These Platform Terms and Conditions (“T&Cs”) and any Subscriber Registration Form incorporating these T&Cs (collectively, the “Agreement”) are entered into between Krater Tech, Inc. (“Krater,” “we,” and “our”) and the subscriber including its authorized users (“Subscriber” or “you” or “your”) identified on the Subscriber Registration Form or as otherwise provided when you subscribe to the Services (each a “Party” and collectively the “Parties”). Capitalized terms used but not defined in these T&Cs shall have the meanings given elsewhere in the Agreement.
Krater offers digital asset mining services, including access to and use of Krater’s technology platform (e.g., website, mobile application) (“Platform”), know-how, and other services and technology, including access to an online digital asset marketplace (“Marketplace”) (collectively, the “Services”) to promote transparency and connect market participants and stakeholders, including, crypto miners (“Mining Users”), mining farms (“Providers”), and mining hardware, licensors, lessors or sellers (“Sellers”) in connection with the Services, Subscriber may be a Mining User, Provider, or Seller, and interact with other subscribers who are one of the foregoing. Subject to any restrictions herein or as set forth in our policies, guides, and manuals as updated and amended from time to time (“Documentation”), Krater grants Subscriber, a limited, non-exclusive, nontransferable right for Subscriber to access and use the Services in accordance with the Agreement and Documentation. The Services are made available to Subscriber via a portal. Subscriber shall (a) be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal, (b) be responsible for its, and its authorized users’, use and decisions relating to the Services, including Marketplace transactions, (c) prevent unauthorized access to or use of the Services, nor disclose Krater IP, and notify Krater promptly of any such unauthorized access or use, and (d) use the Services only in accordance with applicable laws and Documentation. All rights not expressly granted to Subscriber are reserved by Krater (and its licensors). There are no implied rights granted by Krater.
2.1 Subscriber’s Use. By establishing an Account, and/or accessing the Services, Subscriber represents and warrants that: (a) Subscriber is legally permitted to use the Services in all applicable jurisdictions, including accessing and using any Krater IP, (b) Subscriber will not (or attempt to) purchase, sell, rent, or give away its Account, or create an Account using a false identity or information, (c) Subscriber will not engage directly or indirectly, in any transaction that is fraudulent or prohibited by law or regulation with the Services, (d) Subscriber will not resell, lease, distribute, transfer, or otherwise make available the Services on a time-sharing or service bureau basis, (e) Subscriber will not decompile, disassemble, or reverse engineer the Services, in whole or in part, (f) Subscriber will not use or reference the Services to develop or offer a competing service or product, and (g) Subscriber will not make the Services available to any third-party other than as contemplated by the Agreement.
2.2 Compliance. Subscriber agrees that offerings and activities in connection with the Services or the Agreement, including without limitation, transacting in digital assets or making available Services that allow for the transaction of digital assets, may be regulated by international, federal, state and local laws, rules and regulations, including without limitation the United States (“US”) Securities Act of 1933 and the US Securities Exchange Act of 1934, as amended. Subscriber will comply with applicable laws, rules, and regulations in connection with Subscriber’s use of the Services, including any transactions offered, facilitated or processed in connection with the Services. Subscriber is not acting, directly or indirectly, on behalf of persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the US Treasury Department’s Office of Foreign Asset Control (“OFAC”). Subscriber agrees not to access, download, or use the Services from any country in which such access, download, or use is prohibited by applicable law or regulation.
2.3 Third-Party Services and Other Subscribers. The Services may assist Subscriber in buying, selling, or using certain third party products or services or in transactions with other subscribers. Krater does not endorse, warrant, or guarantee any third party or any third party’s products or services, including those offered or described in the Marketplace. Krater is not responsible for, nor possesses any control over, such third parties or their products or services. Subscriber is solely responsible for the transactions it elects to make in the Marketplace and understands and agrees that Krater is not a party to such transaction even though Krater may receive a fee or commission for facilitating such transactions through the Marketplace as part of the Services.
In consideration for the rights granted, Subscriber will pay to Krater, without offset or deduction, the fees and expenses due under the Agreement, including as set out in the Subscriber Registration Form or the Documentation, as may be updated from time to time. Unless otherwise provided in the Subscriber Registration Form or the Documentation, fees are subject to change from time to time, including each Renewal Term. Subscriber hereby grants Krater the right to access Subscriber’s Wallet to determine, verify, and collect any fees and expenses owed, including the right to automatically deduct fees and expenses owed. The Parties agree that any fees or expenses not collected or incapable of collection through an automatic deduction of Subscriber’s Wallet will be due and payable upon demand. Fees may increase from time to time, including during each Renewal Term. Krater, in its sole discretion, may access Subscriber’s Wallet to verify the fees and expenses arising from completed transactions. The fees and other amounts payable by Subscriber to Krater do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, excluding only taxes based upon Krater’s net income. Subscriber will directly pay any such taxes assessed. Subscriber will indemnify, defend, and hold Krater and its affiliates harmless from any such taxes, fines, or interest that Subscriber is responsible under this Agreement or applicable law (except for taxes on Krater’s income). All fees and other amounts payable by Subscriber under the Agreement are non-refundable and noncancellable, except as otherwise expressly provided. In the event that Subscriber’s account is overdue, Krater will have the right, in addition to any other remedies under the Agreement or pursuant to applicable law, to suspend Subscriber’s use of the Services, without further notice to Subscriber, until Subscriber has paid the full balance owed, plus any interest due at the rate of 18% per annum.
Except for the limited personal information Subscriber provides to create an Account, Krater (or its licensors) own all right, title, and interest in and to (a) the Services and the “look and feel” of the Services, including all software, ideas, processes, data, text, media, and other content available on or arising from the Services; and (b) Krater Marks (collectively, “Krater IP”). Subscriber may not modify, duplicate, copy, reverse engineer, or reuse any portion of the Krater IP other than as permitted under these T&Cs without Krater’s prior express written consent.
To access and use the Services, Subscriber must establish an account (“Account”). To establish an Account, Subscriber will need to connect a digital wallet offered through a browser extension, which provides an in-browser interface and capabilities to execute instructions across multiple blockchain networks (the “Wallet”). The Wallet allows users to view balances for their digital collections and assets that are compatible with the Wallet, initiate transfers and transactions involving such digital collections and assets, and serves as an authenticating account to access the Services. By creating an Account, Subscriber (a) grants Krater the right to access Subscriber’s Wallet to determine, verify, and collect amounts due under this Agreement, (b) agrees to provide accurate, current, and complete information; (c) agrees to maintain and update the information you provide to Krater, as necessary; (d) agrees to maintain the security of your login credentials to your Account and accept all risks of unauthorized access to your Account; and (e) agrees to immediately notify Krater if you discover or otherwise suspect any security breaches related to your Account or the Services. You acknowledge and agree that Krater is not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Account.
6.1 Onboarding. Subscribers who are Providers may access and use the Services as such in accordance with the Agreement and Documentation, including the following: (a) each Provider hereby grants Krater access to its network and data for the limited purpose of onboarding the Provider; and (b) Provider agrees to comply with Krater’s reasonable requests and provide Krater with access to all documents and systems as may be reasonably necessary to access and use the Services.
6.2 Third-Party Users. Provider may permit its thirdparty customers or end users (“Third-Party Users”) to access certain functionality of the Services; provided that,Third-Party Users prior to any Third-Party User’s use of the Services, Provider shall enter into a written agreement with such Third-Party User, which agreement shall require the Third Party User to comply with applicable portions of these T&Cs and the Documentation. Krater may update these T&Cs and the Documentation from time to time, and Provider shall, and in accordance with any instructions from Krater, pass through any updates to such Third-Party User. Provider agrees to identify Krater as an express third-party beneficiary to any contractual agreement between Provider and any such Third-Party User relating to use of the Services to the extent necessary for Krater to enforce its rights and interests. Provider’s use of the Services, and provision of any support to Third-Party Users, including any agency managed services, in connection with the Agreement, shall at all times be in compliance with and subject to these T&Cs (including all terms applicable to Third-Party Users under such T&Cs). Provider shall immediately notify Krater if Provider becomes aware of or reasonably suspects any breach by any Third-Party User. Provider shall be responsible for the actions, omissions and obligations of any Third-Party User, including any breach of these T&Cs by a Third-Party User. Provider shall promptly notify Krater if Provider or any applicable Third-Party User terminates a Customer Agreement.
6.3 Krater Marks. Krater grants to Provider a revocable, non-exclusive, non-transferable, nonsublicensable, royalty-free right to use the trademarks, service marks, names, logos or other marketing collateral provided by Krater for use under the Agreement (the “Krater Marks”) solely for purposes of marketing and granting Third-Party Users the right to access the Services subject to the terms and conditions set forth herein. Provider shall comply with any written guidelines provided by Krater relating to appropriate use of the Krater Marks, as may be updated from time to time upon notice by Krater.
7.1 Marketplace. Subscribers (a) who are Sellers, or (b) who desire to review or accept offers from Sellers (e.g., Mining Users) may access and use the Marketplace to review, offer, facilitate peer-to-peer transactions (e.g., licensing, leasing or selling) relating to mining hardware. The terms of such transactions will be further specified in the Marketplace or such documentation provided by Krater to Subscriber. These transactions are by and between the identified Marketplace participants and facilitated by the Services. Krater may collect fees and commissions relating to such transactions, but is not responsible or liable for the acts or omissions of any Subscriber or Marketplace participant, their payment or performance obligations, or the benefits or losses associated with any transaction or hardware.
All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Krater’s confidential information includes the Services (and the data that is provided as part of the Services, but not any Subscriber provided data) and the pricing under the Agreement.
9.1. Term. The initial term of the Agreement is as set forth in the Subscriber Registration Form or as otherwise agreed to by the Parties (the “Initial Term”). The Agreement shall thereafter automatically renew for successive renewal terms, equal to the period of the Initial Term (each, a “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire not to renew prior to the end of the then-current Term. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Term” herein.
9.2. Termination. Either Party may terminate for the uncured material breach of the other Party or as expressly provided otherwise in the Agreement. Krater may suspend or terminate Subscriber’s access to the Services, in whole or in part, at any time in its sole discretion, with or without notice if (a) there is a change to any applicable laws, rules, or regulations that restrict or prohibit the offering of the Services or (b) Krater has a good faith concern that Subscriber’s use of the Services, including any offers or transactions arising from such use, (i) violates a court order or judicial decree, (ii) violates appliable laws, rules, or regulations, (iii) breaches the Agreement, or (iv) may result in unreasonable risk to Krater or other subscribers. Any terms and conditions, including without limitation payment obligations, disclaimers, and limitations of liability, will continue to apply after termination or expiration as necessary to give effect to the intent of the Agreement. Upon termination or expiration, Subscriber will cease using or accessing the Services and Krater IP and each Party will return or destroy the other Party’s Confidential Information in its possession or control.
10.1 Assumption of Risk. Subscriber agrees that cryptographic and decentralized computing technologies are evolving rapidly, and that the risks associated with deploying, transacting on and otherwise using such technologies may not be fully known and are also rapidly evolving, and hereby assumes such risks, known and unknown. The Services and Krater IP are designed to help mitigate such risks, however, Krater does not represent or warrant that the Services or Krater IP will fully mitigate such risks. Krater and its affiliates, and its and their officers, directors, employees, shareholders, contractors, attorneys, advisers and agents shall have no liability in connection with the risks of using such technologies.
10.2 Disclaimer. SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE OF THE SERVICES AND KRATER IP, INCLUDING ANY TRANSACTIONS ARISING FROM THE USE OF SUCH SERVICES AND KRATER IP. THE SERVICES ARE PROVIDED "AS IS" AND KRATER MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY, OR NONINFRINGEMENT. KRATER MAKES NO REPRESENTATIONS OR WARRANTIES, NOR WILL KRATER HAVE ANY LIABILITY WITH RESPECT TO, THE SECURITY OR VALUE OF DIGITAL ASSETS OR TRANSACTIONS OR RELATING TO THE SERVICES OR KRATER IP, OR THE ACCURACY THE SERVICES OR KRATER IP.
IN NO EVENT WILL KRATER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, REVENUE OR SAVINGS) ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR KRATER IP BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KRATER’S TOTAL LIABILITY UNDER THIS AGREEMENT OR RELATING TO THE SERVICES WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO KRATER DURING THE PRIOR TWELVE (12) MONTHS UNDER THE AGREEMENT.
The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed per the terms hereof and that the Parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
Subscriber shall indemnify, defend and hold harmless Krater including its affiliates and its and their officers, employees, and agents, against any and all loss, damage, or expense (including reasonable legal fees related to the defense of any claim) incurred as a result of any claim, action, or proceeding arising out of or related to: (a) Subscriber’s use or misuse of the Services, including any Marketplace transactions with other subscribers; (b) Subscriber’s actual or alleged violation of this Agreement; (c) Subscriber’s infringement or violation of any intellectual property, proprietary, or privacy rights of any third-party; (d) injury to person or property arising from Subscriber’s negligence, bad faith, willful misconduct, or reckless acts or omissions; or (e) Subscriber’s actual or alleged violation of applicable laws, rules, or regulation in connection with the Services, including any assets or transactions relating to the Services
The relationship between the Parties under the Agreement is that of independent contractors and not partners, joint venturers or agents. Subscriber may not assign the Agreement or its rights without the prior written approval of Krater. The Agreement states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of the Agreement. No waiver of any breach of the Agreement, will be effective unless in writing and signed by an authorized representative of both Parties. The Agreement may not be modified or amended without written agreement of the Parties. If any portion of any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, then such unenforceable portion of the provision will be deemed severed from the Agreement, the validity and enforceability of the remaining portion of the provision and the other provisions of the Agreement will not be affected or impaired, and the Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision. The Agreement will be construed and enforced in accordance with the laws of the State of New York excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws will not apply. Except with respect to Subscriber’s payment obligations, neither Party will be liable for, nor will either Party be considered in breach of the Agreement due to any failure to perform its obligations under the Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of data or supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care. Subscriber authorizes Krater to use Subscriber’s name in any routine list of Krater clients and as a reference. Krater may not use Subscriber’s name in any advertising or press release without the prior written consent of Subscriber.