Krater Tech, Inc.
Master Services Agreement
This Master Services Agreement is entered into between Krater Tech, Inc. a Delaware corporation and having its registered address at 651 N Broad St, Suite 206, Middletown, DE 19709, USA (the “Company”), and the Customer ("Customer", and together with Company, the " Parties", and each, a "Party").
WHEREAS, the Company operates an online platform to provide computer and server colocation and cryptocurrency mining hosting services.
WHEREAS, Customer wishes to retain Company to provide the services (“ Services”) outlined in the attached Schedule 1 statement of work (“SOW”) incorporated by this reference, and any additional Services that may be outlined in a form substantially similar to Schedule 1.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
a) “Digital Asset” means any asset, cryptocurrency, virtual currency, digital currency, or digital commodity, including, without limitation, Bitcoin and Ethereum, which is based on the cryptographic protocol of a computer network that may be (i) centralized or decentralized; (ii) closed or open-source, and (iii) used as a medium of exchange and/or store of value.
b) “Hosting Facility” is a data center owned, leased, operated, or reserved by Company or the Company’s partners.
2. The Company Services and Responsibilities.
a) Company shall provide to Customer the Services outlined in one or more SOWs agreed by the Parties. The initial agreed SOW is attached hereto as Schedule 1. Additional SOW’s substantially in the same form as the SOW attached hereto shall be deemed accepted and incorporated into this Agreement only if signed by Customer and countersigned by the Company.
b) The Company shall provide the Services per the terms and subject to the conditions outlined in the relevant SOW and this Agreement and professionally and diligently consistent with industry standards and good business practice.
c) The Company shall not bear responsibility for any damage or operation deficiency to Customer Equipment that occurred due to customer errors. The Company shall not repair or reimburse the Customer for any damage or operation deficiencies to Customer Equipment.
d) The Company shall not bear responsibility for the operability of Customer Equipment, including the software unless the failure occurred through the willful acts of the Company.
3. Customer Obligations, Responsibilities; and Representation.
a) The Customer warrants that all the equipment for which the Services are delivered (“Customer Equipment”) is legally located in the country of the equipment site and that all the mandatory payments, fees, taxes, levies, etc. were paid as required in connection therewith. Should any breach of the effective law be discovered, the Customer shall assume the entire responsibility.
b) The customer shall comply with all applicable laws.
c) The security of the Customer’s account and any Digital Assets is solely the Customer’s responsibility. Customer shall notify Company if Customer suspects their account or Digital Assets have been hacked, stolen, accessed without authorization, or otherwise compromised. If the Company suspects any security violations have occurred related to a Customer account or Digital Assets, the Company may suspend access to the Customer account and hardware pending resolution. The company may cooperate with any government or legal investigation regarding any aspect of the Services.
d) Customer shall be solely responsible for installation, maintenance, configuration, connection, interconnection, and all other support in connection with all equipment and personal property to be used by Customer to access our platform and/or to receive and store their Digital Assets.
4. Fees and Expenses and Payment Obligations.
a) Fees and Expenses. In consideration of the provision of the Services and the rights granted to Customer under this Agreement, Customer shall pay the Company:
i. the fees set forth on the applicable SOW for the Services described on such SOW (the "Based Fee Services"), which amount shall be inclusive of any costs of materials or other expenses of the Company in providing such Services unless further provided in the applicable SOW; and
ii. The Company reserves the right to modify its rates upon notice. Customers may terminate the agreement immediately upon notice of a fee increase.
b) Payment. Customer agrees to pay the Company the fees indicated for the Service in applicable SOW. When payments begin, the Customer will be charged on a pre-pay basis and will cover the use of the Service for the period as indicated.
c) Renewal. Unless Customer terminates the Agreement per Section 5, Company will automatically renew Services for the period indicated in the SOW and the Customer authorizes the Company to collect the then-applicable fee for such Services (as well as any taxes) using any credit card or other payment mechanism the Company as on the record for the Customer.
d) Taxes and Fees. All fees payable by Customer under this Agreement are exclusive of any applicable sales, use, excise taxes, and other similar taxes and duties. The Customer shall be solely responsible for costs and expenses regarding the installation and removal of Customer equipment and all tariffs, taxes, shipping costs, or other expenses associated with shipping, importing, exporting, transporting, and returning Customer’s Equipment.
e) Invoice Disputes. Customer shall notify Company in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within 10 days from the Customer's receipt of such invoice. Customers will be deemed to have accepted all invoices for which Company does not receive timely notification. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
5. Term and termination.
A. Term. The term of this Agreement commences on the Effective Date and shall continue until terminated per this section (the " Term"). Upon any expiration or termination of the Service, the Company will provide Customer with written notice per Section 12 (f) of the date when Customer’s Equipment is ready to be removed from the Hosting Facility by the Customer.
B. Termination for Cause. Either Party may terminate this Agreement, effective upon written notice, to the other Party (the " Defaulting Party") if the Defaulting Party materially breaches this Agreement, and such breach is incapable of cure, or concerning a material breach capable of cure (other than a failure by Customer to make timely payments of undisputed invoices (a " Payment Failure"), the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
C. Termination without Cause. Parties may terminate this Agreement or any SOW on ninety (90) days before written notice to the other Party.
Effect of Termination.
i. The Termination of this Agreement or a SOW will not release either Party from any surviving liabilities or obligations.
ii. Upon termination of this Agreement or a SOW, the Company shall cease to provide all Services, and the Customer shall pay to the Company all fees and expenses due through the effective date of termination.
iii. Upon termination of this Agreement by the Customer, Customer will have twenty-four (24) hours to arrange the pick up of their equipment from the Hosting Facility. After twenty-four (24) hours, the Company will charge an equipment storage fee of USD 0.20 per equipment per day.
iv. The terminating party will use commercially reasonable efforts to notify the other party, which may be via email or telephone, of such suspension. The parties agree that they will have no liability whatsoever to the other for any damage, loss, expense, or cost resulting from such termination or suspension.
v. Upon termination of this Agreement, in the event of the Customers default, the Customer agrees to immediately pay to the Company all amounts then owed. If the Customer fails to make such payments, the Company shall have the right to (i) sell or retain possession of Customer’s Equipment; (ii) reconfigure Customer’s Equipment for the Company’s use, or (iii) remove and store at Customer’s expense, all or any portion of Customer’s Equipment without any costs, obligation or liability by the Company.
6.Representations, warranties, and certain covenants.
a) Company represents and warrants that the services: (1) conform in all material respects with the specifications contained in this Agreement or a related SOW; (2) are performed in accordance with the then prevailing applicable laws; and (3) are performed in a prompt, diligent and professional manner consistent with industry standards and practices
b) THE COMPANY MAKES NO WARRANTIES OR GUARANTEES RELATED TO THE AVAILABILITY OF SERVICE OR THE OPERATING TEMPERATURE OF THE HOSTING FACILITY. THE SERVICE AND THE HOSTING FACILITY PROVIDED BY THE COMPANY IS PROVIDED “AS IS”. THE COMPANY DOES NOT PROVIDE MECHANICAL COOLING OR BACKUP POWER AND THE HOSTING FACILITY IS SUBJECT TO SWINGS IN LOCAL TEMPERATURE, WIND, HUMIDITY, ETC. THE COMPANY MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY AGAINST INTERFERENCE; OR (IV) PRICE OR LIQUIDITY OF ANY DIGITAL ASSET. THE COMPANY DOES NOT WARRANT THAT (I) THE SERVICE SHALL BE AVAILABLE 24/7 OR FREE FROM MINOR INTERRUPTIONS; (II) THE SERVICE SHALL MEET THE CUSTOMER REQUIREMENTS OTHER THAN AS SET OUT IN WRITTEN AGREEMENT BETWEEN THE PARTIES; (C) THE SERVICE SHALL PROVIDE ANY FUNCTION NOT DESIGNATED IN WRITTEN AGREEMENT BETWEEN THE PARTIES.
Customer agrees to indemnify, release, defend and hold harmless the Company and its directors, officers, agents and employees (collectively, the “Company parties”) from any claims, causes of action, demands, recoveries, losses, damages (actual and consequential), fines, penalties and other costs or expenses, of any kind or nature, including but not limited to reasonable legal and accounting fees (collectively, the “claims”), known and unknown, arising out of or in any way connected with such disputes, including, without limitation, disputes arising over breach of this agreement, breach of any separate agreement or transaction, and/or the substitution of units. Further, you hereby agree to indemnify, release, defend and hold harmless the Company parties from any claims brought as a result of your (1) breach of the terms, (2) violation of any law or the rights of a third party, and (3) use of the Services.
8. Limitation of Liability.
IN NO EVENT WILL COMPANY ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR AFFILIATES BE LIABLE TO ANY PARTY FOR:
a) ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE, DAMAGES ARISING OUT OF THE USE, AVAILABILITY OR UNAVAILABILITY OF THE SERVICES (INCLUDING BUT NOT LIMITED TO THE UNAVAILABILITY OR CHANGE IN ADVERTISED SERVICES) OR ANY OTHER SERVICES OR GOODS OBTAINED THROUGH USE OF ANY OF THE FOREGOING, OR ANY DATA TRANSMITTED THROUGH THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
i. ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
ii. ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
iii. ANY CHANGES WHICH COMPANY MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
b) ANY BODILY INJURY, DEATH, OR PROPERTY DAMAGE THAT MAY OCCUR AS THE RESULT OF SERVICES.
c) NOTWITHSTANDING THE TERMS, IN NO EVENT SHALL COMPANY BE HELD LIABLE, FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
a) From time to time during the Term, either Party (as the " Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, designated or otherwise identified as "confidential" (collectively, "Confidential Information").
b) Confidential Information does not include information that at the time of disclosure (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law.
c) The Receiving Party shall, for five (5) years from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives.
d) On the expiration or earlier termination of this Agreement at the Disclosing Party's written request, the Receiving Party and its representatives shall promptly return or destroy as may be requested all Confidential Information and copies thereof that it has received under this Agreement.
11. Equitable Remedies. 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.
a) Governing Law. The validity, interpretation, construction, and performance of this Agreement, and all acts and transactions are pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed, and interpreted per the laws of the state Delaware, without giving effect to principles of conflicts of law.
b) Dispute Resolution.Except for injunctive relief, the Parties agree to work together in good faith to resolve any disputes before initiation of any legal procedure. Each Party will reasonably provide the other with information and documentation to substantiate its position concerning the dispute. If the dispute has not been resolved through the mutual dispute resolution process, the Parties may agree to settle the dispute by mediation conducted by a mutually agreeable mediator in a mutually agreed location.
c) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings, and agreements, whether oral or written, between them, relating to the subject matter hereof.
d) Changes. The Company reserves the right to modify these terms at any time and modified terms are effective upon sending the changes to the Customer email. Customer’s continued use of or access to the Service following the notice of any changes to this Agreement constitutes acceptance of those changes. The Company may also, in the future, offer new services and/or features including the release of new tools and resources. Such new features and/or services shall be subject to the terms and conditions of this Agreement.
e) Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators, and legal representatives. The Company may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.
f) Notices. Any notice required or permitted under this Agreement will be considered delivered: (i) when delivered by hand to the Party to be notified, (ii) when received via electronic mail provided that the sender has received confirmation of receipt of such electronic transmission; (iii) on the next business day after being sent by reputable overnight courier service for next business day delivery to the Party to be notified, or (iv) on the third business day after being sent by prepaid United States mail, return receipt requested to the Party to be notified, in each case to the applicable address specified as follows:
If to Krater:
Krater Tech Inc.
651 N Broad St, Suite 206, Middletown, DE 19709, USA
The failure to provide notice as specified in this Section will be considered a breach only if that failure materially prejudices the other Party.
g) Force Majeure Events. Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, epidemic or pandemic, or any other event that is beyond the control of the Party in question. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs because of force majeure. The parties shall mutually seek a resolution of the delay or the failure to perform as noted above. Should the Force Majeure continue for over three (3) months, either Party may send a written notice to the other Party to inform them about unilateral refusal to perform under the Agreement and termination of this Agreement.
h) Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other forms of joint enterprise, employment, or fiduciary relationship between the Parties. The company is an independent contractor under this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other Party to any contract, agreement, or undertaking with any third party.
i) Severability. If one or more of the provisions in this Agreement are deemed void or unenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected.
j) Attorney Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees.
k) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
l) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute the same agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an original, and a facsimile or scanned signature will be deemed an original and valid signature.
m) Electronic Delivery. The Parties agree that this Agreement may be signed digitally or electronically. Each party agrees that any digital or electronic signature is the legal equivalent of a manual signature on this Agreement and further agrees that its use of a keypad, mouse, or other devices to sign or select an item, button, icon, or similar act/action, or in accessing or making any transaction regarding consent to the agreement which is validated through a certification authority or other third party verification method, constitutes a signature (hereafter referred to as "E-Signature"), acceptance and agreement as if signed by a party in writing. The exchange of copies of this Agreement, inclusive of manual and E-Signature pages, by facsimile transmission, by electronic mail in "portable document format" (".pdf" format), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in place of an original Agreement for all purposes.
STATEMENT OF WORK
This Statement of Work ("Statement of Work") effective on a specific date (“Statement of Work Effective Date”), is by and between Krater Tech, Inc. (the "Company") and the Customer (the "Customer") and made pursuant to that certain Master Services Agreement, executed between the Parties on the specified date (the “Agreement"). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Agreement.
1. Services to be Provided: Company shall perform Services selected below:
● Initial co-location of the Customer Equipment in the Company’s Hosting Facility and initial Equipment setup The Company has the full discretion to accept or reject any Customer’s Equipment. Upon receipt of Customer’s Equipment, the Company shall have functioning Customer Equipment installed in the Hosting Facility and make commercially reasonable efforts to begin providing Services on the scheduled service commencement date; provided, however, that the Company shall not be responsible for any delay in the date Services begin for any reason, including delay in receipt of Customer’s Equipment, Force Majeure Events, lack of available rack space, or electrical or network connectivity problems.
● Connection of the Customer Equipment to the electric grids
● Customer Equipment maintenance and operability support - as the Company deems necessary or desirable concerning the Hosting Facility and maintain network
● Technical support for the Customer Equipment. The Customer acknowledges and agrees that performance of maintenance may cause the network to be temporarily inaccessible and the Services may temporarily become unavailable. The Company shall use commercially reasonable efforts to conduct such maintenance in a manner to avoid or minimize the unavailability of the Services. If scheduled maintenance is expected to interrupt the availability of Services, the Company may give the Customer notice before conducting such maintenance, identifying the time and anticipated duration. The Company shall use commercially reasonable efforts to make the Services available to the Customer, except in the event of maintenance, Client Equipment failure, or Force Majeure Events.
● Connection of the Customer equipment to the internet to enable the Customer to remotely access its equipment via the virtual private network. The Customer shall provide all end-user equipment, software, and all other telecommunications, internet access, and related equipment that the Customer deems necessary or desirable for his receipt of Digital Assets.
● Ensuring the integrity and security of the Customer Equipment. The Customer shall keep his Digital Assets, including his private key, secure. The Company does not provide, and the Customer shall hold Company harmless from, the user or access security concerning any of Customer’s Equipment or the Hosting Facility, and shall be solely responsible for user access security and network access to Customer Equipment. The Company does not provide any service to detect or identify any security breach of Customer Equipment or the Hosting Facility. The Company does not provide any tests employing tools and techniques intended to gain unauthorized access to Customer Equipment or Customer personal property.
● Equipment repair per the price list which is in effect on the date of the Additional Service delivery. The Company will not be responsible for any damage or operation deficiency of Customer Equipment and the Company will not repair or reimburse the Customer in any form.
2.SOW Term: The period of performance of the Services shall commence on a specified date and end on the specified date (“ SOW Term”).
2. Service Delivery:
(a) In the course of the Services delivery, the Company shall ensure compliance with the following conditions concerning the Customer Equipment:
i. Continuous (24/7) presence of the technical personnel in the Hosting Facility to rectify any potential issues in the equipment operation associated with the delivery of Services;
(a) The company will provide monitoring of the following:
● Power Consumption
(b) The company shall provide for at least two independent internet connections in the Hosting Facility with a speed of 100 Mbps via fiber optic cables.
(c) The Customer understands and agrees that the use of telecommunications and data communications networks and the internet may not be secure and that connection to and transmission of data and information over the internet and such facilities provide the opportunity for unauthorized access to wallets, computer systems, networks and all data stored therein. Information and data transmitted through the internet or stored on any equipment through which internet information is transmitted may not remain confidential and we do not make any representation or warranty regarding privacy, security, authenticity, and non-corruption or destruction of any such information. The Company does not warrant that the Services or the Customer use will be uninterrupted, error-free, or secure. The Company shall not be responsible for any adverse consequence or loss whatsoever to Customer use of the Services or the internet. Use of any information transmitted or obtained by the Customer from the Company is at the Customer's own risk.
(d) Services delivery location:
i. For delivery of the Services hereunder, the Company shall locate the Customer equipment in the Hosting Facility for the term of this Agreement. The Customer shall not be granted any property rights to the Hosting Facility or parts thereof, any right to the exclusive use of the Hosting Facility or any part thereof, any lease or sublease rights to the Hosting Facility or part thereof.
ii. The company shall determine the specific location of the Customer’s equipment at its discretion. The Customer’s equipment may be relocated from the initial installation point at the Customer’s discretion and without separate coordination with the Customer, including relocation to the containers outside the Hosting Facility building or relocation to another data center.
(a) Pre-Payment . The Company will calculate the pre-payment using the following methods:
a. For the first pre-payment until the monitoring data of one month is available:
i. Using the theoretical power consumption as given by the manufacturer of the machine plus 5% multiplied by the number of hours in the month (730h/month).
ii. If a table of wall measurements exists previously for the model in question, then this table will be used. To calculate 1.a.
b. For the rest of the pre-payments the energy consumption is calculated:
i. Directly from the machine via API: If a machine provides consumption data via API, this data will be used plus 3% as security.
ii. Based on consumption tables and frequency and voltage: If a machine does not provide power consumption data via API but provides frequency and voltage of Chips/Hashboards: The consumption is calculated by using tables obtained for the specific model by measuring wall plug consumption of several machines. Then consumption will be derived from the frequency of the chips/hashboard and the voltage on the chips/hashboard to calculate the consumption. Hashrate is not ideal for calculating consumption as chips with different efficiency will consume equally but produce different hashrates.
iii. Based on consumption tables and Hashrate*Watts: If a machine doesn’t provide Voltage and Frequency data via API, then Hashrate will be the last resort used to measure consumption based on tables of watts obtained from measuring the consumption of different machines and the consumption of the machine at idle.
(b) Based Fee Services. The price of the Services to be delivered by the Company to the Customer shall be calculated based on the scope of the electric power consumed by the Customer Equipment and shall be in USD as outlined in the “Pricing” section on the website. The pricing may vary based on the location of the facility.