Miner Marketplace Terms and Conditions

Introduction and Terms

1. These terms contain the agreement between the customerusing the Marketplace (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 Making the Marketplace available and any other services supplied to you.
2. When using the Marketplace, you may be either a buyer or seller of the Hardware (or a prospective buyer or seller by listing or viewing Hardware for sale on the Marketplace).
3. The Terms also constitute the contract between a buyer and seller of the Hardware and in this regard, we hold the benefit of these Terms on behalf of the seller and the buyer, but we are not a party to the contract for the sale of the Hardware.
4. Separate terms apply in relation to:
   • Your purchase of Hardware from us, and
   • Use of the services including hosting services and access to our portal and Site.
5. By entering into these Terms, you acknowledge and agree to the Terms and that you will comply with these Terms.
6. If you participate in the Marketplace as either a buyer or seller of any Hardware to be traded through the Marketplace operated by us, you also agree to be bound by these Terms.
7. These Terms also apply whenever you access our websites  himarienergy.com.au; www.himarienergy.comand www.himarienergy.io (the Site), regardless of how you access the Site, including the use of information services provided through this Site. Please read these Terms carefully before accessing or using the information and services available through the Site.

Your account

8. To use the Marketplace, you must create an Account on our Site and provide us with some of your personal information.
9. By creating an Account, you represent and warrant that you are at least 18 years of age.
10. 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.
11. Personal information you provide through the Site will be dealt with in accordance with our Privacy Policy.
12. You must keep your Account information up to date, accurate and complete.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 Marketplace

18. Himari Energy will operate a Marketplace which allows you (as a seller) to offer Hardware for sale and you (as a buyer) to purchase Hardware, and to review listings for the sale and purchase of the Hardware.

Your representations and obligations

19. You represent and warrant that:
    • All of the information provided by you to us is accurate and complete.
    • If you are a seller, the Hardware is in good operating condition and repair, is fit for the use to which it is being put and does not require management all repairs.
    • The use of the Hardware, receipt of the Mining Rewards and the performance of obligations under these Terms will not breach any applicable laws or other governmental requirements or require the consent of any third party.
    • All of the information you publish on the Marketplace regarding any Hardware is accurate and complete and not misleading or deceptive.
    • You will immediately notify us if any of the information referred to in clauses 1to 19.4 changes or ceases to be accurate and complete and not misleading or deceptive.
    • Any Hardware offered for sale on the Marketplace is located in our Hosting Facility.
    • Any Hardware offered for sale on the Marketplace is subject to a Hosting  Agreement with us for hosting services, and the balance of the term of that Hosting Agreement will be assigned to the buyer.
    • You are the sole legal and beneficial owner of any Hardware offered for sale on the Marketplace, free from any Security Interest (where you are a seller).
    • All sale and purchase of the Hardware conducted on the Marketplace will occur in accordance with these terms.
    • 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 Marketplaceis at your sole risk and responsibility.
    • You are aware of the potential risks of using the Marketplace.

Services and charges

20. The seller must pay us the Sale Fee for any sale of Hardware on the Marketplace.
21. The seller authorises us to deduct the Sale Fee from the proceeds of the sale of Hardware. We will receive the sale price for the sale of any Hardware from the buyer on behalf of the seller, and we will pay the sale price (minus the Sale Fee) to the seller. Payment will generally be made within 5 business days, subject to all funds being cleared.
22. We will provide you with a tax invoice for the Sale
23. For any payments madeby credit card, we may reduce the amounts payable by any relevant surcharge that is charged to Himari Energy by the provider of the credit card.
24. Prices are in Australian dollars and include GST, except where specified otherwise.

Sale and purchase

25. When you enter into a transaction for the sale and purchase of Hardware you create a legally binding contract with another user. You must ensure that you comply with your obligations to that other user of the Marketplace and are aware of any laws relevant to you as a buyer or seller. If another member breaches any obligation to you, you (and not Himari Energy) are responsible for enforcing any rights that you may have.
26. We do own the Hardware at any time and do not transfer legal ownership of the Hardware from the seller to the buyer.
27. The seller is responsible for selling the Hardware to the buyer and the buyer must buy the Hardware from the seller at the Effective Time at the purchase price for the Hardware agreed between the buyer and the seller.
28. The Hardware will be sold to the buyer free from all Security Interests.
29. The buyer does not assume any liabilities of the Hardware other than to take an assignment or the balance of the term of the Hosting Agreement.
30. Title to, property in and risk of the Hardware remains with the seller until the Effective Time and passes to the buyer from the Effective Time.
31. The seller is entitled to the rights, benefits and income (including Mining Rewards) of the Hardware before the Effective Time and the buyer is entitled to the rights, benefits and income of the Hardware from the Effective Time.
32. The buyer must pay the seller an amount equal to the purchase price for the Hardware, which we receive on behalf of the seller as set out in clause 21.
33. At the Effective Time, the seller assigns and transfers to the buyer the right, title an interest of this seller in the Hosting Agreement, and we consent to that transfer.
34. The seller represents and warrants to the buyer that:
    • The seller is the legal and beneficial owner of the Hardware, free from any security interests.
    • All information provided by the seller in respect of the Hardware (including any performance figures) is true and accurate and not misleading or deceptive.
    • The seller has full power and authority to enter into and give effect to the sale and purchase of the Hardware.
    • The sale and purchase of the hardware does not breach any law, regulation or any other legal restriction which applies to the seller.
    • The seller is not subject to any Insolvency Event.
    • The Hardware is in good repair and condition (subject only to fair wear and tear) and in satisfactory working order.

Capacity

35. You acknowledge that the Marketplace is only a venue for youto exchange information and facilitate transactions.
36. We are not a broker or agent (other than as explicitly set out in these Terms for the receipt of funds on behalf of the seller). In particular we do not guarantee the condition or ownership of the Hardware or the information provided in the description of the Hardware.

Term and termination

37. These Terms may be terminatedby you giving us notice in writing at any time.
38. Any Marketplace transactions which have been confirmed must be completed under these Terms as if these Terms had not been terminated.
39. 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.
40. 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.
41. A party may terminate these Terms by notice to the other party if the other party is subject to an Insolvency Event.
42. If you terminate these Terms due to our default, you will not have any other claim against Himari Energy.

Intellectual Property

43. 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.
44. We may use information about the Hardware (including stock photos, descriptions and product specifications provided by third parties). You may use such content solely in collection with listings on the Marketplace, and while we try to offer reliable data, we do not represent that it will always be accurate or up to date.

Third Party Content & Links

45. 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

46. 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 Marketplace will:
    • be provided with due care and skill; and
    • be supplied within a reasonable time.
47. However, except as set out in clause 46, Himari Energy excludes all other rights, remedies, guarantees, conditions and warranties in respect of the Marketplacewhether 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.
48. Himari Energy takes no responsibility for your Hardware, and Himari Energy excludes all liability for loss of your Hardware.
49. You acknowledge and agree:
    • We do not in any way represent that a buyer of Hardware is financially capable of completing any sale transaction.
    • 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 and the cost of power may fluctuate and vary materially from any published or expected consumption levels, and this might have a material impact on the financial outcomes of owning the Hardware and any earnings from the Hardware.
    • 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.
50. 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 the Sale Fee actually paid by you.
51. 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 Marketplace.
52. 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:
    • 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.
53. 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.

Non circumvention

54. You must not seek to negotiate, communicate or transmit information in attempt to complete a sale of Hardware outside of the Marketplace
55. While we encourage active participation in the Marketplace and the mining industry, including between you as our members on the Site, there are some important restrictions to the use of the Marketplace and the Site for the protection of you and other users. For this reason, you must not:
    • Use theMarketplace or this Site to sell any Hardware or offer for sale any Hardware or other products, other than through our Marketplace.
    • Use the Marketplace or the Site to promote any other services (including financial services or mining services).
    • Publish any statements on social media (whether operated by us or any third party) related to any of the actions referred to in clauses 1and 55.2.
    • Publish any offer that is competitive with any goods or services supplied by us.
56. You acknowledge that operating our Marketplace is a critical part of our business. If you sell or endeavour to sell products to another member of our community other than via our Marketplace, you will be liable to us for any loss or damage we suffer. Further, we will not recognise any request to transfer ownership of the Hardware that occurs outside of the Marketplace, or as otherwise agreed by us from time to time.

Force Majeure

57. 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

58. The following definitions apply in these Terms.
59. Account means an account create by you on our Site as referred to in clause 8.
60. Effective Time means the time at which the transfer of the Hardware from the seller to the buyer which is the time at which we notify that the Hardware has been transferred from the seller’s account to the buyer’s account, which will generally be 48 hours after the transaction is agreed in the Marketplace.
61. GST means goods and services tax levied under A New Tax System (Software and Services Tax) Act 1999 (Cth) and related legislation.
62. Hardware means second hand cryptocurrency mining hardware that is offered for sale by the seller and hosted at the Hosting Facility, and following the Effective Time becomes the property of the buyer.
63. Hosting Agreement means the hosting agreement entered into by the seller, which is assigned to the buyer on and from the Effective Time.
64. Hosting Facility means any facility owned, leased or operated by Himari Energy and made available for hosting customer hardware from time to time.
65. 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.
66. Marketplace means an online market platform to allow the sale and purchase of Hardware and assisting completion of such transactions.
67. 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.
68. Sale Feemeans the fee published by us on the Site from time to time as the commission for the sale of any Hardware through the Marketplace.
69. Security Interest has the meaning set out in the Personal Property Securities Act 2009 (Cth).

General

70. 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.
71. 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.
72. Himari Energy may subcontract any of its obligations under these Terms without notice (but remains responsible to you for ensuring those obligations are met).
73. 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.
74. 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.
75. We may set off without any notice to you any amounts owed you to us under these Terms. You may not set off any amount you owe to us under these Terms.
76. 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.
77. 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.
78. 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

79. 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 at the Site.

Contact Us

80. You can contact us on info@himarienergy.com.au.