Attached files
Exhibit
10.38
WESTMŸN TECHNOLOGY SERVICES, INC.
CAPITAL CRYPTO MINING AGREEMENT
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Agent
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INVESTVIEW, INC., a Nevada corporation and its wholly owned
subsidiary Kuvera LLC
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Customer
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Purchaser of the Mining Package
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Agent Agreement Term
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Five (5) year term plus 1,000 days or the operating lifetime of the
equipment, whichever is greater
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Payout Frequency
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Daily
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Mining Equipment
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GPU Mining Rigs - Proprietary Configuration
– described on
Schedule A attached hereto
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Mining Price
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60% of Retail Package Price
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THIS CAPITAL CRYPTO MINING SALES AGREEMENT, effective as of May 1,
2018 (this “Mining Agreement”), is entered into between
Agent (referenced above) and WestMÿn Technology Services,
Inc., a Delaware corporation having its Registered Office address
located at 3333 N. Digital Drive,
Suite 460, Lehi, Utah 84043 (“WestMÿn”), on the
terms set forth in this Mining Agreement. (Agent and WestMÿn
are collectively herein the “Parties” and individually
referred to herein as a “Party.”)
WHEREAS, WestMÿn currently maintains and operates computing,
colocation and network facilities in Iceland and Romania engaged in
mining cryptocurrencies;
WHEREAS, Agent desires to engage WestMÿn for purpose of mining
cryptocurrencies on its behalf, to include Coins (as defined at
Section 3), and WestMÿn agrees to sell, operate and maintain
the Mining Equipment for the Agent’s Customer for this
purpose in accordance with the terms and conditions set forth
herein.
1.
CRYPTO MINING SALE
Customer will pay the purchase price to the Agent and Agent agrees
to pay the Mining Price to WestMÿn, and, in exchange,
WestMÿn agrees to install, provision and reserve the Mining
Equipment in accordance with Schedule
A and, commencing upon receipt
of payment (the “Mining Commencement Date”), to sell
the Mining Equipment to Customer in accordance with the terms of
this Mining Agreement for the benefit of Customer. The Agent will
pay the mining price and a provisioning fee.
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2.
MINING SALE AGREEMENT VALUATION
WestMÿn represents and warrants that:
(i)
the
Term of this Agreement is at least seventy-five percent (75%) of
the estimated life of the Mining Equipment;
(ii)
the
Mining Price (which is the discounted present value of the monthly
payments during the Term) is at least ninety percent (90%) of the
fair market value of the Mining Equipment, but does not exceed the
Mining Equipment’s fair market value; and
(iii)
the
Mining Equipment is not anticipated to be obsolete at the
conclusion of this Mining Agreement.
3.
MINING TECHNOLOGY OPERATION
WestMÿn agrees that the Mining Equipment is dedicated to
Customer and WestMÿn shall operate and maintain the Mining
Equipment solely for the benefit of Customer and in a manner that
will maximize cryptocurrency (“Coin”) production (the
“Mining Operation Services”), which Coins shall be
mined only for the Customer. Upon such Coin production (the
“Mining Output”), WestMÿn will promptly transfer
all Payouts (as defined below) to the Customer’s designated
Wallet as provided in Section 4 below. The Mining Operation
Services shall include, without limitation:
(i)
maintaining
all Mining Equipment, facilities and relevant supplies in good
working order on behalf of Customer for maximum Mining Output,
including using its best efforts to achieve and maintain the Mining
Power identified above, and shall procure power, backup power,
colocation facilities and such additional equipment and facilities,
at its own cost, as shall be required from time to time in order to
operate the Mining Equipment in accordance with Schedule
A;
(ii)
using
its best efforts to cause the Mining Operation Services to be
conducted 24 hours a day, seven days a week for 365 days each
year;
(iii)
directing
Mining Output to maximize the production of Coins generated by the
Mining Equipment in the form of either Bitcoin or
“Altcoins.” “Altcoins” is a reference to
all cryptocurrencies other than Bitcoin, such as Ethereum or
Litecoin; and
(iv)
paying
for electricity consumption and actual and routine thirdparty
equipment maintenance expenses (“Mining Costs and
Expenses”); however, such Mining Costs and Expenses shall be
paid only from the Mining Output and not owed or due from Customer,
and such Mining Costs and Expenses shall not exceed USD $0.10 -
0.16 kw/h.
WestMÿn shall provide such Mining Operation Services (a) in
accordance with the terms of this Mining Agreement; (b) using
personnel of required skill, experience, and qualifications; (c) in
a timely, workmanlike, and professional manner; and (d) in
accordance with generally recognized industry standards in the
cryptocurrency mining field.
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Customers may choose which Coin to mine from the list of available
Coins provided by the Company. Once a Coin is chosen, Customer may
not change the mining option of that Coin, unless the Coin is no
longer profitable. If a Coin mined by a Customer is deemed no
longer profitable, meaning no money is being generated by way of
mining such Coin, and the Customer chooses to change the Coin
mined, there shall be a thirty (30) day grace period in which the
turn over to the new Coin of the Customer’s choice shall
occur. During this thirty (30) day grace period, no mining shall
occur for the Customer.
4.
CUSTOMER PAYOUTS
WestMÿn will utilize Coins generated from Customer’s
Mining Equipment to offset the Mining Costs and Expenses, and then
transmit all remaining Coins (the “Payout”) directly to
Customer via daily deposits to Customer’s wallet as
designated by Customer from time to time in writing
(“Wallet”), which deposit may take up to seventy-two
(72) hours from the date of Coin generation. Payouts may include
multiple types of Coins and WestMÿn reserves the right to
introduce different Altcoins utilizing the Mining Equipment, but in
a manner directed toward maximizing the coin payout to Customer.
WestMÿn reserves the right to make retroactive recalculations
to Customer’s Payouts in the case of any error or to correct
any mistake or discrepancy and shall simultaneously deliver to
Customer a corrected Payout Report detailing such recalculation and
describing the error, mistake or discrepancy, why it occurred and
the steps taken to correct the same. If a recalculation creates a
negative Customer balance, Payouts will resume when the
Customer’s negative balance is overcome.
5.
MINING INTERRUPTION
Agent and Customer acknowledges that the operation of the Mining
Equipment may be impacted by fault, error, malfunction, virus or
other occasions that interrupt such operations. WestMÿn will
use its best efforts to minimize and remedy such interruptions as
soon as possible; however, if mining becomes and remains
unprofitable for twenty-one consecutive days then this Mining
Agreement will be suspended until in WestMÿn’s good
faith judgment mining returns to profitability (the
“Suspension Period”). As soon as reasonably possible,
WestMÿn shall give written notice to Customer regarding the
suspension and stating the number of days the Suspension Period is
expected to continue. During the Suspension Period, Payouts will
also be temporarily stopped, but when mining returns to
profitability, the mining suspension will be lifted. In the event
of a Suspension Period, the Term shall also be suspended and
extended for the same number of days of the Suspension Period, and
upon resumption of mining, the Term will also resume.
Notwithstanding anything to the contrary contained in this Mining
Agreement, WestMÿn guarantees the operation of the Mining
Equipment for at least the Mining Power during the Term, as it may
be extended.
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6.
WALLET SECURITY
Customer is responsible for maintaining the confidentiality for and
integrity of its Wallet including its access information. Agent
must notify WestMÿn immediately if Customer’s Wallet
address has changed or if there is any other change, loss, fraud or
suspicion about Customer’s Wallet. WestMÿn will not be
held liable for any lost Wallet information or hacked Wallet, nor
any loss arising howsoever as a result including by theft or fraud,
not resulting from or caused by WestMÿn’s breach,
negligence or misconduct.
7.
LIABILITY LIMITATIONS
WestMÿn will not be liable in any amount for failure to
perform any obligation under the terms of this Mining Agreement if
that failure is caused by the occurrence of an event caused by the
Customer, or by a third-party as a result of Customer’s
actions. If any failure of performance by WestMÿn is due to
actions by a governmental entity, this agreement shall enter a
Suspension Period, and WestMÿn at its cost shall take
affirmative action to resolve the Suspension Period, including
through relocating Mining Equipment to another country or
jurisdiction.
To the maximum extent permitted by law, WestMÿn is excluded
from liability for any losses or damages which Customer may suffer,
whether the same are suffered directly or indirectly or are
immediate or consequential, which fall within any of the following
categories: (i) loss of cryptocurrency arising as a result of any
of Customer’s acts or omissions or any acts or omissions of
any third party under the control of Customer; and (ii) loss
arising out of or in connection with any of the
following:
(a)
any
defect or insecurity in any third-party systems used to store or
transmit cryptocurrency;
(b)
any
inaccurate or incomplete information provided by Customer,
including cryptocurrency wallet addresses;
(c)
any
changes to the regulatory, legislative or technical environment
applicable to cryptocurrencies;
(d)
the acts or omissions of any bank or provider of
banking services; or (e) any change in the value of
cryptocurrency.
WestMÿn does not offer any legal, financial, insurance, tax,
investment or associated advice. No third-party may claim to be an
intended beneficiary of this Mining Lease. WestMÿn shall not
be responsible for any damage, harm or loss to any third-party
(non-party to this Mining Agreement), including any loss, harm, or
damages resulting from Customer’s use, resale, sublease or
letting of Customer’s Mining Agreement.
8.
WARRANTIES
WestMÿn warrants to Agent and Customer that: (a) WestMÿn
is a corporation duly organized, validly existing and in good
standing under the laws of Delaware (b) WestMÿn has the right
to enter into this Mining Agreement, to grant the rights granted
herein and to perform fully all of its obligations in this Mining
Agreement; (c) WestMÿn is entering into this Mining Agreement
with Customer and the sale of the Mining Equipment to Customer and
its performance of the Mining Operation Services do not and will
not conflict with or result in any breach or default under any
other agreement to which WestMÿn is subject; (d) WestMÿn
has the required skill, experience and qualifications to perform
the Mining Operation Services, WestMÿn shall perform such
services in a professional and workmanlike manner in accordance
with generally recognized industry standards for similar services
and WestMÿn shall devote sufficient resources to ensure that
such services are performed in a timely and reliable manner; (e)
WestMÿn shall perform the Mining Operation Services in
compliance with all applicable federal, state and local laws and
regulations; and (f) WestMÿn is not aware of any claims,
proceedings, notices that could have an adverse impact on its
business or the equipment.
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9.
CONFIDENTIALITY
WestMÿn acknowledges that it will have access to information
that is treated as confidential and proprietary by Agent and
Customer, including, without limitation, the existence and terms of
this Mining Agreement, technology, account and wallet information,
investments, strategies, financial information, in each case
whether spoken, written, printed, electronic or in any other form
or medium (collectively, the “Confidential
Information”). WestMÿn agrees to treat all
Confidential
Information as strictly confidential, not to disclose Confidential
Information or permit it to be disclosed, in whole or part, to any
third party without the prior written consent of Customer in each
instance, and not to use any Confidential Information for any
purpose except as required in the performance of its obligations
under this Mining Agreement. WestMÿn shall notify Customer
immediately in the event WestMÿn becomes aware of any loss or
disclosure of any Confidential Information.
10.
AUDIT RIGHTS
WestMÿn shall maintain consistently applied, accurate, and
complete books, records, and other documents (including computer
files) to document the amount and calculations of, as applicable,
hash power performance, gross Coins generated, Mining Costs and
Expenses, and Payouts during the Term of this Mining Agreement.
During the Term, on reasonable request and during regular business
hours, Customer may at its own expense reasonably inspect, or have
its representatives inspect, the Mining Equipment and audit
WestMÿn’s books, records, and other documents as
necessary to verify compliance with the terms and conditions of
this Mining Agreement.
11.
GENERAL
(a)
This
Mining Agreement is subject to statutory and common-law consumer
rights and will not limit any rights Customer might have that
cannot be excluded under applicable law. These terms exclude and
therefore do not in any way limit WestMÿn’s liability
for negligence or representations or for any statutory liability
not capable of limitation.
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(b)
Sections
8, 9, 10, 11, 13, and 15 of this Mining Agreement will survive the
expiration or earlier termination of this Agreement, as well as any
other provision that, in order to give proper effect to its intent,
should survive such expiration or termination, will survive the
expiration or earlier termination of this Mining Agreement for the
period specified therein, or if nothing is specified for a period
of 24 months after such expiration or termination.
(c)
These
terms constitute the entire agreement between WestMÿn
and
Customer, to the exclusion of any other terms. Either Party’s
failure to enforce any term does not constitute such Party’s
waiver of that term.
(d)
WestMÿn
represents and warrants that its activities and operations comply
with the laws of Romania and Iceland and those jurisdictions where
the Mining Equipment is located and where WestMÿn is
operating; but WestMÿn makes no representations or warranties
as to whether WestMÿn’s services comply with the laws of
any jurisdiction Agnet may engage in the resale, sublease or
letting of Agent/Customer Mining rights.
(e)
Each
Party agrees to use commercially reasonable efforts to not violate
(i) any applicable anti-terrorism laws or (ii) engage in any
transaction, investment, undertaking or activity that conceals the
identity, source or destination of the proceeds from any category
of prohibited money-laundering offenses or (iii) permit any of its
respective affiliates to violate these laws or engage in these
actions.
(f)
Except
to the extent that, and only during that period, where WestMÿn
holds the Mining Price prior to applying such funds to mining
operations under this Mining Agreement (based on the number of days
remaining under the Term), no fiduciary relationship is formed by
or through this Agreement.
(g)
These
terms are subject to and interpreted in accordance with the laws of
Nevada. In the case of a conflict between translations of this
Mining Agreement, the English version will prevail.
(h)
In
the event of any dispute arising out of or in connection with this
Mining Agreement, the president or vice president of each Party
shall first attempt to resolve such matter within fifteen (15)
business days following the date a written notice of the dispute is
made by any Party. If the Parties are unable to resolve the dispute
within the foregoing time period, the matter shall be mediated (the
“Mediation”) within thirty (30) business days from the
date a written request for mediation is made by any Party. The
Mediation shall take place in either the State of Nevada or the
location of Agent’s domicile (as designated by Agent) if
brought by WestMÿn, in Nevada if brought by Agent, and shall
be in English. The Mediation shall be conducted before a single
mediator to be agreed upon by the Parties. If the Parties cannot
agree on the mediator, each party shall select a mediator and such
mediators shall together unanimously select a neutral mediator who
will conduct the Mediation. Each Party shall bear the fees and
expenses of its mediator and all the Parties shall equally bear the
fees and expenses of the final mediator. The decision of the
mediator shall be nonbinding, unless the parties mutually agree
that such decision shall be final and binding. If the dispute has
not been resolved through the Mediation, such matter shall be
submitted to the JAMS and shall be finally settled under the Rules
of Arbitration of JAMS by one or more arbitrators appointed in
accordance with the said rules. The arbitration shall take place in
Nevada if brought by WestMÿn and in the State of Nevada if
brought by Agent.
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(i)
All
notices, requests, consents, claims, demands, waivers and other
communications hereunder (each, a “Notice”) shall be in
writing and addressed to the other Party at its address set forth
above (or to such other address that may be designated by the
receiving party from time to time in accordance with this section).
All Notices shall be delivered by personal delivery, nationally
recognized overnight courier (with all fees pre-paid), facsimile
(with confirmation of transmission) or certified or registered mail
(in each case, return receipt requested, postage prepaid). Except
as otherwise provided in this Mining Agreement, a Notice is
effective only if (a) the receiving party has received the Notice
and (b) the party giving the Notice has complied with the
requirements of this Section.
12.
RISK NOTICE
“Cryptocurrencies” refers to distributed, decentralized
peer-to-peer digital currencies; and, actions with cryptocurrencies
carry inherent risks.
Cryptocurrencies are uninsured, unregulated and decentralized, and
the value of any mining agreement or any amount of any
cryptocurrency is subject to change due to fluctuating market
prices.
13.
FORCE MAJEURE
No Party shall be liable for any delay or failure to perform its
obligations if such failure or delay is due to Force Majeure.
“Force Majeure” includes delay or failure resulting
from any cause reasonably beyond a Party’s control, including
(i) act of God, (ii) labor stoppages or other industrial
disturbances, (iii) systemic electrical, telecommunications, or
other utility failures, (iv) earthquakes, flood, fire or explosion,
(v) blockages, embargoes, riots or orders of government, and (vi)
acts of terrorism or war. Any delay or stoppage in mining
activities resulting from Force Majeure shall be treated as a
Suspension Period, and the Term shall be extended
accordingly.
14.
TERMINATION
If Customer materially interferes with any of WestMÿn’s
operations and Customer fails to remedy such interference within
thirty (30) business days after receipt of notice by WestMÿn,
WestMÿn reserves the right to immediately return the prorata
portion of Customer’s Mining Price, calculated by dividing
the Mining Price by percentage of Agreement Term days remaining. If
(i) WestMÿn breaches, or fails or refuses to perform under,
this Mining Agreement, or (ii) if there is any suspension in mining
operations for sixty (60) days for any reason, Customer may demand
that WestMÿn immediately return to Customer its pro-rata
portion of the Mining Price, calculated by dividing the Mining
Price by percentage of Agreement Term days remaining.
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Both Agent and WestMÿn shall have the right to voluntarily
terminate this Agreement at any time during the term of this
Agreement. The Terminating Party must provide the Non-Terminating
Party with notice of intent to terminate. Notice shall be provided
by the Terminating Party to the Non-Terminating Party according to
Section 11(i) of this Agreement. Once proper notice has been
provided, a period of One Hundred Twenty (120) calendar days
(“Notice Period”) shall run before the term of the
Agreement shall be cancelled (“Termination
Date”).
Any and all existing and valid crypto contracts that originated
before the Termination Date shall survive the termination of the
Agreement and remain with WESTMŸN.
15.
AMENDMENT, ASSIGNMENT, AND FORUM SELECTION
(a) The
Parties may not assign any rights or obligations under this Mining
Agreement; except, however, Agent has the right to sell the Mining
Equipment and services to their Customer.
(b) Each
party agrees that the dispute resolution provisions contained in
Section 11 are valid and binding and provide the exclusive dispute
resolution mechanism between the Parties. Notwithstanding the
foregoing, to the extent consistent with Section 11, if it is
necessary that any matter become the subject of court proceedings,
each Party agrees to submit to reciprocal jurisdictions as follows:
in the event of a dispute under this Mining Agreement (a) if Agent
asserts a claim against WestMÿn then the Parties stipulate and
waive any objection to proceeding in Nevada as their exclusive
forum; however, (b) if WestMÿn asserts a claim against Agent,
then the Parties stipulate and waive any objection to proceeding in
either the State of Nevada or the location of Agent’s
domicile (as designated by Agent) as the exclusive
forum.
(c) This
Mining Agreement is to be interpreted so that it complies with all
applicable laws and if any provision does not comply then it must
be read down so as to give it as much effect as possible however,
if it is not possible to give that provision any effect at all then
it is to be severed from this Mining Agreement in which case the
remainder of this Mining Agreement will continue to have full force
and effect.
(d) This
is the entire agreement between the parties as to their subject
matter and supersedes all prior or inconsistent statements or
representations as to that subject matter and may only be modified
or amended in writing signed by all Parties.
*** signature page follows ***
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IN WITNESS hereof, the Parties to this Mining Agreement have caused
this Mining Agreement to be executed as of the date first written
above by their duly authorized respective
representatives
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Lessor:
WESTMŸN TECHNOLOGY SERVICES, INC.
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Agent:
INVESTVIEW, INC. and
Kuvera LLC (subsidiary)
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By:
/s/ TRAVIS BOTT
Travis E.
Bott, Director
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By:
/S/ RYAN
SMITH
Ryan
Smith, CEO
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Schedule A
Description
of Mining Equipment
AMD RX
GPUs 1000 to 1250 W
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Mining Rig consists of the following components:
6x GPU
Cards
1x
Motherboard
1x
CPU
1x
RAM
1x
SSD
1x
Power Supply Unit
1x GPU
Frame and Risers
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