Hosting Services and Membership Terms

Introduction and Terms

1. These terms contain the agreement between the customer using the Services (referred to as you or your in these Terms) and Himari Energy Pty Ltd ABN 32 656 920 035 (referred to as Himari Energy, we, our or us in these Terms). These are our Terms in respect of the Services and any services supplied to you.
2. Separate terms apply in relation to:
   • Your purchase of Hardware from us, and
   • Use of the marketplace operated by us for the sale and purchase of second-hand hardware.
3. By entering into these Terms, you acknowledge and agree to the Terms and that you will comply with these Terms.
4. If you provide any Hardware to be hosted by us, you also agree to be bound by these Terms.
5. These Terms also apply whenever you access our website himarienergy.com.au; www.himarienergy.com and www.himarienergy.io (the Site), regardless of how you access the Site, including the use of information services provided through the Site. Please read these Terms carefully before accessing or using the information and services available through the Site.

Your account

6. To use the Services, you must create an Account on our Site and provide us with some of your personal information.
7. By creating an Account, you represent and warrant that you are at least 18 years of age.
8. To create an Account, you must provide:
   • your full name;
   • any entity name (and identifying number such as ABN), if your Account is on behalf of an entity;
   • your contact details including your first name, last name, email address and postal address;
   • your payment details; and
   • any other information we require to identify you or verify your Account.
9. Personal information you provide through the Site will be dealt with in accordance with our Privacy Policy.
10. You must keep your Account information up to date, accurate and complete.
11. You are responsible for any activity that occurs through your Account and you must not make your Account (or any passwords for your Account) available to anyone else.
12. You must set a password for use of the Site in accordance with any instructions provided on the Site. You must immediately notify us of any unauthorised use of your password or account, or any breach of security that will adversely impact your use of the Site.
13. You are at all times responsible for maintaining the confidentiality of your password and account. We have no liability for any loss or damage (including for unauthorized access to your account) where you fail to comply with your password obligations.
14. We reserve the right to do any of the following in relation to your use of the Site:
    • Suspend your use of the Site.
    • Permanently or temporarily prevent your access to the Site.
    • If you breach these Terms, immediately suspend or terminate your use of the Site and, at our option, take any appropriate legal action against you.
15. You must not:
    • Use the Site to impersonate any other person or entity.
    • Reverse engineer any code contained in the Site.
    • Publish any material using the Site which is sexist, racist, defamatory, obscene, threatening, pornographic or otherwise or which is in violation of our policies.
    • Launch any automated program or script, including web crawlers, bots, viruses or worms or any program which impairs the operation or performance of the Site.

The Services

16. Himari Energy will supply services to you (collectively referred to as the Services), which will include:
    • Hosting Services in respect of the Hardware.
    • Access to the portal and the Site operated by Himari Energy, together with the membership benefits available from time to time.
17. The Hosting Services will be supplied at the Hosting Facility nominated by us from time to time, subject to the payment of the Hosting Fee.
18. The access to the portal and the Site and membership benefits will be supplied by us in accordance with the details specified on the Site from time to time.
19. Further details of the Services may also be set out in any other proposal or other document provided by Himari Energy to you, or as otherwise agreed.

Your representations and obligations

20. You represent and warrant to Himari Energy that:
    • All of the information provided by you to us is accurate and complete.
    • You have not entered into these Terms in reliance on or as a result of any statement or any conduct of any kind or on behalf of any other person.
    • Entry into these terms does not and will not violate any other agreement to which you are bound, or any law, rule, regulation order or judgement applicable to you.
    • Onentry into these Terms, the obligations under these Terms will be valid, binding, and enforceable.
    • Your use of the Servicesis at your sole risk and responsibility.
    • You are aware of the potential risks of using the Services.

Services and charges

21. The Hosting Fees are as set out in the relevant proposal or other document provided by Himari Energy to you from time to time. You acknowledge that the Hosting Fees will vary from time to time, based on factors including the cost of electricity and other input costs, which may vary on a daily basis.
22. The membership fees are as set out on the Site from time to time.
23. We will provide you with a tax invoice for the Hosting Feeson or about the first day of each month. This must be paid on or before the 5^th business day of each month, unless an earlier date is specified on the invoice (in which case they must be paid by that earlier date), where payment may be made by:
    • directdebit from a bank account;
    • credit card;or
    • any other method agreed by us (which may include by cryptocurrency).
24. If you are paying by credit card, we may add any relevant surcharge that is charged to Himari Energy by the provider of the credit card.
25. If you are paying by cryptocurrency, the payment must be made within the time limit specified in any invoice for the relevant cryptocurrency amount, and the amount of cryptocurrency specified is only valid until the expiry of that time limit.
26. We may also charge you any dishonour fees incurred by us if your method of payment is unsuccessful.
27. Himari Energy may increas eany of the fixed fees and charges. To do so, we will give you at least 30 days’ prior notice in writing. Where Himari Energy has notified you of a fee increase, you authorise Himari Energy to increase any direct debits to your nominated account.
28. Prices are in Australian dollars and include GST, except where specified otherwise.
29. Your obligation to pay the fees and charges for the Services is absolute and unconditional and (without limitation) will continue even if the Hardware ceases to operate, is defective, damaged, lost, stolen or destroyed and you agree not to exercise or seek to exercise any right or claim to withhold payment or claim any deduction or setoff.
30. If any fees are not paid on the date of the invoice, in addition to interest that may be charged under clause 31, we may suspend provision of the Services until full payment is made.
31. You must pay to us on demand interest on any amounts due but unpaid under these Terms at the rate of 18% per annum, calculated on a daily basis from the date the relevant amount became due to the date of payment by you and compounded monthly. If a liability under these Terms becomes merged in a judgement or order or exists after your winding up, you, as an independent obligation, must pay interest on the amount of that liability from the date the liability becomes payable both before and after the judgement, order or winding up until it is paid, also at that rate.

Storage of your Hardware and Security Interest

32. We will store your Hardware at the Hosting Facility on the basis set out in these Terms. In particular, in supplying the Services, we acknowledge that:
    • We hold the Hardware as your bailee and agent.
    • We will use all reasonable endeavours to ensure the Hardware is stored in a way which clearly identifies the Hardware as your property.
    • We will use all reasonable endeavours to ensure the Hardware is properly stored with adequate security arrangements.
33. You may only enter the Hosting Facility with our prior consent. At all times you are in the Hosting Facility, you must follow all our reasonable instructions and signage.
34. You grant to us a Security Interest in and fixed charge over the Hardware as security for payment of the Hosting Fees. Without limiting the foregoing, the Security Interest and charge taken by us under these Terms extends to your present and after-acquired property including the Mining Rewards.
35. These terms constitute a first ranking Security Interest over the Hardware and nothing in these Terms is intended to subordinate our interest.
36. No provision of these Terms is to be construed as an agreement that a Security Interest under these Terms attaches at a later time than the time specified in section 19(2) of the PPSA.
37. We reserve the right in the event of your breach of these Terms to take possession of the Hardware, to keep or resell the Hardware, or to exercise any other rights or entitlements contained in the PPSA. In this regard, you agree that you are liable for any costs, losses, damages, expenses or other amounts incurred or suffered by us as a result of exercising our rights under these Terms, and you indemnify us against all such costs, losses, damages, expenses or other amounts incurred or suffered on demand.
38. You acknowledge that these Terms entitle us to register a Security Interest on the PPSR and you must not object to such registration. You must assist with the registration of the Security Interest, and if necessary, sign any documents to permit registration of the Security Interest on the PPSR.
39. You and we acknowledge and agree that sections 95, 96, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA do not apply to these Terms or any enforcement actions under these Terms.
40. You waive any right you may have under section 115 of the PPSA on enforcement and waive any rights you have to receive a verification statement.

Term and termination

41. The agreement contained in these Terms starts on the date of entry into these Terms and will remain in force for a minimum term of 12 months, subject to termination in accordance with these Terms.
42. These Terms may be terminated by you giving us at least 30 days’ notice in writing at any time, following the expiry of the initial minimum term of 12 months.
43. Within 30 days of the date of any increase in fees or charges from Himari Energy under clause 27, you may terminate these Terms by giving 30 days’ notice in writing, even if this is within the initial minimum term of 12 months.
44. If you fail to pay the fees under these Terms, then without limiting our other rights, we may suspend the provision of the Services until payment is received (including any interest) or terminate these Terms with immediate effect by giving written notice of termination.
45. If a party breaches these Terms, the other party may give written notice identifying the breach and requiring that it be rectified. If the breach is not rectified within 14 days, or is not capable of being rectified, the non-defaulting party may terminate these Terms by written notice to the defaulting party.
46. A party may terminate these Terms by notice to the other party if the other party is subject to an Insolvency Event.
47. If we terminate these Terms due to your breach or Insolvency Event, then in addition to any other amounts under these Terms, you must pay us the Early Termination Amount.
48. If you terminate these Terms due to our default, you will not have any other claim against Himari Energy.

Intellectual Property

49. All intellectual property in relation to content provided by Himari Energy belongs or is licensed to Himari Energy or its affiliates. You obtain no interest in that intellectual property. All content may be protected by Australian and international copyright and other intellectual property laws. You may not do anything which interferes with or breaches those laws or the intellectual property rights in the content.

Data

50. You acknowledge and agree that we may access all data related to the Hardware and its use by you (including performance of the Hardware), together with all information and data that you make available through the Site, or otherwise transfer to us. We may use this data (whether on its own or aggregated with other user’s data) for any purpose, including offering the Hardware for resale on the marketplace.
51. You acknowledge and agree that we own all data referred to in clause 49, and you hereby assign to us absolutely all your rights, title and interest in that data.
52. Clauses 49and 50 survive the termination of these terms.

Third Party Content & Links

53. The Site may include links to third party apps, websites and advertising which are not related to us and in relation to which we have no control or interest. The appearance of those links or advertising on the Site does not indicate any relationship between us and that third party or any endorsement by us of that third party, or their products or services. You should take appropriate action to ensure that your access to, and use of the Site and other websites is protected against, and free from viruses, worms, trojan horses and other harmful and destructive material.

Liability & Indemnity

54. Himari Energy does not exclude any rights, remedies, guarantees, conditions or warranties in respect of goods or services under the Competition and Consumer Act 2010(Cth) or equivalent State or Territory legislation which cannot be excluded, restricted or modified. In particular, Himari Energy guarantees that the Services will:
    • be provided with due care and skill; and
    • be supplied within a reasonable time.
55. However, except as set out in clause 53, Himari Energy excludes all other rights, remedies, guarantees, conditions and warranties in respect of the Services whether based in statute, common law or otherwise, to the extent permitted by law. To the fullest extent possible, Himari Energy has no responsibility or liability in relation to any loss or damage that you incur, except as set out in these Terms.
56. Himari Energy takes no responsibility for your Hardware, and Himari Energy excludes all liability for loss of your Hardware.
57. You acknowledge and agree:
    • You have not relied on our skill or judgment in selecting the Hardware or deciding to enter into these Terms.
    • You have taken your own advice as to the taxation, accounting and financial consequences of entering into these Terms, and have not relied on us in relation to any of those matters.
    • You have satisfied yourself as to the condition and suitability of the Hardware for its purposes, and you have not relied on us in deciding to enter into these Terms.
    • You are aware that the power consumption of the Hardware may fluctuate and vary materially from any published or expected consumption levels, and you are responsible for the amount of power consumed (forming part of the Hosting Fee) irrespective of any expected consumption levels.
    • You are aware that the cost of power may fluctuate materially and you are responsible for the power consumed by your Hardware irrespective of any changes to the cost of power.
    • We have not made any representation, warranty or undertaking about the condition or quality of any Hardware, its suitability or fitness for purpose, or any other feature, including expected performance and Mining Rewards.
    • You will, at your own cost, obtain insurance in relation to the Hardware and you acknowledge that the Hardware is at your risk and is not insured by us at the Hosting Facility.
    • You will, at your own cost, implement all necessary security arrangements (including in relation to cyber security) to protect your Hardware and any Mining Rewards, and we have no liability to you for any liability or loss associated with breach of those security arrangements.
    • To the greatest extent permitted by law, we are not liable for any indirect, consequential or economic loss or damage (including, without limitation, loss of profits or loss of any Mining Rewards) arising under or in connection with these Terms.
58. To the extent permitted by law, Himari Energy’s liability for any breach of a term or condition implied by law is limited at Himari Energy’s discretion:
    • if the breach relates to goods, replacing, repairing or supplying goods equivalent to those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or
    • if the breach relates to Services, resupplying, or paying the cost of resupplying, those services, up to a maximum of 12 months’ Hosting Fees if the breach relates to the Hosting Services or otherwise the fees for 12 months of the applicable Services supplied to you.
59. You indemnify Himari Energy and its affiliated companies, and each of their directors, officers, employees and agents against any action, claim, loss or expense which it incurs which arises from your use of the Services.
60. To the extent permitted by law, we have no responsibility for any loss or damage which you may directly or indirectly suffer in relation to:
    • The Services being interrupted or unavailable, and while we aim for an uptime of 95% at our Hosting Facilities, you acknowledge this may not be achieved in all circumstances.
    • Any unauthorised access to our Hosting Facilities or your Hardware.
    • Any loss or damage arising due to force majeure.
    • Any loss or damage arising from viruses, worms, trojan horses and other harmful and destructive materialor malicious actors.
61. Himari Energy may contract or arrange for third parties to provide the whole or part of the supply of the Services to you. You must not bring any claims or actions against such third parties. If you bring such a claim or action in breach of these Terms, you agree to indemnify us and the person against whom the claim or action is made against the consequences of that claim or action. You agree that in entering into these Terms, we are acting as the agent of and trustee for each of our employees, officers, agents and subcontractors, and each of these persons is deemed to be a party to the contract for the purpose of entitling each of them to enforce, have the benefit of and rely upon these Terms.

Force Majeure

62. If our performance or observance of any of our obligations to provide Services is prevented, restricted or affected by reason of a force majeure event (including strike, lock out, industrial dispute, raw material shortage, power shortage, breakdown of plant, transport or equipment or any other cause beyond our reasonable control), we may, in our absolute discretion give prompt notice of that cause to you. On delivery of that notice we are excused from such performance or observance to the extent of the relevant prevention, restriction or effect.

Definitions

63. The following definitions apply in these Terms.
64. Account means an account create by you on our Site as referred to in clause 6.
65. Break Costs means any costs or loss incurred by us or any person arising from any early termination of these Terms including, without limitation, any costs or loss arising from the cancellation, termination or alteration of any applicable arrangements.
66. Early Termination Amount means, as at the date of early termination of these Terms, any amounts then due but unpaid under these Terms, plus the payments which, but for the early termination, would have been payable by you under these terms and conditions as from the date of early termination to the end of the term, plus any applicable Break Costs, plus our administrative fee for early terminations prevailing from time to time, minus the amount by which we are able to mitigate our loss is a result of the early termination of these Terms.
67. GST means goods and services tax levied under A New Tax System (Software and Services Tax) Act 1999 (Cth) and related legislation.
68. Hardware means cryptocurrency mining hardware belonging to you that is hosted at the Hosting Facility.
69. Hosting Facility means any facility owned, leased or operated by Himari Energy and made available for hosting customer hardware from time to time.
70. Hosting Fee means the fees for hosting the Hardware as described clause 21.
71. Insolvency Event in relation to a person means anything that reasonably indicates that there is a significant risk that that person is or will become unable to pay its debts as they fall due. This includes any of the following:
    • A meeting of the person’s creditors being called or held.
    • An application is presented or an order is made for the sequestration of the person’s estate.
    • A step being taken to wind the person up.
    • A step being taken to have a receiver, receiver and manager, administrator, liquidator or provisional liquidator appointed to the person or any of its assets or such an appointment taking place.
    • The person entering into any type of agreement, composition or arrangement with, or assignment for, the benefit of all or any of its creditors.
    • The person ceases or threatens to cease to carry on its main business.
72. Mining Rewards means the digital asset, cryptocurrency, virtual currency, digital currency or digital commodity produced by the proof of work cryptographic protocol of a computer network and generated by your use of the Hardware.
73. PPSA means the Personal Property Securities Act 2009 (Cth).
74. PPSR means the Personal Property Securities Register.
75. Security Interest has the meaning set out in the PPSA.

General

76. These Terms are governed by and interpreted in accordance with the laws of New South Wales. You submit to the non-exclusive jurisdiction of the courts of New South Wales.  If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability will not affect the remainder of these Terms, which will continue in full force and effect.
77. Himari Energy may assign or transfer the benefit of these Terms to a person, firm or company at any time, by giving you 28 days’ notice in writing.
78. Himari Energy may subcontract any of its obligations under these Terms without notice (but remains responsible to you for ensuring those obligations are met).
79. If any part of these Terms is unenforceable, this will not affect the enforceability of any other part of the provision or any other provision deemed invalid, that part will be severed from these Terms and the remainder of these Terms will continue to be valid and enforceable.
80. Where these Terms are entered into by a person on your behalf(including a director or officer on behalf of a corporate entity), that person warrants that he or she has the authority and delegated power to enter into these Terms on your behalf.
81. We may set off without any notice to you any amounts owed by you to us under these Terms. You may not set off any amount you owe to us under these Terms.
82. Unless these Terms expressly provides otherwise, a party may give or withhold an approval or consent in that party’s absolute discretion and subject to any conditions determined by the party. A party is not obliged to give its reasons for giving or withholding a consent or approval or for giving a consent or approval subject to conditions. Where these Terms refer to a matter being to the ‘satisfaction’ of a party, this means to the satisfaction of that party in its absolute discretion.
83. Subject only to your rights under these Terms, we may assign, transfer or otherwise deal with all or any part of our rights or obligations under these Terms without your consent. You must not assign, transfer or otherwise deal with any of your rights under these Terms without our prior written consent.
84. These Terms contain everything the parties have agreed in relation to the subject matter it deals with. No party can rely on an earlier written document or anything said or done by or on behalf of another party before these Terms were entered into.

Privacy

85. The Himari Energy Privacy Statement forms part of these Terms. For an explanation of our practices and policies relating to the collection, use, and storage of information of users of the Site, users should refer to the Privacy Policy on our Site.

Contact Us

86. You can contact us on support@himarienergy.com.au.