licensee shall promptly notify Licensor in writing of any law suit, claim or other similar action, whether actual or threatened, for the use of the Software or Documentation and shall cooperate with Licensee in defending against any such law suit, claim or similar action. Licensor shall indemnify, hold harmless and defend Licensee and Authorized Users, at Licensor's expense, from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against (or are suffered or incurred by) Licensee or any such person by any third-party based upon infringement of a copyright, trade secret or similar proprietary right (each a “Infringement Claim”) arising out of Licensee’s use of the Software; provided, however that Licensor shall have no obligation to Licensee under this Section with respect to any Infringement Claim based solely upon Licensee's own content or modifications to the Software or Documentation. In the event an Infringement Claim is found by a court of competent jurisdiction to constitute an infringement and Licensee's use of the Software and/or Documentation (including without limitation its continued development activities or sale/licensing activities) is enjoined, Licensor shall, at its sole option, do one of the following: (i) procure for Licensee the right to continue use of the Software and Documentation (including without limitation its continued development activities or sale/licensing activities); or (ii) provide modifications to the affected Software so that its use (including continued development activities and sale/licensing activities) becomes non-infringing, or (iii) terminate the license. In no event will Licensor’s aggregate liability arising out of or related to this agreement exceed the total amounts from Licensee to Licensor under this agreement in the one (1) year period preceding the event giving rise to the claim.

 

Indemnification by Licensee. Licensee shall indemnify, hold harmless and defend Licensor and its members, managers, officers, directors, agents, employees, and affiliates, at Licensee’s expense from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against (or are suffered or incurred by) Licensor or any such person by any third-party based upon an Infringement Claim arising out of Licensee's content or modifications to the Software and/or Documentation.

 

14. Limitations of Liability.

IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS FROM LICEENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

LICENSOR SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, THE LOSS OF GOODWILL, DAMAGES FOR LOST BUSINESS, PROFITS, OR DATA RESULTING FROM THE USE OR INABILITY TO USE THE SOFTWARE, THE DOCUMENTATION, THE TOOLS, OR THE SERVICES, OR FROM ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR COMMUNICATIONS, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS INCURRED BY LICENSEE, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE UNDER THIS AGREEMENT.

 

15. Export Regulation.

The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US. Any export, re-export, or release of the Software or Documentation that is prohibited by law, rule, or regulation, shall be a basis for the Licensor to terminate this agreement immediately.

16. US Government Rights.

The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

17. Confidentiality.

During the term of this Agreement, Licensee may acquire or access “Confidential Information” about Licensor, its operations, the Software (and code) and Documentation. Licensee expressly agrees that it shall not use Confidential Information in the development of any products or services for its own account or for the account of a third party unless expressly agreed to by Licensor in writing. Further, Licensee agrees not to use the Confidential Information for purposes other than that necessary to execute its obligations under this Agreement. Licensee shall protect the Confidential Information by using the same degree of care as the Licensee uses to protect its own Confidential Information, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information. Licensee shall limit its internal disclosure of the Confidential Information only to those employees and agents who have a need to know the information for the limited purpose of executing Licensee’s obligations under this Agreement.

Such “Confidential Information” shall include, but is not limited to, identities of other Third Party SXE Network participants information acquired from employees; trade secrets; strategic plans; invention plans and disclosures; customer information; banking and financial information; suppliers; software; distribution channels; marketing studies; intellectual property; information relating to process and products, designs, business plans, business opportunities, marketing plans, business contacts, finances, research, development, know-how or personnel; confidential information originally received from third parties; information relating to any type of technology, and all other material. In addition, the existence and terms of this Agreement shall also be treated as Confidential Information.

18. Miscellaneous.

1. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Wyoming without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Wyoming in each case located in the City of Cheyenne and County of Laramie, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

2. Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to an event of force majeure which shall include strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, change of law or regulations, or any other circumstances or causes beyond Licensor’s reasonable control.

3. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 18(c)).

4. This Agreement, together with the Order Form and all annexes and exhibits attached hereto, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

5. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 18(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

6. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

7. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this 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.

8. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

9. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Annexes referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

10. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

 

 

 

 

 

 

 

 

 

 

ANNEX 1

AUTHORIZED USER TERMS OF USE

These Software Terms of Use (”Terms of Use”) govern your use of the SXE Mining software (the “Software”), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the “Documentation”) provided to you (”you” or “your”) for use pursuant to and subject to a software license agreement (the “Software License Agreement”) between SXE Network Operations, LLC (”Licensor”) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed (”Licensee”).

 

BY CLICKING THE “ACCEPT” BUTTON YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT CLICK THE “ACCEPT” BUTTON AND YOU WILL HAVE NO LICENSE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.

 

1. License Grant. Subject to your strict compliance with these Terms of Use, Licensor hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software solely in accordance with the Documentation, as installed on the equipment provided by Licensee and for Licensee’s internal business purposes. The foregoing license will terminate immediately on the earlier to occur of:

(a) the expiration or earlier termination of the Software License Agreement between Licensor and Licensee; or

(b) your ceasing to be authorized by Licensee to use the Software for any or no reason.

 

2. Use Restrictions. You shall not, directly or indirectly:

(a) use the Software or Documentation except as set forth in Section 1;

(b) copy the Software or Documentation, in whole or in part;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;

(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;

(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

(h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

(i) power generation systems;

(ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;

(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and

(iv) military or aerospace applications, weapons systems, or environments.

(i) use the Software or Documentation in violation of any law, regulation, or rule; or

(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

 

3. Collection and Use of Information.

(a) Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, by means of (i) providing maintenance and support services and (ii) security measures included in the Software as described in Section 3.

(b) You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and verifying compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Software.

 

5. Intellectual Property Rights. You acknowledge that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to the Licensee in this Agreement. You shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.

 

6. Disclaimer of Liability. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE PURSUANT TO THE SOFTWARE LICENSE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.

 

7. Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

 

8. Governing Law. These Terms of Use are governed by and construed in accordance with the internal laws of the State of Wyoming without giving effect to any choice or conflict of law provision or rule (whether of the State of Wyoming or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Wyoming.

 

ANNEX 2

DATA PROCESSOR AGREEMENT

DEFINITIONS:

For the purposes of this Agreement:

 

“Applicable Data Protection law” means any EU and Irish law which may apply to the terms of this Agreement and which may vary from time to time;

 

“Data Controller” and “Data Processor” shall have the meanings as set out in Article 4(7) and (8) respectively of EU General Data Protection Regulation 2016/679 (the “GDPR”);

 

“Data Protection Commissioner” (DPC) is the supervisory authority for the purposes of Article 51 of the GDPR;

 

“Data Subject” means an individual who is the subject of Personal Data;

 

“Personal Data” shall have the meaning set out in Article 4(1) of the GDPR;

 

“Prompt Notice” shall mean 24 hours unless otherwise expressly stated in this agreement;

 

“Special Category Data” shall have the meaning set out in Article 9(1) of the GDPR;

 

“Third Country” shall mean a location outside of the European Economic Area (EEA), the EEA being: Austria, Belgium, Bulgaria, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United Kingdom.

 

This Agreement, including these definitions and its recitals and schedules, only relates to the Agreement and does not incorporate commercial business terms established by the parties under separate commercial arrangements.

 

WHEREAS:

The Data Controller and the Data Processor acknowledge that for the purposes of the Applicable Data Protection Law (as amended) Licensor is the Data Controller and Licensee is the Data Processor in respect of any Personal Data.

 

The Data Controller and the Data Processor are parties to the Agreement for the provision described on the Order Form. In connection with the Service Agreement, certain Personal Data concerning Data Subjects (both as defined below) may be transferred from the Data Controller to the Data Processor. This Data Processor Agreement is intended to govern such transfers.

 

TERMS:

The parties agree that:

1.1 The Data Processor shall process Personal Data only for the purposes of carrying out their obligations arising under the Agreement.

1.2 The Data Controller shall instruct the Data Processor to process the Personal Data in any manner that may reasonably be required in order for the Data Processor to carry out the processing in compliance with this Agreement and in compliance with Applicable Data Protection law.

1.3 The details of the transfer and of the Personal Data are specified in the Documentation. The parties agree that the Documentation may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required by law.

1.4 This Data Processor Agreement shall continue for no less a term than the term of the Agreement.

1.5 The rights and obligations of the parties with respect to each other under this Data Processor Agreement shall survive any termination of the Agreement.

 

REGULATORY COMPLIANCE:

2. To the extent required by law or regulation:

2.1.1 The Data Processor shall co-operate with the DPC in connection with any

activities performed by the Data Processor;

2.1.2 The Data Processor shall give prompt notice to the Data Controller of any development that may have a material impact on the Data Processor’s ability to perform services effectively under this Agreement and in compliance with applicable laws and regulatory requirements.

 

OBLIGATIONS OF THE DATA CONTROLLER:

The Data Controller warrants and undertakes that:

3.1 The Personal Data has been collected, processed and transferred in accordance with the GDPR and all Applicable Data Protection law.

3.2 It has used reasonable efforts to determine that the Data Processor is able to satisfy its legal obligations under this Agreement.

3.3 It will respond to enquiries from Data Subjects and the DPC concerning processing of the Personal Data by the Data Controller, unless the parties have agreed that the Data Processor will so respond, in which case the Data Controller will still respond to the extent reasonably possible and with the information reasonably available to it if the Data Processor is unwilling or unable to respond. Responses will be made within a reasonable time and in accordance with the Applicable Data Protection law.

3.4 The Data Controller will not require the Data Processor to process data in a manner governed by Article 37(1) of the GDPR without first giving express notice.

3.5 It will make available, upon request, a copy of this Data Processor Agreement to Data Subjects who are relevant to the processing, the subject matter of this Data Processor Agreement, unless this Data Processor Agreement contains confidential information, in which case it may redact such information. The Data Controller shall abide by a decision of the DPC regarding access to the full text of this Data Processor Agreement by Data Subjects, as long as Data Subjects have agreed to respect the confidentiality of the confidential information removed. The Data Controller shall also provide a copy of this Data Processor Agreement to the DPC where required.

 

OBLIGATIONS OF THE DATA PROCESSOR:

The Data Processor warrants and undertakes that:

4.1 It will comply with all applicable law including Applicable Data Protection law in its performance of this Agreement.

4.2 It will only process the Personal Data on the instructions of the Data Controller.

4.3 It will not appoint sub-processors to process the Personal Data on its behalf without the prior written approval of the Data Controller.

4.4 Once approved by the Data Controllers, sub-processors will only process the Personal Data on the instructions of the Data Processor and the Data Processor will put in place a legal agreement in writing to govern the sub-processing.

4.5 It will have in place appropriate technical and organizational measures, and all measures pursuant to Article 32 of the GDPR, to protect the confidentiality of the Personal Data and to protect the Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.

4.6 It will obtain guarantees from any sub-processors processing the Personal Data, that they will have in place appropriate technical and organizational measures, and all measures pursuant to Article 32 of the GDPR, to protect the confidentiality of the Personal Data and to protect the Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.

4.7 It will have in place procedures so that any individual party it authorizes to have access to the Personal Data, including employees of the Data Processor, will respect and maintain the confidentiality and security of the Personal Data. Any person acting under the authority of the Data Processor shall be obligated to process the Personal Data only on instructions from the Data Processor. This provision does not apply to persons authorized or required by law or regulation to have access to the Personal Data.

4.8 It will not disclose any Personal Data to a third party in any circumstances other than at the specific written request of the Data Controller, unless such disclosure is necessary to fulfil the obligations of the Agreement or is required by applicable law.

4.9 It will notify the Data Controller of any request for information by the DPC and will not disclose any Personal Data without the prior consent of the Data Controller.

4.10 It will notify the Data Controller of any complaint, notice or communication received which relates directly or indirectly to the processing of the Personal Data, or other connected activities, or which relates directly or indirectly to the compliance of the Data Processor and/or the Data Controller with relevant applicable law including Applicable Data Protection law.

4.11 It will give the Data Controller prompt notice of a Personal Data breach or a potential data breach, once becoming aware of same, and the Data Processor will cooperate with the Data Controller in implementing any appropriate action concerning the breach or the potential breach as the case may be, including corrective actions.

4.12 It will delete from its systems all soft copies of any Personal Data and delete all soft and hard copy documentation on the completion of the Agreement or on request from the Data Controller and will do so in a timely manner, giving a written confirmation of same having been done. The only exception to this shall be where the Data Processor shall have a legitimate reason, which is confirmed by the Data Controller, to continue to process particular data or where it is legally required to maintain data records.

4.13 Without prejudice to other legal provisions concerning the Data Subject’s right to compensation and the liability of the parties generally, as well as legal provisions concerning fines and penalties, the Data Processor will carry full liability in the instance where it or its sub-processor is found to have infringed applicable law including Applicable Data Protection law through his processing of the Personal Data.

4.14 The Licensee has no reason to believe, at the time of entering into this Agreement, of the existence of any reason that would have a substantial adverse effect on the guarantees provided for under this Agreement, and it will inform the Data Controller (which will pass such notification on to the DPC where required) if it becomes aware of any such reason.

4.15 The Licensee is authorized to respond to enquiries concerning processing of the Personal Data, and will cooperate in good faith with the Data Controller, the Data Subject and the DPC concerning all such enquiries within a reasonable time.

 

 

 

ANNEX 3

MINING LICENSE RESTRICTIONS

 

These License Type Restrictions (”Restrictions”) govern your use of the SXE Mining software (the “Software”), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the “Documentation”) provided to you (”you” or “your”) for use pursuant to and subject to a software license agreement (the “Software License Agreement”) between SXE Network Operations, LLC (”Licensor”) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed (”Licensee”).

 

BY CLICKING THE “ACCEPT” BUTTON YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT CLICK THE “ACCEPT” BUTTON AND YOU WILL HAVE NO LICENSE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE. THE FOLLOWING LICENSES WILL BE SELECTED ON A FIRST COME, FIRST SERVED BASIS AND THE LICENSOR RESERVES THE RIGHT TO SELECT THE LICENSEE OF ITS CHOOSING.

 

1. T100 POWER MINING LICENSE

(i) The T100 Mining License must run the software from a Tier 1 (or higher) Certified Data Center and

(ii) be a validly registered business

2. T200 POWER MINING LICENSE

(i) The T200 Mining License must run the software from a Tier 2 (or higher) Certified Data Center and

(ii) be a validly registered business

3. T300 POWER MINING LICENSE

(i) The T300 Mining License must run the software from a Tier 3 (or higher) Certified Data Center and

(ii) be a validly registered business

4. T400 POWER MINING LICENSE

(i) The T400 Mining License must run the software from a Tier 4 Certified Data Center and

(ii) be a validly registered business