Helium Miner Host Contract
This Hosting Agreement (this "Agreement") take effect as of the date you lease the Helium Hotspot (the "Effective Date") from Gamache Services LLC and contains the terms and conditions upon which Gamache Services LLC leases Hotspot to Host. In this Agreement, "Host" means the individual, company or entity that has entered into this Agreement with Gamache Services LLC; " and "party" and "parties" means Host and/or Gamache Services LLC, as the context requires. 1. Term This Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year (the "Initial Term"). This Agreement shall renew automatically at the end of the Initial Term and shall thereafter continue for successive one-year periods until terminated by either party as set forth in Section 8 below (the Initial Term and each subsequent term shall be referred to as the “Term”). 2. Delivery of Hotspot Gamache Services LLC will deliver the Helium Hotspot to the Host DDP-Host’s Residence using standard shipping methods. In this Agreement, “Helium” means Helium Systems Inc., the manufacturer of some Hotspots and developer of the Helium blockchain. "Hotspot" means a Helium compatible Hotspot or Miner leased under this Agreement, which is a device that combines LoRaWAN wireless protocol with Helium blockchain technology to enable any LoRAWAN device to transfer data on the Helium Network. “Residence” means the primary residence of the Host where the Hotspot will be installed. 3. Use of Hotspot 3.1 Initial Setup. Host shall install and use the Hotspot at its Residence as follows: Within (3) days from Host’s receipt of the Hotspot unless otherwise agreed with Gamache Services LLC in writing, Host shall: ● Place the Hotspot by a window, when possible, one without a bug screen and unobstructed. ● Plug the Hotspot into a 120V outlet. ● Connect the Hotspot to Host’s personal internet connection by Ethernet. ● Notify Gamache Services LLC of any operational issues with the Hotspot. Failure to do so within this 3-day period constitutes waiver of all claims against Gamache Services LLC for the Hotspot and Gamache Services LLC should have no further liability with respect to the Hotspot. During the Term of this Agreement, Host shall: ● Not host any other Helium Hotspots at the Residence. Violation of this term shall constitute a material breach of this Agreement; and ● Use the Hotspot only in the Territory. “Territory” means U.S. or Canada, depending on the Residence of the Host. 3.2 Helium T&C’s. Host understands and agrees that the Hotspots are manufactured by Helium. 3.3 Helium’s Notice. Host understands that the Hotspot can earn Helium Network Tokens (defined in Section 5) only when it is powered on and connected to the Internet. Likewise, moving or obstructing the Hotspot may make it more difficult for third-party devices to connect to the Hotspot. This can also reduce Helium Network Tokens earnings. Regardless, Gamache Services LLC does not guarantee any Hotspots will earn Helium Network Tokens. Furthermore, Helium Network Tokens may have no value, and Gamache Services LLC makes no promises or warranties as to the value of Helium Network Tokens. 3.4 General Restrictions. Host shall not, directly or indirectly, (a) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Hotspot or the rights granted to Host with respect to any Hotspot (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on the Hotspot, (c) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Hotspot by reverse engineering, disassembly, decomplication, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), (d) remove, obscure or alter any proprietary notice on the Hotspot, (e) use or permit the access to or use of any Hotspot for any unlawful activity, including exporting in violation of applicable law, or (f) access or use the Hotspot or any other deliverable for any use other than the those authorized in this Agreement. 3.5 Legal Compliance. Host will use the Hotspot in a good and careful manner and will comply with all Gamache Services LLC’s requirements and recommendations respecting the Hotspot and with any applicable law, whether local, state or federal respecting the use of the Hotspot, including, but not limited to import/export, intellectual property, data privacy and data security laws. 3.6 Support. From time to time, at Gamache Services LLC’s sole discretion, Gamache Services LLC may assist Host to troubleshoot the use of Hotspot requirements to ensure that the Hotspot is functioning properly as described in Helium’s published product specifications. If an operational issue arises, Host shall promptly contact Gamache Services LLC at https://www.gamachetech.com detailing the specific operational issue. Gamache Services LLC may request the Host to run a diagnostic report via the Helium App. Depending on the results of the report, Gamache Services LLC may work directly with the Host or work directly with Helium to identify and solve the issue. If the issue is determined to be a manufacturing defect, Gamache Services LLC will provide Host with a shipping label to ship the Hotspot to Helium. As Gamache Services LLC is not the manufacturer of the Hotspot, Gamache Services LLC’s sole support obligation under this Agreement is as set forth in this Section 3.6. 3.7 Relocation. If Host intends to relocate its Residence, Host must provide a written Relocation Request to Gamache Services LLC at least thirty (30) days prior to the intended relocation date. Host will provide the new address and intended relocation date in the written Relocation Request. Gamache Services LLC will respond with an approval or denial within ten (10) business days after receiving the Relocation Request. If the Relocation Request is approved, Host is responsible for transporting the Hotspot safely and is responsible for any damage caused by transport. At Gamache Services LLC’s discretion, shipping and handling may be provided at Gamache Services LLC’s expense and risk. If the Relocation Request is denied, written notice will be provided to the Host and a prepaid shipping label to return the Hotspot will be provided to the Host at Gamache Services LLC’s expense and risk. 4. Maintenance, Repair, and Loss of Hotspot 4.1 Maintenance. Host will, at Host's own expense, maintain the Hotspot in good repair, appearance and condition (subject to normal and reasonable wear and tear). The Host will comply with all Gamache Services LLC’s operational requests that are necessary to keep the Hotspot in good operational state. 4.2 Repair. If the Hotspot is not in good repair, appearance and condition when it is returned to Gamache Services LLC, Gamache Services LLC may make such repairs or may cause such repairs to be made as are necessary to restore the Hotspot to its original appearance and condition (minus normal wear and tear). Gamache Services LLC will make the repairs within a reasonable time of taking possession of the Hotspot. Gamache Services LLC will not pay the Host the final Fees until the repairs have been completed. Gamache Services LLC will provide Host a copy of the invoice for such repairs. Upon receipt of such invoices, Host has the option to reimburse Gamache Services LLC for the repairs or have the repair costs deducted from the final Fees payment. If Host does not notify Gamache Services LLC within five (5) days from its receipt of the invoices, the parties agree that Gamache Services LLC will deduct such repair cost from the final Fees payment. 4.3 Loss. To the extent permitted by law, Host will be solely liable for the risk of loss, theft, damage or destruction of the Hotspot leased to Host. If the Hotspot is lost, Host will notify Gamache Services LLC within three (3) days of the loss and will pay Gamache Services LLC the Casualty Value of the Hotspot, at which point this Agreement shall terminate immediately. "Casualty Value" means the market value of the Hotspot at the end of the Term or when in relation to a Total Loss, the market value the Hotspot would have had at the end of the Term but for the Total Loss. The Casualty Value may be less than but will not be more than the original purchase price of the Hotspot. For example, if a Hotspot is damaged because it was position too close to a heat source, the current market value could be calculated by the current MSRP or the Manufacture's price to be paid to buy back the Hotspot, or if there is no market value for the Hotspot, Casualty Value will be calculated using the original purchase price of the Hotspot depreciating over 5 years. "Total Loss" means any loss or damage that is not repairable or that would cost more to repair than the market value of the Hotspot. 5. Fees In consideration for the Host’s hosting of the Hotspot under the terms of this Agreement, Gamache Services LLC will pay to Host a Token Share equal to twenty (20) percentage of the total HNT earned by the Hotspot AND paid by Helium to Gamache Services LLC for each Earning Period (“Fees”) starting on January 1, 2021. Gamache Services LLC will pay the Fees on a regular payment schedule. At the time of this Agreement, Gamache Services LLC intends to process the Fees on a calendar monthly basis starting January 1 of each year. Therefore, each calendar month would constitute an “Earning Period”. Gamache Services LLC reserves the right to update the payment schedule at any time by providing written notice to Host. Gamache Services LLC shall pay any Fees within seven (7) days from the end of each calendar month. Gamache Services LLC may pay Fees directly from Gamache Services LLC's Helium App (wallet) to the Host's Helium App (wallet). Notwithstanding anything to the contrary in this Agreement, Gamache Services LLC does not guarantee a minimum Token Share or Fees to the Host. “Helium Network Token” or “HNT” means a utility token or cryptocurrency provided by Helium. Hotspots may earn HNT for building and securing network infrastructure and transferring device data. “Token Share” means the allocated Hotspot HNT earnings Gamache Services LLC is sharing with the Host under this Agreement. 6. Warranties & Disclaimers 6.1 Warranties. Each party represents and warrants to the other that (i) if such party is a corporation or similar entity, it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action, and (ii) this Agreement is the legal, valid and binding obligation of it, enforceable against it in accordance with the Agreement's terms. 6.2 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 6.1 ABOVE, THE HOTSPOT IS PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 7. Intellectual Property Rights 7.1 Intellectual Property. Gamache Services LLC and its licensors own all right, title and interest (including all intellectual property rights) in and to the Hotspot. Nothing in this Agreement shall transfer any title to the foregoing to Host. As between the parties, Gamache Services LLC and its licensors owns and retains all right, title and interest in and to all the Hotspot, all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. To the extent that Host acquires any right, title or interest in or to any Hotspot, any deliverable, or any intellectual property rights therein, Host hereby assigns to Gamache Services LLC and its licensors all such right, title and interest. Except as provided in this Agreement, Host is not provided with any license or right to the Hotspot or the intellectual property rights therein, whether by implication, estoppel or otherwise. Host is not granted any right to use any Gamache Services LLC trademark, service mark, logo or trade name. 7.2 Feedback. Host and its authorized users may (but are not required to) provide Gamache Services LLC with suggestions, comments or other feedback regarding the Hotspot ("Feedback"). If Host do provide Gamache Services LLC with Feedback, then Gamache Services LLC may, and Host hereby grant Gamache Services LLC a license to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any product, technology, service, specification or other documentation. 8. Termination 8.1 Termination. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of breach. Gamache Services LLC may terminate this Agreement at any time for convenience by giving Host ten (10) days’ written notice or immediately if required by Helium. After the first three months of the Term, Host may terminate this Agreement at any time for convenience by giving Gamache Services LLC thirty (30) days’ written notice. If this Agreement is terminated within three months of the Effective Date, Gamache Services LLC reserves the right to withhold any Fees payable to the Host under this Agreement. If Gamache Services LLC terminates for breach by Host, Gamache Services LLC reserves the right to deduct its damages from any Fees paid or payable to Host under this Agreement. 8.2 Termination Effect. Except as set forth in this Agreement, in the event of termination of this Agreement, the rights and obligations hereunder will terminate immediately. Host will immediately return the Hotspot to Gamache Services LLC. Gamache Services LLC will provide Host with a return shipping label within fourteen (14) days from the termination notice provided to either party. If the Host fails to return the Hotspot to Gamache Services LLC at the end of the Term or any earlier termination of this Agreement, Host will pay to Gamache Services LLC the Casualty Value of the Hotspot plus 10% of the Casualty Value. Gamache Services LLC will pay final Fees payment to Host when the Casualty Value has been recouped by a direct payment from the Host or Gamache Services LLC has deducted the outstanding Fees from the final Fees payment. 8.3 Survival. In the event of any termination of this Agreement any provision hereof required to enforce the parties' rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein. 9. Confidential Information Each recipient of Confidential Information under this Agreement shall (a) use and copy the Confidential Information only for purposes of performing its obligations under this Agreement, (b) hold the Confidential Information in strict confidence, and (c) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the recipient protects and safeguards its own confidential information (but not using less than a reasonable degree of care). The recipient may disclose that portion of the Confidential Information which, in the judgment of its counsel, the recipient is required to disclose by law, by regulation, or pursuant to the order or requirement of a court, administrative agency or other governmental body with proper jurisdiction; provided that the recipient notifies the disclosing party a reasonable time prior to making such disclosure and cooperates with the disclosing party's efforts to seek a protective order or otherwise prevent or restrict such disclosure. "Confidential Information" means all information disclosed by one party to the other that is designated, at the time of disclosure, as confidential or that is of a nature that would reasonably be considered confidential, and does not include information that the recipient can show (i) is known publicly through no breach of this Agreement, (ii) was in its possession free of any obligation of confidence at the time of disclosure, (iii) was received from a third party free to disclose such information without restriction, or (iv) was independently developed without using or referring to the information of the disclosing party or breaching this Agreement. Gamache Services LLC's Confidential Information includes without limitation all information relating to Gamache Services LLC's products and services and the terms of this Agreement, and Host's Confidential Information includes Host’s name, email address and street address provided to Gamache Services LLC. 10. Indemnification Host will indemnify, defend and hold harmless Gamache Services LLC, its directors, officers, employees and agents from and against any and all third-party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) arising from or relating to Host’s failure to comply with the terms of this Agreement or applicable laws. 11. Limitation of Liability EXCEPT FOR A BREACH OF CONFIDENTIALITY OR HOST’S INFRINGEMENT OF GAMACHE SERVICES LLC OR ITS LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GAMACHE SERVICES LLC’S AGGREGATE LIABILITY UNDER THIS AGREEMENT TO HOST UNDER THIS AGREEMENT SHALL BE $0. 12. Force Majeure If Gamache Services LLC is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, pandemics, epidemics, governmental actions, acts of God, riots, wars, theft, acts of our suppliers, or other events beyond our reasonable control, then Gamache Services LLC is relieved from its performance of such obligations to the extent, and for the duration, that such performance is prevented by such events. 13. Modifications Gamache Services LLC may revise this Agreement from time to time to better reflect: (a) changes to the law, (b) new regulatory requirements, (c) improvements or enhancements made to its products and services. If an update affects Host’s lease of the Hotspot, Gamache Services LLC will notify Host prior to the update's effective date by sending an email to the email address provided by Host to Gamache Services LLC. This updated Agreement will be effective no less than thirty (30) days from the date of Gamache Services LLC’s notice. If Host does not agree to the updates, Host must terminate this Agreement before they become effective. By continuing to lease and use the Hotspots after the updates come into effect, Host agrees to be bound by the revised Agreement. 14. General Provisions Neither party may assign this Agreement without the other party’s prior written consent, except that Gamache Services LLC without such consent may make such an assignment in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of Gamache Services LLC’s voting securities or assets. Non-permitted assignments are void. Nothing in this Agreement shall be deemed to create or constitute a partnership, joint venture, franchise, agency, or contract of employment between Gamache Services LLC and Host. Any notice or consent under this Agreement will be in writing to the Host’s Residence on record or if to Gamache Services LLC, at 77 Van Ness Ave Ste. 101 - 1131, San Francisco, CA 94102. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose. In this Agreement, (a) “including” means “including without limitation” (and similar terms will be construed without limitation), (b) defined terms apply to both singular and plural forms of such terms and (c) headings are for convenience only and will not affect interpretation. Waivers must be signed by the waiving party and one waiver will not imply any future waiver. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of California and the United States without regard to conflicts of law’s provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any suit or proceeding arising out of or relating to this Agreement must be commenced in a federal court in the Northern District of California or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of such courts. This Agreement is non-exclusive; nothing herein prohibits Gamache Services LLC from creating or offering any similar product or service or entering into any similar agreement with any other party. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter.
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