Allgemeine Geschäftsbedingungen

Bitkern Group AG, CHE-244.677.663,
Dammstrasse 16, 6300 Zug, Switzerland

Version: April 2024

Preamble

Bitkern. Bitkern Group AG, CHE-244.677.663, is a Swiss stock company with its seat in Zug and its business address at Dammstrasse 16, 6300 Zug, Switzerland ("Bitkern"). Bitkern and its group companies sell mining hardware and operates data centers with power supplies in Europe, North & South America, and Asia, which are suitable for the use for mining of Crypto Assets with appropriate mining hardware.
Customer. The customer is purchasing mining hardware and intends to operate its hardware for the mining of Crypto Assets in a data center ("Customer"). The Customer is commercially engaged in the mining of Crypto Assets as part of an entrepreneurial activity.
Terms. The following terms and conditions govern all purchases of Mining Hardware between Bitkern and the Customer, including their delivery to the Delivery Destination ("Terms"). Any conflicting terms and conditions of the Customer are expressly rejected.

§ 1. Definitions

Bitkern	means Bitkern Group AG, CHE-244.677.663, a Swiss stock company with its seat in Zug and its business address at Dammstrasse 16, 6300 Zug, Switzerland.
Contract	means a contract for the purchase of Mining Hardware concluded between Bitkern and the Customer as defined in § 2 (6).
Crypto Assets	means crypto-assets pursuant to Art 3 (5) of Regulation 2023/1114 on markets in crypto-assets (MiCAR).
Customer	means a customer willing to purchase Mining Hardware from Bitkern.
Delivery Costs	means indicative costs for transport, freight, insurance, customs duties, taxes, levies and other fees or charges included in the Purchase Price.
Delivery Destination	means the destination the Mining Hardware is delivered to by Bitkern as defined in § 4 (1).
Mining Hardware	means the Mining Hardware purchased by the Customer and delivered to the Delivery Destination as defined in § 2 (1).
Notification of Defect	means a written notification of defects of the Mining Hardware by the Customer as defined in § 5 (4).
Offer	means an offer for the purchase of the Mining Hardware by Bitkern as defined in § 2 (3).
Offer Period	means the offer period defined in § 2 (4).
Purchase Price	means the Purchase Price of the Mining Hardware as defined in § 3 (1).

§ 2. General

Scope. Bitkern is willing to sell and the Customer is willing to purchase mining hardware under the conditions specified in the Terms. The mining hardware will be delivered by Bitkern to the Delivery Destination as defined in § 3 (the "Mining Hardware").
Entrepreneur. Bitkern sells Mining Hardware to Customers commercial engaged in the mining business as part of the Customer's entrepreneurial activity. Bitkern shall have the right to demand proof of the Customer's entrepreneurial status by requiring the Customer to send to Bitkern appropriate documentation.
Offers. Bitkern shall submit the Customer an offer for the purchase of the Mining Hardware, which is non-binding insofar as the offer is not explicitly designated as binding (the "Offer").
Validity. Unless otherwise stated, the Offer is valid until 24:00 CET of the day on which the Offer is sent by Bitkern to the Customer (the "Offer Period").
Acceptance. The Customer shall accept the Offer by transferring the Purchase Price within the Offer Period to Bitkern.
Conclusion of Contract. Upon acceptance as set out in § 2 (5) of the Offer a contract for the purchase of the Mining Hardware between Bitkern and the Customer is concluded (the "Contract").
Customer's Offer. In case the Customer accepts the Offer after expiry of the Offer Period, the acceptance of the Customer shall be deemed a new offer by the Customer to Bitkern. Bitkern may accept or reject such offer by written message to the Customer or send a new offer with an adapted Purchase Price.
Information. Information on mining hardware in advertisement material of Bitkern, such as catalogues, brochures, folders, presentations etc. is non-binding and shall only become part of the Contract between Bitkern and the Customer insofar as the Offer explicitly refers to such information.

§ 3. Prices, Payment, Costs

Purchase Price. The purchase price for the mining hardware indicated on Offers are in USD and exclusive of VAT ("Purchase Price").
VAT. The Purchase Price is subject to VAT at the applicable statutory rate.
Currency. The Purchase Price may also be indicated in EUR, CHF or USDT, and other currencies or Crypto Assets at the applicable exchange rate for USD in the Offer. The indicated Purchase Price is only valid within the Offer Period.
Advance Payment. The Customer shall transfer the Purchase Price to Bitkern's bank account or wallet address within the Offer Period. Payment is made only upon receipt of the Purchase Price in the bank account or wallet address of Bitkern. Bitkern is under no obligation to deliver the Mining Hardware and execute the Contract pursuant to § 3 of these Terms until the Customer has paid the Purchase Price as defined in § 3 (1).
Delivery Costs. The Purchase Price includes costs for transport, freight and insurance, customs duties, taxes, levies and other fees or charges ("Delivery Costs"). Delivery Costs are indicative and may be higher than initially estimated by Bitkern. Bitkern determines Delivery Costs based on publicly available information and past sales in order to calculate the Purchase Price. Bitkern shall estimate the Delivery Costs as accurately as possible in advance based on the information available. In international trade, unforeseen inspections by the authorities may always occur, which may result in increased Delivery Costs, which shall be borne by the Customer.
Right to Adjustments of the Purchase Price. Due to delays in delivery, short-term changes in customs regulations of the country of destination or other circumstances beyond Bitkern's control, Delivery Costs may change at any time. Bitkern shall have the right to adjust the Purchase Price pursuant to § 3 (1) to reflect any increase in Delivery Costs imposed. Bitkern shall provide the Customer with a list of the Delivery Costs. Ultimately the Customers shall bear all Delivery Costs.
Payment Method. Payment methods shall be indicated on the Offer. In general, payment may be made in USD, USDT, CHF or EUR by transferring the Purchase Price to the respective bank account or wallet address indicated on the Offer at the applicable exchange rate USD/EUR, USD/CHF and USD/EUR.

§ 4. Delivery, Transfer of Risk

Delivery Destination. The Mining Hardware is delivered either (a) to a data center to be specified by the Customer or (b) to another destination to be specified by the Customer (the "Delivery Destination"). Bitkern shall not be responsible for installing and maintaining the Mining Hardware for the Customer, unless a separate agreement for hosting the Mining Hardware between Bitkern and the Customer has been concluded.
Delivery time. Delivery times are estimates and always represent a prospective time for the provision of the Mining Hardware and handing over to the Customer, unless explicitly otherwise agreed between Bitkern and the Customer. Delivery times and deadlines will be adhered to by Bitkern as far as possible.
Extension of delivery time. Any subsequent change requests or requests for additional services on the part of the Customer shall extend the delivery time appropriately. The same applies in case of unforeseen obstacles beyond Bitkern's sphere of responsibility or that of a presupplier, such as force majeure, strike, lockout, delay in the supply of essential goods, other materials or parts. In particular, the delivery time shall be extended by the duration of actions or measures of authorities, such as inspections of the Mining Hardware by customs authorities. An extended delivery time is not included in the delivery time estimated by Bitkern.
Transfer of Risk. The Mining Hardware shall be delivered to the Delivery Destination, unless specifically indicated otherwise on the Offer. Bitkern shall bear no risks in respect of transportation of the Mining Hardware to the Delivery Destination; in the event of default of acceptance by the Customer, the risk shall pass to Bitkern at the time of readiness for dispatch. This shall also apply if the delivery is divided into partial deliveries or if we have assumed other ancillary services.
Compensation. The Customer shall only have a claim for compensation in cases of late delivery or non-delivery, if Bitkern has acted with intent or gross negligence.
Default in Acceptance. Mining Hardware not accepted by the agreed delivery date shall be stored for a maximum of six weeks at the risk and expense of the Customer. The storage fees shall be borne by the Customer. At the same time, Bitkern shall be entitled either (a) to insist on performance of the Contract or, after setting a reasonable grace period, to withdraw from the Contract. In both cases, Bitkern shall have the right to charge a contractual penalty of 50 % of the invoiced amount (excluding VAT).
Authorization. The Customer shall ensure that third-parties at the Delivery Destination are instructed and authorized to accept the Mining Hardware on behalf of the Customer.

§ 5. Representations and Warranties, Notice of Defects

Warranties. Except as otherwise agreed, the statutory warranty pursuant to §§ 922 of the Austrian Civil Code (ABGB) is waived.
Performance. Bitkern does not guarantee that a specific performance or yield is associated with the mining hardware. Mining of Crypto Assets is not only dependent on the chosen mining hardware, but also on the mining difficulty, which is not under the influence of Bitkern.
Proof. The Customer shall always prove the existence of defects.
Notice of Defects. Defects shall be notiﬁed in writing without delay upon receipt of delivery of the Mining Hardware, at the latest within 5 days, latent defects within 3 days of discovery (the "Notification of Defect"). In case the Customer may not check the Mining Hardware itself, since it is delivered to a location to which the Customer might not have access, the Customer shall be responsible for requiring third-parties at the Delivery Destination to carry out the Notification of Defect. Notification of Defect must adequately explain and substantiate any defects of the Mining Hardware.
Objection. If the Customer has not raised objections by sending a Notification of Defect within the time limit set out in § 5 (4) the Mining Hardware delivered shall be deemed as approved and accepted. The Customer shall have no warranty claim against Bitkern, if the Customer fails to submit a Notification of Defect.
Warranty. The Customer shall have no warranty claim against Bitkern, if the Customer engages a third party not authorized by Bitkern to carry out changes or maintenance of the Mining Hardware.
Minor Technical Changes. Minor technical changes as well as minor deviations from the Offer are deemed approved in advance by the Customer.
Usage. Bitkern shall not be liable for damages arising through improper or unsuitable usage, defective or neglectful treatment or storage of the Mining Hardware as set out in § 4 (6).
Return Delivery. In case of return of the Mining Hardware, the Customer shall transfer the Mining Hardware to Bitkern or the manufacturer indicated by Bitkern at his own expense.
Damages. Claims for damages in cases of slight negligence are excluded; this does not apply to personal injury. Claims for compensation shall lapse 12 months after knowledge of the damage and the damaging party, in any case 3 years after provision of the service or delivery.
Liability. Bitkern shall not be liable for damages resulting from delayed delivery of the mining hardware. Bitkern's indicated delivery times are estimates only and are subject to circumstances beyond Bitkern's control. Customers are not entitled to claim financial losses or lost profits from Bitkern due to delayed delivery.

§ 6. Ownership, Retention of Title

Retention of Title. Ownership and title to the Mining Hardware delivered by the Bitkern shall be retained by Bitkern till full payment of the Purchase Price including Delivery Costs has been made.
Transfer of Ownership. Ownership of the Mining Hardware is transferred to the Customer at the time of delivery of the Mining Hardware to the Delivery Destination, provided that the Purchase Price has been paid.
Encumbrances. Any pledge or other encumbrance of the Mining Hardware owned by the Bitkern is not acceptable.
Return. The Bitkern shall be entitled to request immediate return of Mining Hardware delivered if the Customer did not pay the Purchase Price duly and on time.
Costs. Costs incurred for the enforcement of the Bitkern's title by requesting the return of the Mining Hardware shall be borne by the Customer.

§ 7. Miscellaneous

Governing Law. These Terms shall be governed by, and construed and interpreted in accordance with, the laws of Austria, with the exception of the conflict of laws rules of Austrian private international law.
Venue. Each Party agrees that the Commercial Court of Vienna (Handelsgericht Wien) shall have exclusive jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with these Terms.
Communication. Declarations or notices of the Customer shall be addressed to Bitkern Group AG, CHE-244.677.663, Dammstrasse 16, 6300 Zug, Switzerland.
Counterclaims. The Customer shall not offset any counterclaims, likewise it shall not be admissible to exercise a retention right without legally binding title or on the basis of claims arising from other transactions.
Severability clause. Should any provision of these Terms be invalid, voidable or unenforceable, the validity of these Terms shall not be affected to the extent that this is in accordance with the intent of the Parties as set forth in the provisions of these Terms relating thereto. Such a provision shall then be replaced by an effective and enforceable provision which has such a legal and above all economic content as the invalid one or comes closest to it.

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