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Any order placed by you in the manner described in this site is an offer by you to purchase a particular product or service for the price (including the delivery and other charges) specified on this site at the time you place your order. You acknowledge that, by placing your order, you are agreeing to pay for and accept delivery of the goods ordered unless you ask us to cancel that order, and we send you written confirmation of the cancellation prior to the goods being dispatched to you. Cancellation is at the discretion of Mining Store.
Mining Store shall pay for the supply of goods after payment is received from you, and the purchase of that supply is non-refundable. Mining Store may provide a refund with a restocking fee of thirty percent (30%) of the costs of good for any website or invoiced orders. Mining Store has the right not to provide a refund in accordance with the Australian Competition and Consumer Commission (‘ACCC”).
Mining Store may change the prices published on its website at any time. While every effort has been made to ensure the accuracy of prices and information displayed on the Mining Store website, Mining Store reserves the right to accept or reject your offer for any reason, including without limitation, the unavailability of any product, an error in the price or the product description posted on this site, or an error in your order. We may require additional verification or information before accepting any order.
2.1 No price list, range, book, catalogue or quotation given by the Supplier shall constitute an offer to supply goods to the purchaser
2.2 Any indent order for the supply of goods must be in writing and shall not be binding upon the Supplier until accepted by the issue of an order confirmation which will detail all prices, the part of the order accepted, pricing and the proposed delivery date of the stock ordered (“Order Confirmation”).
2.3 The Order Confirmation may list suggested substitution of styles for styles not being produced or unavailable.
2.4 In season orders made by telephone, email or by our agents are done so in accordance with these Terms and Conditions.
2.5 All orders placed with the Supplier by the Purchaser shall be deemed to be an offer by the Purchaser to purchase the Goods subject to these Terms and Conditions
2.6 Whilst every endeavour is made to maintain prices as quoted on the Order Confirmations if any movements occur after the date of acceptance in the relevant exchange rates, duty rates, tariffs, quotas or freight rates or any other factors beyond our control, the Purchaser reserves the right to amend the price to include a reasonable allowance for any movement in such rates, tariffs, quotas, freight rates or other such factors and all orders shall be subject to such price alterations up to the date of delivery of the goods
2.7 The Goods supplied shall be as specified in the Order, unless otherwise discussed
2.8 At the Supplier’s sole discretion a deposit may be required or the Supplier may require payment by way of letter of credit against delivery. Any special terms concerning payment by the Purchaser will be detailed on page 1 of the summary page which forms part of these Terms and Conditions
2.9 In the event that no special terms of payment are listed on page 1 per clause 2.7 payment shall be due on delivery of the goods or be due thirty days following the end of the month of the date of invoice which will be sent with the goods
3.1 All goods are dispatched to the client are billed individually, or free when delivered to the Supplier’s warehouse unless prior agreements have been made. All goods will be sent with our nominated freight carrier and the consignment note number and cost of freight will be added to each invoice sent with the goods.
3.2 Every attempt will be made by the Supplier to deliver the goods during the delivery window as advised on the Order Confirmation. It can be expected that due to the nature of the industry supply that delays can occur up to 6 months. Mining Store will communicate any delays with the client. In the event of any failure to deliver the goods during the delivery window does not give the Purchaser any right to terminate or alter any order confirmed.
3.3 Part orders of an Order Confirmation may be sent on a pro rata basis and the goods so delivered will be invoiced and must be paid as required by these Terms and Conditions
3.4 The Supplier will deliver Goods to the address nominated by the Purchaser which will be listed on the Order Confirmation when reasonably practicable and the Purchaserwill take delivery of goods when tendered. Any redelivery shall entitle the Supplier to charge a reasonable re supply fee
3.5 The Supplier does not guarantee availability of Goods even if the goods are listed in an Order confirmation
3.6 The Supplier will not be liable for any loss or damage (including consequential loss or damage) arising from any delay in delivery or failure to deliver or delivery of defective Any shortage or packing mistakes must be advised to the Supplier in writing within seven (7) days.
Title to the goods purchased on this site does not pass from Mining Store to you until we have received payment in full for the goods. All risk in the goods passes to you upon delivery.
Once the purchaser makes full payment for a miner ownership fully transfers to them. Deposits are paid straight to manufacturers to secure stock & can not be returned.Purchaser can request miners to be shipped to them anywhere in the world upon request (freight charges will be paid by the purchaser)
The Purchaser is required to ship the unit to Mining Store returns and quality check station which is located in China. Freight charges to Mining Store are to be paid by the purchaser, return charges are paid by Mining Store
6.1 Returning the product
You are entitled to return a product if you believe that there is a problem. You are responsible for returning the product if it can be posted or easily returned. You are responsible for paying the freight costs for the product being returned.
The Purchaser cannot return goods unless a return authorisation number has been obtained. The return authorisation number is only for tracking, return and assessment of the reason for return which must only be due to a defect. The correct procedure for the return of goods is as follows:
Contact the Supplier by phone/fax/email to obtain a return authorisation number for the respective return for assessment;
The Supplier will email/fax to you a return number and Return Authorisation Form for completion which must be sent back with the item;
Upon receipt the Supplier will inspect the goods and either repair the goods or replace the goods at our discretion in accordance with our warranty obligations set out in Clause 8.
If you have received Goods that have been incorrectly sent to you or you are sending back shop ready stock all packing, swing tags, bar code identifications and polybags in which the Goods arrived must be returned. In the event that the Supplier has to retag, pack or swing tag the Goods, remove store price stickers which may still being affixed to swing tags you may be charged an administration fee of $2.00 per item as a handling charge.
Mining Store aims to include up-to-date pictures and specifications of all of the goods. However, our picture and/or description of the goods may differ from the actual goods. Images are for illustration purposes only, actual product may differ.
All prices quoted on the Mining Store website are quoted in Australian Dollars and are inclusive of GST except where otherwise stated.
All Clearance products are sold on a No Returns basis and are subject to these Terms & Conditions of purchase. Clearance products are either new, ex-demo, or have some minor cosmetic imperfection.
Due to the limited stock availability of clearance products, neither placement of an order, nor email confirmation that we have received your order, guarantees fulfilment of that order. Orders are processed on a first-come first served-basis and we will be considered to have accepted your order only by delivering the goods. If we cannot accept your order for any reason, we will notify you by telephone or email.
If your order is unsuccessful because the stock has been purchased by an order prior to yours, Mining Store is not required to supply you with any alternative products and has no liability to you whatsoever. You will receive a full refund.
10.1 Other than as provided for in these Terms and Conditions, the Supplier shall not be liable to the Purchaser whether in contract (including under any indemnity or warranty) in tort, including negligence and under statute, for any loss or damage, whether direct, indirect, secondary or consequential, whether or not reasonably foreseeable, reasonably contemplatable caused as a result of reliance by the Purchaser or any third party on the Goods or its results.
10.2 The provisions of this clause shall not apply insofar as their application is prevented by the CCA, and in particular section 64 of the Australian Consumer Law (“ACL”).
10.3 Where our goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption our liability arising from consumer guarantees in the Completion and Consumer Act 2010, is limited, at our election, to either:
replacing the Goods or supplying equivalent goods; or repairing the Goods or agreeing to pay the cost of repair
10.4 If the Supplier shall be held to be liable to the Purchaser in contract including under any indemnity or warranty, in tort (including negligence), under statute or otherwise for any loss or damage, cost or expense whatsoever and howsoever arising in connection with these Terms and Conditions, such liability shall be limited to and shall not exceed the aggregate total of the amount actually paid by the Purchaser to the Supplier (and received by the Supplier) pursuant to these Terms and Conditions
10.5 The Supplier shall not be liable for any delay in performing an obligation if such delay is caused by circumstances beyond its reasonable control and the Supplier shall not be liable for and shall have no responsibility in respect of the acts, omissions or 1defaults of its sub- contractors and third party products and any action against the Supplier in connection with these Terms and Conditions must be commenced within eighteen (18) calendar months of the cause of action arising.
10.6 If the Purchaser has not advised the Supplier of any issue with any order delivered within 7 days, the Supplier have no liability for any loss or damage by reasons of incomplete numbers or otherwise
10.7 In the case of a breach of these Terms and Conditions or any negligence which the Supplier is responsible or a breach of condition or warranty that prohibits the Supplier from excluding (which condition or warranty shall be included in these Terms and Conditions) the Supplier liability to the Owner shall be limited, at its option to:
if the breach relates to goods, to either the replacement of any goods involved or the supply of equivalent goods, the repair of such goods, the repayment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired; and if the breach relates to services, supplying the service again or the payment of the cost of having the services supplied again
10.8 The Supplier will not be liable to the final consumer or to you where the Goods do not meet the consumer guarantees in the CCA:
due to an act, default or omission of, or representation made by any person other than us or by one of our employees or agents; due to a cause independent of human control that occurs after the Goods have left our control; due to you charging a higher price than the recommended retail price for the Goods in question; In relation to our guarantee of acceptable quality, where the final consumer was aware of, or ought reasonably to have been aware of the flaw in the Goods at the time of purchase
Mining Store is unclassified and new hardware and the expected lifetime or quality of life is unknown. Industry standard warranties provided by manufacturers is 6 months. Any issues with mining hardware will need to follow the warranty/quality check process. If the hardware passes the warranty check, a free repair or replacement will be arranged. If it does not, then a paid service will be provided should the unit be repairable.
12.1 Purchasers Warranty
The Purchaser warrants that all information provided to the Supplier is accurate, and the Purchaser shall indemnify the Supplier against any Loss, claims, damages or expenses arising out of or in connection with any breach of this warranty.
12.2 Limitation of Liability
Our total liability to you (if any) in connection with this site, or with these Terms & Conditions or any goods or services supplied under them, will be limited, at our election, to:
In the case of information or services supplied or offered by us – the re-supply of the information or services or payment of the cost of doing this In the case of goods supplied or offered by us – repair or replacement of the goods, supply of equivalent goods, or payment of the cost of doing this The amount paid by you (if any).
12.3 Rights We Cannot Exclude
The above disclaimer and liability limitation do not exclude any rights, which by law may not be excluded, including but not limited to your rights under the Trade Practices Act.
Goods supplied under these Terms and Conditions must not be supplied by you to purchasers outside Australia, or to persons who operate internet sales stores or who conduct web based sales outside of Australia. You agree that you will state on any website or other method of obtaining orders for sale that the goods will not be supplied to customers outside Australia.
Supply of orders on credit and the extension of credit will be rejected if a Purchaser has an overdue account. A service charge of 1.5% per month will be charged on all overdue accounts. In addition to the service charge, an account keeping fee of AUD $20 per month will be charged on all accounts with invoices and transactions outside normal trading terms. All payments made by the Purchaser will be applied in our absolute discretion to service charges, account keeping charges and outstanding invoiced amounts. Mining Store reserves the right to hold a clients miners until accounts are fully settled.
If all attempts Mining Store have made to contact you and receive payment have failed, we will employ a debt collecting agency to collect the outstanding money from you. If you do not respond within 90 days we may dispose of your equiptment.
The Purchaser agrees that all warranties expressed or implied by statute, common law, equity or trade custom or usage or otherwise howsoever are to the extent permitted by law excluded. Except only for those rights and remedies that the Purchaser has in respect of the Goods under the Competition and Consumer Act 2010 (the “CCA”), and any other similar Federal or State statute and which cannot be lawfully excluded, restricted or modified:
the Goods are provided for use by the Supplier on an as is where is basis and all conditions and warranties, whether statutory or otherwise, are excluded in relation to the Goods; without limiting Clause 7(a) the Supplier warrants that it will provide the Goods with reasonable care and skill. The Supplier makes no express or implied representation that the Goods are fit for purpose or that the Goods will not cause harm or injury whether direct or indirect to any person who uses or otherwise comes in contact with the Goods whether directly or indirectly; and The Supplier is not liable to the Purchaser for any loss whatsoever, including any damage, loss, claim, liability, cost or expense (whether direct or indirect, consequential or incidental) loss of profit, revenue, anticipated savings, contract, opportunity or goodwill (the ‘Loss”) which the Purchaser suffers, incurs or is liable for in connection with the use of the Goods.
17.1 The Purchaser agrees that the legal and equitable title to the Goods is retained by the Supplier until the Supplier receives payment in full from the Purchaser for all the Goods and any other goods and services supplied to the Purchaser by the Supplier at any time, whether or not any payment has been made for some of the Goods or other goods and Prior to title in the Goods passing to the Purchaser, the Purchaser:
17.1.1 holds the Goods as bailee and fiduciary agent of the Supplier;
17.1.2 where the Purchaser processes the Goods, either by using the Goods to manufacture other goods or by incorporating the Goods in or with any other goods, holds such part of the new goods (Processed Goods) on trust for the Supplier as bailee and fiduciary agent of the Supplier;
17.1.3 must store the Goods and such part of the Processed Goods separate from its own goods and those of any other third party in such a way as to clearly indicate at all times that the Goods and such part of the Processed Goods are owned by the Supplier; and
17.1.4 must ensure that, at all times, the Goods and such part of the Processed Goods are properly stored, protected, readily identifiable and insured
18.2 The Purchaser hereby agrees to accept this appointment as bailee and fiduciary agent of the supplier.
18.3 The Purchaser may sell or deal in the ordinary course of business with the Goods and such part of the Processed Goods provided that–
18.3.1 any such sale or dealing is at arms’ length and on market terms; and
18.3.2 the Purchaser holds the proceeds of any sale of or dealing in the Goods and such part of the proceeds of any sale of or dealing in the Processed Goods on trust for the Supplier in a separate identifiable account as the beneficial property of the Supplier and the Purchaser must pay such amount to the Supplier on demand
18.4 For the purpose of this clause 9, “such part” means an amount equal in dollar terms to the amount owing by the Purchaser to the Supplier at the time the Goods are used in the manufacture of or incorporated into the Processed Goods
18.5 Notwithstanding any other provision to the contrary, the Supplier reserves the following rights in relation to the Goods until all amounts owed by the Purchaser to the Supplier in respect of the Goods and all other goods and services supplied to the Purchaser by the Supplier at any time are fully paid:
18.5.1 legal and equitable ownership of the Goods;
18.5.2 to retake possession of the Goods;
18.5.3 to keep or resell any of the Goods repossessed; and
18.5.4 any other rights and entitlements contained in the PPSA
18.6 In the event of a breach of this contract by the Purchaser including, without limitation, failure by the Purchaser to make payment for the Goods by the date specified by the Supplier to the Purchaser, the Purchaser must return the Goods to the Supplier immediately on demand
18.7 If the Purchaser does not return the Goods to the Supplier on demand, the Supplier shall be entitled (without further notice), and the Purchaser hereby grants full leave and irrevocable licence to the Supplier and any person authorised by the Supplier, to enter upon any premises where the Goods may for the time being be placed or stored for the purpose of retaking possession of the Goods
18.8 The Purchaser agrees that:
18.8.1 it shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by the Supplier (including consequential losses and damages) as a result of the Supplier exercising its rights under this clause; and
18.8.2 it shall indemnify the Supplier for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Supplier in connection with the retaking possession of the Goods or the exercise by the Supplier of its rights under this clause, and the Purchaser shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand
18.9 The parties agree that this creates a Security Interest for the purposes of the PPSA and that the Supplier shall be entitled to register the Security Interest on the PPSR and the Purchaser will not make any objection to such registration
18.10 The Purchaser irrevocably agrees to assist with the prompt registration of the Security Interest, and agrees to sign all PPSR registration forms and acknowledgements and reimburse all costs of the Supplier in obtaining registration of the Security Interest
18.11 It is agreed that the Security Interest applies to all goods that have previously been supplied as well as to all present and after acquired Goods
18.12 The Purchaser agrees that it will not make or register a Financing Change Statement as defined in section 10 of the PPSA or make or demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of the Supplier
18.13 The Purchaser acknowledges and agrees that it waives any rights it may have under s115 of the PPSA upon enforcement and waives any rights it may have to receive a Verification Statement
18.14 If chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under these Trading terms and Conditions, the Purchaser agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those Security Interests
18.15 In this clause:
PPSA means the Personal Property Securities Act 2009; PPSR means the Personal Property Securities Register; Security Interest has the meaning as set out in section 12 of the PPSA; Purchase Money Security Interest (and PMSI) has the meaning as set out in section 14 of the PPSA; Financing Change Statement, Verification Statement and Financing Statement have the meaning as set out in section 10 of the PPSA.
19.1 The Supplier reserves the right to charge interest on any outstanding sum in accordance with these terms and Conditions, without notice to the Purchaser
19.2 Should any payment made be dishonoured, you shall be liable to the Supplier for any dishonor fees incurred by the Supplier
19.3 In the event that: The Supplier consider that there is a material risk that you will be unable to pay any amount owing to us and gives you notice of this opinion; or You fail to make due payment on any invoice supplied by us by the due date; or You are a an individual and you commit an act of bankruptcy; or You are a company and it has an administrator, manager, trustee, official manager or receiver, liquidator or any other person authorised to enter into possession or control of you; or You have a judgment entered against you in any court; or A secured creditor seizes or takes possession of any collateral asset in your possession as a security obligation under a financing contract; or You enter an invoice finance or factoring arrangement without the Supplier’s written consent this shall be a default.
19.4 In the event of a default, the Supplier may without prejudice to any other rights it mayhave do any or all of the following: Seek the repayment of all monies accrued and owing by you and such amounts will become immediately due and payable without any demand being required; Withdraw credit facilities that may have been extended to you; Withhold any further deliveries of Goods; Hosted goods may be disposed of after 180 days. In respect of Goods delivered, enter onto your premises with full authority from you to recover and resell the goods for our own benefit as per our right of entry contained in clauses 6 and 9.7; Suspend and or terminate the performance of any other orders that you may have; cancel all rebates, discounts and like allowances allowed in respect of any unpaid invoices apply as an offset any credits which may be due to you by the Supplier against any amounts owed by you to the Supplier; commence legal proceedings, including winding up proceedings, and recovery of legal costs on a solicitor and own client basis
19.5 In the event of a default, the Supplier has the right to have the Goods returned to the manufacturer, to determine its status, if it is the case that it cannot be properly determined remotely, before considering the need to repair, replacement or refund
The Purchaser and the Guarantor assume sole responsibility for and indemnify and save harmless the Supplier and its Related Bodies Corporate, shareholders, officers, directors, employees, agents and assignees (collectively “Supplier Affiliates”) from any and all claims, liabilities, losses, expenses, responsibility and damages, including all legal costs and expenses on a solicitor/client basis, the Supplier or Supplier Affiliates may suffer or incur as a result of or relating to the Purchaser’s relations with its suppliers, customers and other third parties; or any breach of these Terms and Conditions by the Purchaser.
When you purchase goods and products (Products) from us these Terms of Sale will apply. We transact the Products on the terms set out in these Terms of Sale. By purchasing Products you agree to abide by these Terms of Sale. If you do not agree with any of these terms you should not purchase the Products from us. If you wish to host your hardware with us, such hosting may be ordered with Mining Store Pty Ltd (Mining Store) and will be subject to separate terms and conditions of hosting (Hosting Terms).
1.1 All Products purchased or procured by you will be subject to these Terms of Sale unless otherwise agreed in writing.
1.2 By purchasing or placing an order for any Products you are agreeing to be bound by these Terms of Sale, unless otherwise agreed in writing.
1.3 Our internal records will be conclusive evidence of the Products ordered and/or provided to you.
2.1 Products displayed on our Website may vary slightly from any pictures of those Products. Such pictures are for illustrative purposes only. While we will make all reasonable efforts to display the specifications accurately, we cannot guarantee that a product’s representation accurately reflects the actual Product. Your Products may vary slightly from those images. The images of the Products on the Website shall not form any representation or any part of the Terms of Sale or have any contractual force.
3.1 You may access some areas of our Website without registering your details with us. However, to order Products, you must provide us with some of your personal information and register an account (Account).
3.2 You must not create an Account if you are under the age of 18.
3.3 To create an Account, you must submit: (a) your contact details such as your first name, last name, email address; (b) your payment details including bank account details; and (c) any other information we may request to identify you or verify your Account.
3.4 All personal information you provide through the Website will be collected, handled, and used in accordance with our Privacy Policy.
3.5 You agree to keep your Account information accurate and complete. You will not be able to use the Website to make orders if you provide invalid, expired or incorrect information.
3.6 You acknowledge and agree that you are responsible for any activity that occurs through your Account and you will not sell, transfer, license or assign your Account to anyone else. You agree that you will not create an Account for another person, and will not possess more than one Account.
4.1 Ordering Products
(a) No price list, range, book, catalogue or quotation given by us will constitute an offer to supply goods to you.
(b) Any order you place via our Website is deemed an offer to us to purchase the Products at the price displayed on our Website or quoted by us (including any other charges), and such offer is deemed to have incorporated the terms and conditions set out in these Terms of Sale notwithstanding any inconsistencies between any order form on our Website and these Terms of Sale (Order).
(c) You are responsible for completing an Order and providing us with all necessary information. We may require additional verification or information before accepting any order.
(d) Any order for Products must be in writing and will not be binding on us until accepted by us through the issue of an order confirmation, which will detail all prices, the part of the order accepted and the proposed delivery date of the stock ordered, notwithstanding that we do not guarantee the availability of Products despite being listed in such an order confirmation (Order Confirmation).
(e) The Order Confirmation may list suggested substitutions of Products, for Products not being produced or no longer available.
(f) Orders made by telephone, fax or email are done in accordance with these Terms of Sale.
(g) If we cannot process or complete your Order, we will notify you and will not charge, or will refund without deduction, your payment for the Order.
(h) Any order placed by you may be cancelled or altered in whole or in part by sending us such a request and receiving written confirmation from us of the cancellation prior to the Products being dispatched to you. Cancellation is at our discretion.
(i) Subject to clause 4.1(h), in the event that we consent to a cancellation, you agree to reimburse us for any reasonable administrative fee for processing the cancellation.
(j) The Products supplied will be as specified in the Order subject to clause 4.1(e).
4.2 Pricing
(a) We may change the prices published on our Website at any time. While every effort has been made to ensure the accuracy of prices and information displayed on our Website, we reserve the right to accept or reject your offer for any reason, including without limitation, the unavailability of any product, an error in the price or the product description posted on our Website, or an error in your order.
(b) Whilst every endeavour is made to maintain prices as quotes on the Order Confirmation, if any fluctuations occur after the date of acceptance of the Order Confirmation in the relevant exchange rates, duty rates, tariffs, quotas, freight rates or due to any other reason beyond our control, we reserve the right to amend the price to include a reasonable allowance for any such fluctuations and all Orders will be subject to such price alterations up the date of the delivery of the Products.
(c) All prices quoted on our Website and Confirmation Order are quoted in Australian dollars and are inclusive of applicable goods and sales tax and other taxes of a similar nature (GST) except where otherwise stated.
4.3 Clearance, Sale and Stock to Clear
(a) All clearance Products are sold on a no return basis under these Terms of Sale.
(b) Due to limited stock availability of clearance Products, neither the placement of an Order nor a Confirmation Order guarantees fulfilment of that Order. Orders will be processed on a first come first served basis. If we cannot accept your Order for any reason, we will notify you by telephone or email.
(c) If your Order is unsuccessful due to stock being purchased by an order prior to your Order, we will not be under any obligation to provide you with any alternative Products to your Order and we will have no liability to you other than for a full refund.
5.1 Unless set out differently the covering page(s) of this document, full payment is due on placement of your Order.
5.2 At our sole discretion, a non-refundable deposit may be required or payment by way of letter of credit against delivery.
5.3 Where a Product is ordered but has a delay on delivery for any reason (whether notified to you or not) then any cancellation of the order will result in a loss of the deposit.
5.4 You agree that our retention of any deposit is a genuine pre-estimate of the loss we will suffer due to a cancellation of the order and is not a penalty.
6.1 Shipping costs applicable to any Products the subject of an Order may be applied whether the Products are being delivered to your nominated address or hosted with our hosting partner.
6.2 We use third party providers to handle delivery of Products and cannot accept any liability for any loss or damage of the Products arising due to any action of those responsible for delivery of the Products.
6.3 We will endeavour to deliver the Products to you within any nominated and estimated delivery time. We use manufacturer’s estimated delivery time in providing you with this information. However we cannot guarantee any delivery time for Products and, delays may occur, including where new Products are the subject of pre-sale or pre-ordering. We will endeavour to communicate any delays to you.
6.4 You agree that if any Products are not delivered within the estimated time period provided to you, you may not be entitled to terminate your Order.
6.5 Product Orders may be delivered in part where delivery of part of the Order is delayed.
7.1 All risk in the Products will pass to you on delivery.
7.2 You agree that the legal and equitable title to the Products is retained by us until we receive payment in full from you for all the Products and any other products and services supplied to you by us at any time, whether or not any payment has been made for some of the Products or other goods and prior to title in the Products passing to you, you agree to:
(a) hold the Products as bailee and fiduciary agent of us;
(b) store the Products separate from your own products and those of any other third party in such a way as to clearly indicate at all times that the Products are owned by us;
(c) ensure that, at all times, the Products are properly stored, protected, readily identifiable and insured; and
(d) to accept this appointment as bailee and fiduciary agent of us.
7.3 You may sell or deal in the ordinary course of business with the Products provided that:
(a) any such sale or dealing is at arms’ length and on market terms; and
(b) you hold the proceeds of any sale of or dealing in the Products on trust for us in a separate identifiable account as the beneficial property of us and you must pay such amount to us on demand.
7.4 Notwithstanding any other provision to the contrary, we reserve the following rights in relation to the Products until all amounts owed by you to us in respect of the Products and all other goods and services supplied to you by us at any time are fully paid:
(a) legal and equitable ownership of the Products; (b) to retake possession of the Products; (c) to keep or resell any of the Products repossessed; and (d) any other rights and entitlements contained in the PPSA.
7.5 In the event of a breach of this contract by you including, without limitation, failure by you to make payment for the Products by the date specified by us, you must return the Products to us immediately on demand.
7.6 If you do not return the Products to us on demand, we shall be entitled (without further notice), and you hereby grant full leave and irrevocable licence to us and any person authorised by us, to enter upon any premises where the Products may for the time being be placed or stored for the purpose of retaking possession of the Products.
7.7 You agree that:
(a) you shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by us (including consequential losses and damages) as a result of you exercising your rights under this clause; and
(b) you shall indemnify us for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as result of any and all prosecution, actions, demands, claims or proceedings brought by or against us in connection with the retaking possession of the Products or the exercise by us of our rights under this clause, and you shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
7.8 The parties agree that this creates a Security Interest for the purposes of the PPSA and that we shall be entitled to register the Security Interest on the PPSR and you will not make any objection to such registration.
7.9 You irrevocably agree to assist with the prompt registration of the Security Interest, and agrees to sign all PPSR registration forms and acknowledgements and reimburse all our costs in obtaining registration of the Security Interest.
7.10 It is agreed that the Security Interest applies to all goods that have previously been supplied as well as to all present and after acquired Products.
7.11 You agree that you will not make or register a Financing Change Statement as defined in section 10 of the PPSA or make or demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Products without our prior written consent.
7.12 You acknowledge and agree that you waive any rights you may have under section 115 of the PPSA upon enforcement and waive any rights you may have to receive a Verification Statement.
7.13 If chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under these Terms of Sale, you agree that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those Security Interests.
7.14 In this clause, Financing Change Statement, Verification Statement and Financing Statement have the meaning as set out in section 10 of the PPSA.
8.1 Subject to clauses 5 and 11.6, any claim you wish to make as to an error in a description, specification or quantity of Products delivered to you must be notified to us in writing within 14 days after delivery of the Products. If you do not notify us within this period, you will be deemed to have waived any right to a refund or return under these Terms of Sale.
8.2 You acknowledge that we have a no refund policy, notwithstanding that we may provide a refund with a restocking fee comprising 30% of the cost of the Products for any invoiced Orders.
8.3 You may return Products which suffer from a fault or defect within 6 months of delivery by:-
(a) firstly, notifying us by phone, fax or email to [email protected]; and
(b) shipping the Products to the address specified on the Return Authorisation Form for quality control purposes and the cost of shipping will be borne by you.
8.4 Any Products returned by you must bear all packaging, swing tags, bar code identifications and polybags that came with the Products. In the event that we are required to retag, repack or swing tag the Products, you may be charged an administration fee per item.
8.5 Upon receipt of the Return Authorisation Form and the Products from you, we will inspect the Products and either repair the Products or replace them at our discretion in accordance with our warranty obligations under these Terms of Sale. The cost of repair will be borne by you if a repair is required for a reason other than defective manufacture. Any shipping costs for repaired or replaced Products will be borne by you in the first instance and if a Product turns out to be defective then we will reimburse your shipping costs.
8.6 Further to clause 8.2, you agree that:
(a) any delays in delivery of an Order under clause 6 will not give rise to a claim for a refund; and
(b) Products purchased subsequent to an Order Confirmation are non-refundable.
9.1 These Terms of Sale may be terminated with immediate effect by either party save that termination does not affect the rights of the parties which have accrued prior to the termination and if any Orders are awaiting confirmation or completion at termination those Orders will be required to be settled under the terms of these Terms of Sale as if it had not been terminated.
10.1 In Australia, our services come with guarantees that cannot be excluded under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).
10.2 Nothing in these Terms of Sale excludes, restricts or modifies or purports to exclude, restrict or modify the conditions, warranties and undertakings arising under the Australian Consumer Law. Our liability for death or personal injury arising from our negligence or for any condition, warranty, right or liability implied in these Terms by law cannot be excluded.
10.3 You acknowledge that:
(a) your purchase of the Products and your use of the Website is at your own risk;
(b) prior to accepting these Terms of Sale you have been given a reasonable opportunity to examine and satisfy yourself regarding the Products which are the subject of these Terms of Sale;
(c) due to the nature of the Products, being heat and electricity intensive computer components which are operated 24 hours a day in most cases, we provide no warranty or guarantee as to the function, performance or good operation of the Products;
(d) at no time prior to accepting these Terms of Sale have you relied on our skill or judgement and that it would be unreasonable for you to do so;
(e) we do not make any guarantees as to the advertised Products, or have any control over, the purchase, delivery or accuracy of those Products, including any lifetime guarantees to Products comprising mining rigs;
(f) we do not make any representations or warranties concerning any content contained in or accessed through the Website, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Website;
(g) the highly volatile nature of cryptocurrency means that small market movements can have a great impact on trading and/or mining output, and you acknowledge that you are responsible for all the risks and financial resources or systems you use in connection with the Products; and
(h) you should not engage in mining using our Products unless you fully understand the nature of the transactions you are entering into and extent of your possible exposure to loss, and that you must seek independent advice from your financial advisor should you not fully understand these risks. You further acknowledge that all strategies and/or purchase of Products comprising mining hardware are at your own risk.
10.4 To the maximum extent permitted by law, all other warranties or conditions which are not guaranteed by law are expressly excluded, including liability for loss of expectations, loss of profits, incidental or consequential loss or damage caused by breach of any express or implied warranty or condition. In particular, we do not warrant:
(a) that your access to the Website or your purchase of Products will be free from interruptions, errors or viruses; or
(b) the accuracy, adequacy or completeness of information on the Website (nor do we undertake to keep the Products updated).
10.5 To the extent that we are in breach of any consumer guarantee or any other warranty or condition that cannot be excluded from these Terms of Sale:
(a) your sole remedy will be for us to provide the features or services that were previously provided; and
(b) our maximum liability to you is limited to the purchase price of the last Order you placed with us or $100, whichever is less.
11.1 In purchasing the Products, you acknowledge and agree that:
(a) these Terms of Sale apply between you and us only;
(b) there is a risk of malicious actors seeking to interfere with our Products and that we expressly disclaim any liability for loss associated with that circumstance; and
(c) there is no professional relationship (including any attorney-client or advisor-advisee relationship) between you and us.
11.2 In entering into these Terms of Sale, you represent and warrant to us that:
(a) any information provided to us by you is accurate and complete;
(b) Mining Store and our Personnel will be entitled to rely on the accuracy and completeness of any information provided by you;
(c) you have not entered into these Terms of Sale in reliance on or as a result of any statement or any conduct of any kind or on behalf of any other person;
(d) you have independently satisfied yourself in respect of all matters in connection with these Terms of Sale, including reviewing and being satisfied with any applicable manufacturer’s warranty which may apply to the Products you intend to purchase;
(e) entry into the Terms of Sale does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject;
(f) you will not infringe or violate any of the Terms of Sale;
(g) you possess the legal authority to enter into these Terms of Sale and to form a binding agreement under any applicable law, to use the Website or purchase the Products in accordance with these Terms of Sale, and to fully perform your obligations hereunder;
(h) if you use the Website or purchase the Products on behalf of a business, corporate or charitable entity, you represent, warrant and agree:
(1) that you are duly authorised under any applicable law to represent such entity in connection with these Terms of Sale and to commit it to be bound by these Terms of Sale;
(2) make all representations and warranties herein on both your and its behalf;
(3) personally guarantee performance by such entity;
(4) you possess the knowledge and judgment necessary to decide whether to use the Website or otherwise engage with us or purchase the Products;
(5) you are solely responsible for complying with applicable laws regarding use of the Website or purchase of the Products including, without limitation, the determination of whether use of the Website or purchase of the Products complies with laws applicable to you; and
(6) you have read and agree to assume the risks identified above.
11.3 Continuous warranties
You represent and warrant to us that each of the warranties in clause 11.2 are true and accurate, and not misleading or deceptive as at the date of these Terms of Sale and, except as expressly stated, will be true, accurate and not misleading or deceptive each time a Product is provided to you.
11.4 Notification
You must disclose to us anything that has or will constitute a material breach of a warranty under clause 11.2 or cause any such warranties to be untrue or inaccurate, as soon as practicable after you become aware of it.
11.5 Mutual warranties
Each party warrants and assures the other party that:
(a) if acting behalf of a business, corporate or charitable entity, that:
(1) it is duly incorporated and validly exists under the law of its place of incorporation; and
(2) it is not subject to an Insolvency Event;
(b) the execution and delivery of these Terms of Sale have been properly authorised by all necessary action of each party; and
(c) these Terms of Sale constitute a legal, valid and binding agreement enforceable in accordance with its terms by appropriate legal remedy.
11.6 Warranty for repair or replacement
(a) In addition to any rights you have at law, the Products you purchase may be accompanied by a manufacturer’s warranty. We will endeavour to link to the manufacturer’s warranty and you can also locate the warranty information for each Product at the manufacturer’s website.
(b) It is important that you understand manufacturer’s warranties for our Products have significant exclusions, which we also disclaim in connection with the Products, including:
(1) Damage caused by improper use or operational errors;
(2) Damage caused by constant use without adequate cool down of the Products or overclocking, including heat related damage to components of the Products such as debonding of components, heat sink failures and PCB debonding;
(3) Corrosion or oxidisation damage to components of the Products;
(4) Damage due to excessive voltage or electricity leakage;
(5) Where a miner shows evidence of disassembly.
(c) To the extent we have any liability to you for a Product Warranty:-
(1) the warranty will only apply if we receive a notice of a claim by you on or before the expiry of 6 months from the date of receipt of your order;
(2) the warranty covers defects in materials and workmanship only;
(3) you may only claim under this warranty if all parts of the Products are maintained in accordance with any recommendations, if any, which we have conveyed to you;
(4) you may only claim on this warranty if you have complied with all of the terms of these Terms of Sale and any other reasonable requirements we ask you to comply with;
(5) you may not claim on this warranty to the extent any costs, loss or damage to the Products arise as a result or in connection with fair wear and tear of the Products or your own negligence or act or omission; and
(6) you will be solely responsible for the delivery of the Products to and from our nominated address.
(d) No Products will be accepted for return, repair or replacement under this warranty without our prior written consent.
11.7 Implied terms
(a) You agree that all warranties expressed or implied by statute, common law, equity or trade custom or usage or otherwise howsoever are to the extent permitted by law excluded.
(b) Except only for those rights and remedies that you have in respect of the Products under the Australian Consumer Law, and any other similar Federal or State statute which cannot be lawfully excluded, restricted or modified:
(1) the Products are provided on an “as is” basis and all conditions and warranties, whether statutory or otherwise, are excluded in relation to the Products;
(2) you explicitly disclaim any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising out of course of dealing or usage of trade; and
(3) we are not liable to you for any loss whatsoever, including any damage, loss, claim, liability, cost or expense (whether direct or indirect, consequential or incidental) loss of profit, revenue, anticipated savings, contract, opportunity or goodwill (Loss) which you suffer, incur or are liable for in connection with the use of the Products.
12.1 In the event you use our Website in any way to sell any Products purchased from us to another member of our community, other than via tools we provide for that purpose, you agree to pay to us liquidated damages of AUD$10,000 per miner sold which you agree is not a penalty but which is a genuine pre-estimate of the loss we will suffer in the event you seek to sell miners directly to our community in breach of this agreement.
13.1 You must indemnify us and our Personnel and keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, a breach of a warranty in clauses 11.2, 11.3 or 11.5 by you without limitation.
13.2 We must indemnify you and keep you indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which you may suffer, sustain or incur arising from, or connected with, our breach of a warranty in clause 11.5 without limitation.
14.1 To the maximum extent permitted by law, we do not accept responsibility for any loss or damage (including indirect, special or consequential loss or damage), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
(a) any particular amount of Digital Currency which any particular Product or Products generate via ordinary usage or that Digital Currency having any particular value;
(b) your use of the Website or any linked content, products and services (together, the Linked services) (including interference with or damage to your computer or mobile devices arising in connection with any such use);
(c) the purchase of Products or the Website being interrupted or unavailable;
(d) errors or omissions from the advertised Products or the Website;
(e) any failure or lack of any security measures by us, or any third party including in relation to the storage or transfer of data;
(f) viruses, malicious codes or other forms of interference effecting the purchase of Products, the Website or any Linked Services;
(g) your use of or reliance on information contained on or accessed through the Website or any Linked Services, which information may be incorrect, incomplete, inadequate or outdated, including reliance on any information in connection with strategies relating to use of the Products with respect to projections of future conditions;
(h) Products supplied pursuant to or in any way connected with the Website;
(i) unauthorised access to or use of, our servers and/or any information stored on them;
(j) any failure or omission on our part to comply with our obligations as set out in these Terms of Sale;
(k) any delay in delivery of Products purchased through the Website;
(l) any failure to deliver Products purchased through the Website; or
(m) delivery of defective Products purchased through the Website.
14.2 To the maximum extent permitted by law, you agree to indemnify and keep indemnified us and our Personnel against any action, liability, cost, claim, loss, damage, proceeding or expense suffered or incurred directly or indirectly arising from your purchase of Products through the Website, or from your violation of these Terms of Sale.
14.3 Where a guarantee or warranty is not able to be excluded from these Terms of Sale, our liability for any breach of the guarantee or warranty will, if and to the extent permitted at law, and subject to any qualifications in such laws, be limited to one or more of the following (at our option):
(a) the replacement of the Products or the supply of equivalent goods;
(b) the repair of the Products;
(c) the payment of the costs of replacing the Products or of hiring equivalent goods; or
(d) the payment of the costs of having the Products repaired.
14.4 To the greatest extent permissible at law, we will not be liable to you or any person claiming through you in contract or in tort for, or in respect of, any direct, indirect or consequential loss (including loss of expectations, loss of opportunity, loss of goodwill, loss of profits or similar loss), damage, expense or injury suffered by you or any other person arising out of, or in connection with, or relating to the performance or non-performance or any breach of these Terms of Sale or any other matter relating to these Terms of Sale or any error in information supplied to you before or after the date of these Terms of Sale in connection with its subject matter.
14.5 We will have no liability or responsibility for your compliance with laws or regulations governing the use of Products purchased from us. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules and regulations of governmental authorities in your jurisdiction.
14.6 You acknowledge that we may provide you with services to aid in mining performance projections through the use of Products purchased from us, and that neither we nor any of our Personnel are, and will not be, by virtue of providing such services to you, an advisor or fiduciary to you. You further acknowledge that any such projections rely on present assumptions which may change at any time. These projections should not be relied on to make decisions in connection with purchasing Products from us. While we take reasonable care to provide these projections, due to the highly variable nature of Blockchain networks and the incentives provided for mining, we cannot guarantee that upon delivery of any particular Products, you will achieve the same projected mining results or performance. Any such decision to purchase mining equipment will be made at your own risk.
14.7 You acknowledge that any Products purchased by you comprising mining rigs, which you choose to host through our hosting providers will be subject to the hosting terms and conditions which are separate to these Terms of Sale. You further acknowledge that we will have no liability or responsibility for any loss or damage in relation to such hosting services.
15.1 Notwithstanding any other term of these Terms of Sale, you acknowledge and agree that:
(a) we may share Your Data with Mining Store Hosting, and our partner companies Imperial Wealth and The Cash Kings;
(b) we may Process Your Data that has been aggregated and sufficiently identified such that identification of the underlying user (as the source of the information) is not reasonably possible (Aggregated Data);
(c) we shall own all intellectual property rights and other rights in any Aggregated Data; and
(d) we may use the Aggregated Data for any purpose, including for purposes that are not related to the purchase of the Products or these Terms of Sale. Without limitation, we may Process, use, reproduce, communicate, licence, broadcast, distribute, publish, commercialise, disseminate and exploit the Aggregated Data for any purpose.
15.2 You hereby assign absolutely to us, free of all encumbrances, and we accept the assignment from you, of all of the your right, title and interest throughout the world in relation to the Aggregated Data as and when it comes into existence.
15.3 This clause 15 survives the expiration or termination of this agreement for any reason.
16.1 You must ensure that your access to the Website or your purchase of the Products is not illegal or prohibited by laws which apply to you in the jurisdiction in which you are located.
16.2 You must take your own precautions to ensure that the process which you employ for accessing the Website or purchasing the Products does not expose you to the risk of viruses, malicious computer code or other forms of interference emanating from the Website (or any Linked Services) which may damage your own computer system.
16.3 You agree that you will not rely on any information contained on the Website, the advertised Products or the availability of such information and that any decision you make in relation to the purchase of the Products will be as a result of your own independent assessment of such information.
17.1 The Website may contain links to Linked Services. Those links are provided for convenience only and may not remain current or be updated by us.
17.2 We are not responsible for the content or privacy policies or practices of persons or companies associated with Linked Services. We will not be liable to you or any other person for any loss or cost arising in respect of use or access to Linked Services. When you access any Linked Services you do so entirely at your own risk.
17.3 Linked Services should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those Linked Services, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
17.4 Your interactions with organisations and/or individuals found on or through the Website, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organisations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
18.1 We do not grant you any intellectual property rights in any thing (including information and content such as films, sound recordings, literary works and artistic works, whether in a material form or not) on or accessible via the Website (Materials).
18.2 Any use or disclosure (including reproductions and communications to the public) of any Materials by you are on the basis that:
(a) such use and disclosure is at your own risk, including the risk of being sued for intellectual property infringement or misleading or deceptive conduct;
(b) you ensure that all links to Materials are presented or able to be used in a way that makes it clear to a viewer or user of the links or linked materials that the source of the Materials is the Website;
(c) you ensure that anyone who uses or reproduces your links to the Materials does so on the same terms as a person who accesses the Materials directly from the Website;
(d) you ensure that anyone who uses or reproduces your links to the Materials is not able to circumvent the limits (including technological restrictions and as to location) applying in respect of the Materials were the Materials to be accessed or sought to be accessed directly from rather than via their links;
(e) you do not link the Materials in a way that damages or takes advantage of our reputation, including in a way that suggests or implies that you have any association or affiliation with us or approval or endorsement; and
(f) you otherwise comply with our directions, including any take down or cease or desist directions.
19.1 We encourage a diverse community of customers on our Website, but in order to prevent scams, disputes and maintain the quality of our Products, you must not at any time:
(a) use the Website or platforms owned by or associated with us, including social media accounts and mobile applications, to attempt to sell any Products or mining equipment or related services (including any educational or investment or financial services) to our community; or
(b) seek to transfer any ownership of Products or hosting agreements you may have with us or a partner company to another person; or
(c) compete with products we may offer or have announced we plan to offer.
19.2 In addition, you must not:
(a) use the Website to impersonate any other person or entity;
(b) use the Website in a manner that jeopardises the security of your Account or anyone else’s (such as allowing someone else to log on as you on the Website);
(c) reverse engineer the code contained in the Website or upload files which contain viruses or malware which may cause damage to our property or the property of other individuals or post or transmit to our Website any material which we have not authorised including material which is, in our sole opinion, likely to cause annoyance, or which is racist, defamatory, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our security protocols;
(d) damage, disrupt, interfere with or misuse the Website, including by data mining, hacking, data harvesting or scraping or using similar data gathering and extraction tools in respect of the Website;
(e) launch any automated program or script, including web crawlers, web robots, web indexers, bots, viruses or worms or any program which makes multiple server requests per second or impairs the operation and/or performance of the Website;
(f) rent, lease, loan, trade, sell/re-sell or otherwise monetise the Website or related data or access to the same; or
(g) use any device, software or routine intended to damage or interfere with the proper working of the Website or to intercept or sequester any system, data, images or other multimedia elements from the Website.
20.1 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us.
20.2 Any information which you transmit to us is transmitted at your own risk. Once we receive your transmission, we will take reasonable steps to preserve the security of such information.
21.1 While we endeavour to ensure the Website is available twenty four (24) hours a day, we are not under any obligation to do so, and will not be liable to you if the Website is unavailable at any time or for any period. Your access to the Website may also be restricted at our discretion.
22.1 Your access to your Account on the Website may be terminated at any time by us without notice to you. Following termination, we will have no further obligations or liabilities to you. Any exclusions of liability or other provisions contained in these Terms of Sale which by their nature survive termination of these Terms of Sale will survive any such termination.
22.2 If your access to your Account on the Website is terminated by us following your breach of these Terms of Sale or your unlawful conduct (or suspected breach of these Terms of Sale or suspected unlawful conduct), termination will be in addition to any other rights we may have against you at law or in equity.
22.3 You may also cancel your Account and terminate your access to the Website at any time. Following termination, we will have no further obligations or liabilities to you.
23.1 Any notice will be deemed to be received within 24 hours of sending the electronic message (unless a rejection message is received) or publication online.
23.2 A party must immediately notify the other party in writing of any changes to its contact details.
24.1 You must not begin legal proceedings in connection with a dispute arising out of or in connection with these Terms of Sale unless the steps in this clause have been followed. However, this limitation does not apply:
(a) to a party who wants to apply for equitable relief or urgent interlocutory relief; or
(b) to a party who attempts in good faith to comply with this clause but cannot do so because the other party does not comply with those clauses.
24.2 If a dispute arises out of or in connection with these Terms of Sale (including the validity, breach or termination of it), a party may notify the other party to the dispute. The notice must specify the dispute and indicate that the notifying party wants the dispute to be referred to mediation.
24.3 If the dispute is not resolved within 10 Business Days after a notice under this clause has been served (Notice Period), the dispute is to be submitted to mediation.
24.4 The mediation must be conducted in Victoria, Australia in accordance with the mediation guidelines / rules of the Resolution Institute, save any process in these Terms of Sale which is inconsistent with those guidelines or rules will take precedence to the extent of any inconsistency.
24.5 If the dispute is not resolved within 1 month after the conclusion of the mediation held under the Resolution Institute Mediation Rules, either party may take legal proceedings in connection with the dispute.
24.6 Nothing in this clause prevents either party from commencing urgent interlocutory proceedings seeking injunctive relief.
24.7 Each party must keep confidential, all information relating to the subject matter of a dispute as disclosed during or for the purposes of dispute resolution under this clause, unless that party is compelled by a regulatory or government authority, court or tribunal to disclose that information.
25.1 Governing law and jurisdiction
This agreement is governed by the laws of Victoria and Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria and the Victorian division of the Federal Court of Australia and the courts of appeal from them.
25.2 Amendment
We reserve the right to amend this agreement from time to time in our absolute discretion. Amendments will be effective as soon as such changes are published on our Website. Your continued use of our Services constitutes agreement by you to the terms and conditions of this agreement as amended. You should regularly review these terms to ensure you are familiar with any amendments.
25.3 Precedence
Where there is inconsistency between the terms of this agreement and other content displayed as part of the Website concerning the Services, the content of this agreement will prevail to the extent of any inconsistency.
25.4 Force Majeure
We will not be liable for any delay or failure to perform our obligations under these Terms of Sale if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, government sanctions or orders, whether known or unknown at the time the parties enter into these Terms of Sale Terms) (Force Majeure Event).
25.5 Waiver
A provision of these Terms of Sale or a right created under it may not be waived except in writing signed by the party granting the waiver.
25.6 Exercise of a right
A party may exercise a right at its discretion and separately or together with another right. If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later. If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.
25.7 Remedies cumulative
The rights and remedies provided in these Terms of Sale are cumulative with and not exclusive of the rights and remedies provided by law independently of these Terms of Sale.
25.8 No merger
The rights and obligations of the parties (including under the warranties) will not merge on completion of any transaction under these Terms of Sale. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
25.9 Assignment
(a) These Terms of Sale are for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by these Terms of Sale.
(b) To the extent that any party purchases a Product from you, they are deemed to have taken an assignment of these Terms of Sale as published at the time of the purchase and you must provide that party with a link or copy of these Terms of Sale.
(c) We may assign our rights under these Terms of Sale without your consent at any time.
25.10 Severance
If any provision of these Terms of Sale are void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails the whole provision must be severed. That will not invalidate the remaining provisions of these Terms of Sale nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
25.11 Entire agreement
(a) These Terms of Sale constitute the entire agreement between you and us in respect of the subject matter of these Terms of Sale and supersedes all prior discussions, representations, undertakings and agreements between you and us in connection with the Products.
(b) None of our agents or representatives are authorised to make any representations, conditions or agreements not expressed by us in writing nor are we bound by any such statements.
25.12 Further assurances
Each party must, at its own expense, do everything reasonably necessary to give effect to these Terms of Sale and the transactions contemplated by it, including but not limited to the execution of documents.
25.13 Relationship
Nothing in these Terms of Sale constitutes the parties as partners or agents of the other and no party has any authority to bind the other legally or equitably save as expressly stated in these Terms of Sale.
25.14 Knowledge
In these Terms of Sale, a reference to the awareness or knowledge by you is a reference to the actual knowledge, information and belief you have as at the date of any transaction taking place pursuant to these Terms of Sale.
25.15 Costs
Each party must pay its own fees, costs and expenses incurred by it in connection with the negotiation, preparation, execution, delivery and completion of these Terms of Sale and the transactions contemplated by these Terms of Sale including without limitation its own legal, accounting and corporate advisory fees.
In this agreement:
Account means a user account you create on the Website as governed by terms and conditions available at https://miningstore.com.au/terms-of-use/;
Aggregated Data has the meaning given in clause 15.1(a);
Business Day means any day except a Saturday or a Sunday or other public holiday in Victoria;
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, however arising whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this agreement and to where the extent the context permits, includes all associated Loss;
Corporations Act means the Corporations Act 2001 (Cth);
Insolvency Event means the happening of any of the following events in relation to a body corporate:
(a) the body corporate becomes an externally-administered body corporate;
(b) a person is appointed a controller (as defined in section 9 of the Corporations Act), administrator, receiver, provisional liquidator, trustee for creditors in bankruptcy or an analogous appointment is made in respect of the body corporate;
(c) the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;
(d) the body corporate suspends payment of its debts, or enters, or takes any step towards entering, a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(e) a secured creditor of the body corporate enforces its security in relation to its debt for an amount in excess of $50,000; or
(f) the body corporate is, or its directors state that it is, unable to pay its debts as and when they become due and payable;
Linked Services has the meaning given in clause 14.1(a);
Loss has the meaning given in clause 11.7(b)(3) and includes legal costs and expenses;
Materials has the meaning given in clause 18.1;
Order has the meaning given in clause 4.1(b);
Order Confirmation has the meaning given in clause 4.1(d);
PPSA means the Personal Property Securities Act 2009 (Cth);
PPSR means the Personal Property Securities Register;
Personnel means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;
Privacy Policy means the policy available at https://miningstore.com.au/privacy;
Products mean the products advertised for sale on the Website, which include but are not limited to mining rigs, accessories and merchandise;
Process means to perform an operation or set of operations on data, content or information, whether or not by automated means, including to collect, record, organise, structure, store, adapt or alter, retrieve, consult, use, disclose by transmission, disseminate or otherwise make available, align, combine, restrict, erase or destroy;
Return Authorisation Form means a form provided to you in order to request the return of a Product;
Security Interest has the meaning as set out in section 12 of the PPSA;
Website means https://miningstore.com.au and/or any other website as we may operate from time to time;
Your Data means all data and information of any kind relating to you in whatever form and whether entered by or on your behalf using the Website, stored in, generated by, transferred to or processed through the Website, or otherwise transferred to us.
This Agreement applies when we provide you with hosting of your mining equipment. By requesting that we provide hosting services to you, you are agreeing to be bound by all of the terms and conditions set out below. If you do not agree with any of these terms and conditions you should not engage us to provide hosting services to you. Any terms regarding the purchase of your mining equipment from Mining Store Pty Ltd (Mining Store) will be subject to the Mining Store Terms and Conditions of Sale (Terms of Sale).
1.2 All Products purchased or procured by you from Mining Store will be subject to the Terms of Sale, which is separate to this Agreement.
1.3 All Products hosted by us will be subject to this Agreement unless otherwise agreed in writing.
1.4 By opting to host your Products with us, you are agreeing to be bound by this Agreement, unless otherwise agreed in writing.
1.5 Our internal records will be conclusive evidence of the Products hosted by us.
2.1 This Agreement commences on the date on which we commence providing the Services to you for the Term, and will be subject to renewal and termination in accordance with the terms set out below.
2.2 Subject to your continued compliance with the terms of this Agreement, we will provide you with:
(a) Hosting Services for Products purchased from Mining Store; and
(b) Support Services.
2.3 Our provision of the Services is subject to you:
(a) promptly providing any information, direction, approval or assistance which is reasonably required by us in connection with the Services; and
(b) paying any Fees when they are due and payable in accordance with this Agreement.
2.4 The Services under this Agreement may be provided by us or by one of our hosting providers.
2.5 In the event that our preferred hosting facility is unable to continue its hosting agreement with us or due to unforeseen circumstances, we will either:
(a) arrange alternative hosting solution for the Products; or
(b) return the Products to you,
with either option being at your discretion, save that you will be responsible for any shipping costs should you choose to select the option under clause 2.5(b).
2.6 All announcements regarding hosting facilities, support, scheduled maintenance or upkeeps will be made via our community Telegram
3.1 Invoicing
(a) We will send you a tax invoice for the Fees due in respect of the Services, monthly in advance.
(b) Full payment of the Fees invoiced is due by the due date shown on that invoice without any offset or withholding, notwithstanding any dispute.
(c) You agree that if payment is made through Paypal or another intermediary service, that you will not seek to have any reclaim, refund, reversal or call-back of any payment without first following the process required in clause 13 and in the event you breach this clause you agree to pay us liquidated damages equal to twice the amount of the reclaim, refund, reversal or call-back, being a genuine pre-estimate of the loss, costs and administrative time that we will incur as a result of any breach of this clause and you agree that this clause is not a penalty.
3.2 Changes to Fees
(a) Should any regulation, sanction or other binding implication upon the Services become relevant, we reserve the right to increase the Fees as necessary to allow for this impact on our business. We will use reasonable endeavours to provide you with prior written notice of the increase of the Fees as a result of any regulation, sanction or binding implication. If you no longer wish to host the Products with us following the increase in Fees under this clause, you may terminate this Agreement in accordance with clause 6.
(b) The Fees charged may include electricity charges which may vary on a daily basis and may be charged on a marked-up or recovery calculation.
3.3 Failure to pay fees
(a) If any Fees are not paid by the due date of the invoice, then without limiting our other rights we may:-
(1) suspend the provision of the Services until full payment of the overdue amount is made (together with any interest in accordance with clause Error! Reference source not found.); and
(2) require you to pay a 5% late fee on the 8th day of being overdue. A further 5% late fee will be applied every 7 days as is passed on to us by all of our utility companies.
3.4 Overdue accounts
(a) A service charge of 15% per month will be charged on all overdue accounts. In addition to the service charge, an account keeping fee of AUD $20 per month will be charged on all accounts with invoices and transactions that fall outside this Agreement.
(b) All payments made by you will be applied at our absolute discretion to any service charges, account keeping charges and outstanding invoiced amounts.
(c) If all attempts by us to contact you for payments due have failed, we will employ a debt collecting agency to collect outstanding sums from you.
3.5 Default payment
(a) We reserve the right to charge interest on any outstanding sum in accordance with this Agreement, without notice to you.
(b) Should any payments be dishonoured, you shall be liable to us for any dishonour fees incurred by us.
(c) In the event that:
(1) we consider that there is a material risk that you will be unable to pay any amount owing to us and we give you notice of this opinion; or
(2) you fail to make due payment on any invoice supplied by us by the due date; or
(3) you are an individual and you commit an act of bankruptcy; or
(4) you are a company and it has an administrator, manager, trustee, official manager or receiver, liquidator or any other person authorised to enter into possession or control of you; or
(5) you have a judgment entered against you in any court; or
(6) a secured creditor seizes or takes possession of any collateral asset in your possession as a security obligation under a financing contract; or
(7) you enter an invoice finance or factoring arrangement without the our written consent,
this will be considered to be a default.
3.6 Disposal of Products
(a) If you fail to pay an invoice issued by us for more than 30 days you authorise us to:
(1) If, in our opinion, the Product has limited to no market value, dispose of the Product; or
(2) If, in our opinion, the Product has a market value likely to exceed the costs of selling the Product, sell that Product and apply the proceeds of sale to any amounts owing to us or our related entities or partners.
4.1 We will provide a rebate of Fees calculated on a pro-rata basis for any downtime or human error if such downtime or human error was solely due to our negligent or wilful act or omission, and will be limited to actual electrical costs incurred.
4.2 Any rebate will be applied as credit to your next invoice.
4.3 Under no circumstances will we be liable for any claim for loss of profits, loss of opportunity, loss of chance or consequential or indirect loss or damage howsoever arising.
5.1 We acknowledge that the legal and equitable title to the Products remains with you for as long as you comply with the terms of this Agreement.
5.2 In providing the Services to you, we agree to:
(a) hold the Products as bailee and fiduciary agent of you;
(b) store the Products separate from your other products in such a way as to clearly indicate at all times that the Products are owned by you;
(c) ensure that, at all times, the Products are properly stored, protected and readily identifiable; and
(d) to accept this appointment as bailee and fiduciary agent of you.
5.3 Notwithstanding any other provision to the contrary, we reserve the following rights in relation to the Products in the event of breach of clause 9.9 by you:
(a) legal and equitable ownership of the Products;
(b) to take possession of the Products;
(c) to keep or resell any of the Products repossessed; and
(d) any other rights and entitlements contained in the PPSA.
5.4 You agree that:
(a) you shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by us (including consequential losses and damages) as a result of us exercising our rights under this clause; and
(b) you shall indemnify us for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as result of any and all prosecution, actions, demands, claims or proceedings brought by or against us in connection with the taking possession of the Products or the exercise by us of our rights under this clause, and you shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
5.5 The parties agree that this creates a Security Interest for the purposes of the PPSA and that we shall be entitled to register the Security Interest on the PPSR and you will not make any objection to such registration.
5.6 You irrevocably agree to assist with the prompt registration of the Security Interest, and agrees to sign all PPSR registration forms and acknowledgements and reimburse all our costs in obtaining registration of the Security Interest.
5.7 It is agreed that the Security Interest applies to all goods that have previously been supplied as well as to all present and after acquired Products.
5.8 You agree that you will not make or register a Financing Change Statement as defined in section 10 of the PPSA or make or demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Products without our prior written consent.
5.9 You acknowledge and agree that you waive any rights you may have under section 115 of the PPSA upon enforcement and waive any rights you may have to receive a Verification Statement.
5.10 If chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under this Agreement, you agree that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those Security Interests.
5.11 In this clause, Financing Change Statement, Verification Statement and Financing Statement have the meaning as set out in section 10 of the PPSA.
6.1 You must provide us with all such assistance as may be necessary or desirable to assist us in providing the Services.
6.2 You must not enter the facility where the Product is stored without our prior written consent.
6.3 You must at all times follow our reasonable instructions, directions or guidance concerning the hosting of the Product.
6.4 It is your sole responsibility to procure, maintain and comply with for the duration of this Agreement, any license or clause under this Agreement.
6.5 You must ensure all Fees are paid when due and payable under the terms of this Agreement.
7.1 In Australia, our services come with guarantees that cannot be excluded under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).
7.2 Nothing in this Agreement excludes, restricts or modifies or purports to exclude or restrict the conditions, warranties and undertakings arising under the Australian Consumer Law. Our liability for death or personal injury arising from our negligence or for any condition, warranty, right or liability implied in this Agreement by law cannot be excluded.
7.3 You acknowledge that:
(a) hosting the Products with us is at your own risk and that the Products are not insured at our facilities;
(b) at no time prior to accepting this Agreement have you relied on our skill or judgement and that it would be unreasonable for you to do so;
(c) we do not make any guarantees as to the Services or the proper functioning of the Products for their intended purposes, being hosted at our facilities;
(d) the hosting providers will be responsible for any damage, theft or any event that may impact the proper functioning of the Products while being hosted at the hosting provider facilities;
(e) we will not be liable to compensate you for any damage, theft or any event that may impact the proper functioning of the Products while being hosted at our facilities or at a hosting provider’s facilities;
(f) any downtime due to maintenance or relocation of the Products is expected and we will not be liable to compensate you for any loss incurred during the downtime period;
(g) we will not be liable for any loss of profits or downtime resulting from any events, including any events out of our control including pool errors, regulatory restrictions or any other circumstances that would make the Services impractical or illegal or cause downtime or outages affecting any performance of the Products; and
(h) it is your responsibility to report to us any issues with respect to the performance of the Products and we will not be liable for any loss or downtime due to such unreported performance issues.
7.4 To the maximum extent permitted by law, all other warranties or conditions which are not guaranteed by law are expressly excluded, including liability for loss of expectations, loss of profits, incidental or consequential loss or damage caused by breach of any express or implied warranty or condition. In particular, we do not warrant that the Services will be free from interruptions, errors or downtime; or
7.5 To the extent that we are in breach of any consumer guarantee or any other warranty or condition that cannot be excluded from this Agreement:
(b) our maximum liability to you is limited to the Fees incurred from the previous invoiced month or $100, whichever is lower.
8.1 In agreeing to host the Products with us, you acknowledge and agree that:
(a) this Agreement applies between you and us only;
(b) there is a risk of malicious actors seeking to interfere with the Products and that we expressly disclaim any liability for loss associated with that circumstance; and
8.2 In agreeing to host the Products with our hosting providers, you acknowledge that the identity and location of the hosting provider facilities will be subject to confidentiality provisions of non- disclosure agreements between us and the hosting providers and you acknowledge that we will not disclose this information to you.
8.3 In entering into this Agreement, you represent and warrant to us that:
(c) you have not entered into this Agreement in reliance on or as a result of any statement or any conduct of any kind or on behalf of any other person;
(d) you have independently satisfied yourself in respect of all matters in connection with this Agreement;
(e) entry into the Agreement does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject;
(f) you will not infringe or violate any of the terms of this Agreement;
(g) you possess the legal authority to enter into this Agreement and to form a binding agreement under any applicable law, to procure the Services in accordance with this Agreement, and to fully perform your obligations hereunder;
(h) if you procure the Services on behalf of a business, corporate or charitable entity, you represent, warrant and agree:
(1) that you are duly authorised under any applicable law to represent such entity in connection with this Agreement and to commit it to be bound by this Agreement;
(4) you possess the knowledge and judgment necessary to decide whether to otherwise engage with us;
(5) you are solely responsible for complying with applicable laws regarding whether procuring the Services complies with laws applicable to you; and
8.4 Continuous warranties
You represent and warrant to us that each of the warranties in clause 8.3 are true and accurate, and not misleading or deceptive as at the date of this Agreement and, except as expressly stated, will be true, accurate and not misleading or deceptive each at the time the Services are provided to you.
8.5 Notification
You must disclose to us anything that has or will constitute a material breach of a warranty under clause 8.3 or cause any such warranties to be untrue or inaccurate, as soon as practicable after you become aware of it.
8.6 Mutual warranties
(b) the execution and delivery of this Agreement have been properly authorised by all necessary action of each party; and
(c) this Agreement constitute a legal, valid and binding agreement enforceable in accordance with its terms by appropriate legal remedy.
8.7 Implied terms
(b) Except only for those rights and remedies that you have in respect of the Services under the Australian Consumer Law, and any other similar Federal or State statute which cannot be lawfully excluded, restricted or modified:
(1) the Services are provided on an “as is” basis and all conditions and warranties, whether statutory or otherwise, are excluded in relation to the Services;
(3) we are not liable to you for any loss whatsoever, including any damage, loss, claim, liability, cost or expense (whether direct or indirect, consequential or incidental) loss of profit, revenue, anticipated savings, contract, opportunity or goodwill (Loss) which you suffer, incur or are liable for in connection with our Services.
9. Term and Termination
9.1 The Initial Term of two years will be extended automatically for a further term of 1 year unless cancelled in writing within 30 days of the end of the Initial Term (each a Subsequent Term).
9.2 At any time during the Initial Term, we may terminate this Agreement without cause strictly at our discretion by providing you with 30 days written notice.
9.3 During any Subsequent Term, either party may terminate this Agreement by providing 30 days written notice to the other party.
9.4 If you fail to pay the Fees in relation to this agreement on the Due Date, then without limiting our other rights, we may:
(a) temporarily suspend the provision of the Services until payment is received, inclusive of any accrued interest, subject to clauses 3.3 and 3.5; and/or
(b) terminate this Agreement with immediate effect by giving you written notice of termination.
9.5 If a party commits any default (Defaulting Party) with respect to the due observance or performance of any of its obligations under this Agreement, then the other party (Innocent Party) may, without prejudice to any other rights the Innocent Party may have, give written notice to the Defaulting Party identifying the default and requiring that the default be remedied (Default Notice).
9.6 If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate this Agreement by written notice to the Defaulting Party.
9.7 A party may terminate this Agreement by written notice if it reasonably considers that the other party is or is likely to become insolvent.
9.8 If this Agreement is terminated:
(a) we will not pay any refund of any pre-paid Fees;
(b) you must pay us all outstanding amounts that are payable as at the date of termination of this Agreement; and
(c) such termination will be without prejudice to the rights of each party against any other in respect of anything done or omitted under this Agreement prior to such termination.
9.9 No later than 7 days after the date of termination, you must provide us with an address for the delivery of your Product and pay us the estimated shipping costs and our administrative costs of attending to the decommissioning and shipping of your Product. If you fail to comply or pay any final invoice we issue within 30 days then we are entitled to take the steps set out in clause 3.6 or 5.3 without further notice to you. For the avoidance of doubt, you acknowledge that delivery of your Product may take 12 weeks, during which time, you may use our on-site service centre for storage of your Product.
10. Indemnity
10.1 You must indemnify us and our Personnel and keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, a breach of a warranty in clauses 8.3, 8.4 or 8.6 by you without limitation.
10.2 We must indemnify you and keep you indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which you may suffer, sustain or incur arising from, or connected with, our breach of a warranty in clause 8.6 without limitation.
10.3 To the maximum extent permitted by law, you agree to indemnify and keep indemnified us and our Personnel against any action, liability, cost, claim, loss, damage, proceeding or expense suffered or incurred directly or indirectly arising from your procurement of the Services, or from your violation of this Agreement.
11. Disclaimer and Limitation of liability
11.1 You acknowledge that the power consumption of your Products may fluctuate:
(a) if new, by up to 15%;
(b) if used, by more than 25%;
of the expected power consumption levels.
11.2 To the maximum extent permitted by law, we do not accept responsibility for any loss or damage (including indirect, special or consequential loss or damage), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
(a) the Services being interrupted or unavailable notwithstanding that we will aim for an uptime of 95% at all hosting facilities , however you acknowledge that this may vary and that we will not be responsible for such interruptions or unavailability due to reasons out of our control;
(b) any failure or lack of any security measures by us, or any third party including in relation to the storage or transfer of data;
(c) viruses, malicious codes or other forms of interference effecting the proper functioning of the Products hosted by us;
(d) unauthorised access to or use of, our servers and/or any information stored on them;
(e) any failure or omission on our part to comply with our obligations as set out in this Agreement;
(f) any loss, damage or confiscation of the Products due to a Force Majeure Event; and
(g) any maintenance and repairs on the Products carried out by us or a third party.
11.3 Where a guarantee or warranty is not able to be excluded from this Agreement, our liability for any breach of the guarantee or warranty will, if and to the extent permitted at law, and subject to any qualifications in such laws, be limited to one or more of the following (at our option):
(a) the provision of Services;
(c) the payment of the costs of procuring equivalent Services; or
11.4 We will have no liability or responsibility for your compliance with laws or regulations governing the procurement of our Services. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules and regulations of governmental authorities in your jurisdiction.
11.5 If any warranty or condition is implied by legislation which may not be excluded (a non- excludable term) then our liability for any breach of that non-excludable term is limited solely to the resupply of the relevant Service or payment to you of the cost of having the Service provided again (at our option).
11.6 Apart from the express warranties contained in this agreement and subject to any non- excludable terms, all warranties with respect to the Services are hereby expressly excluded. If circumstances arise where you are entitled to claim damages from us notwithstanding the other provisions of this agreement, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the lesser of:
(a) the amount of any actual loss or damage which you sustain; or
(b) the total amount of the Fees you have paid to us in the preceding 12 months.
11.7 The limitation of our liability in clause 11.5 will not apply to our liability arising in connection with death, personal injury or infringement of third party intellectual property rights.
11.8 In no event will we be liable for any loss of or damage to data, loss of profits, loss of savings, loss of revenue, indirect or consequential loss or punitive or exemplary damages even if we have been advised of the possibility of such loss or damages.
11.9 For the avoidance of doubt, any repair to a Product by us will be in accordance with the table in the Schedule.
12.1 Any notice will be deemed to be received within 24 hours of sending the electronic message (unless a rejection message is received) or publication online.
12.2 A party must immediately notify the other party in writing of any changes to its contact details.
13.1 You must not begin legal proceedings in connection with a dispute arising out of or in connection with this Agreement or take any step to reverse or seek a refund from a third party payment provider unless the steps in this clause have been followed.
13.2 However, this limitation does not apply:
13.3 If a dispute arises out of or in connection with this Agreement (including the validity, breach or termination of it), a party may notify the other party to the dispute. The notice must specify the dispute and indicate that the notifying party wants the dispute to be referred to mediation.
13.4 If the dispute is not resolved within 10 Business Days after a notice under this clause has been served (Notice Period), the dispute is to be submitted to mediation.
13.5 The mediation must be conducted in Victoria, Australia in accordance with the mediation guidelines / rules of the Resolution Institute, save any process in this Agreement which is inconsistent with those guidelines or rules will take precedence to the extent of any inconsistency.
13.6 If the dispute is not resolved within 1 month after the conclusion of the mediation held under the Resolution Institute Mediation Rules, either party may take legal proceedings in connection with the dispute.
13.7 Nothing in this clause prevents either party from commencing urgent interlocutory proceedings seeking injunctive relief.
13.8 Each party must keep confidential, all information relating to the subject matter of a dispute as disclosed during or for the purposes of dispute resolution under this clause, unless that party is compelled by a regulatory or government authority, court or tribunal to disclose that information.
14.1 Governing law and jurisdiction
This Agreement are governed by the laws of Victoria and Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria and the Victorian division of the Federal Court of Australia and the courts of appeal from them.
14.2 Amendment
We reserve the right to amend this Agreement from time to time in our absolute discretion. Amendments will be effective as soon as such changes are published on our Website. Your continued use of our Services constitutes agreement by you to be bound by this Agreement as amended. You should regularly review this Agreement to ensure you are familiar with any amendments.
14.3 Precedence
Where there is inconsistency between this Agreement and other content displayed as part of the Website concerning the Services, the content of this Agreement will prevail to the extent of any inconsistency.
14.4 Force Majeure
We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, decrees, orders or other government intervention, government sanctions or orders, whether known or unknown at the time the parties enter into this Agreement) (Force Majeure Event).
14.5 Waiver
A provision of this Agreement or a right created under it may not be waived except in writing signed by the party granting the waiver.
14.6 Exercise of a right
14.7 Remedies cumulative
The rights and remedies provided in this Agreement are cumulative with and not exclusive of the rights and remedies provided by law independently of this Agreement.
14.8 No merger
The rights and obligations of the parties (including under the warranties) will not merge on completion of any transaction under this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
14.9 Assignment
(a) This Agreement is for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by this Agreement.
(b) To the extent that any party purchases a Product from you, they are deemed to have taken an assignment of this Agreement as published at the time of the purchase and you must provide that party with a link or copy of this Agreement.
(c) We may assign our rights under this Agreement without your consent at any time.
14.10 Severance
If any provision of this Agreement is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails the whole provision must be severed. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
14.11 Entire agreement
(a) This Agreement constitutes the entire agreement between you and us in respect of the subject matter of this Agreement and supersedes all prior discussions, representations, undertakings and agreements between you and us in connection with the Services.
14.12 Further assurances
Each party must, at its own expense, do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including but not limited to the execution of documents.
14.13 Relationship
Nothing in this Agreement constitutes the parties as partners or agents of the other and no party has any authority to bind the other legally or equitably save as expressly stated in this Agreement.
14.14 Knowledge
In this Agreement, a reference to the awareness or knowledge by you is a reference to the actual knowledge, information and belief you have as at the date of any transaction taking place pursuant to this Agreement.
14.15 Costs
Each party must pay its own fees, costs and expenses incurred by it in connection with the negotiation, preparation, execution, delivery and completion of this Agreement and the transactions contemplated by this Agreement including without limitation its own legal, accounting and corporate advisory fees.
Agreement means this agreement as amended or supplemented in accordance with its terms;
Fees means the fees payable by you for the Services as further described in clause 3;
Hosting Services means hosting services we agree to provide you under this Agreement;
Loss has the meaning given in clause 8.7(b)(3) and includes legal costs and expenses;
Privacy Policy means the policy available at https://miningstore.com.au/privacy ;
Products mean the computer systems known as “mining rigs” with pre-installed software which have been purchased or procured by you which are being hosted at our facilities;
Services means the Hosting Services and the Support Services; and
Support Services means any regular scheduled maintenance, support and upkeep services to the Products and any reasonable attempt by us to provide repairs or maintenance to faulty Products, such repairs or maintenance to be at additional costs.
Repair costs will be as follows [*subject to change]:
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