Exhibit 4.1


 


 


 


 


 


NON-FIXED PRICE


 


 


 


SALES AND PURCHASE AGREEMENT


 


BETWEEN


 


Bitmain Technologies Limited


 


(“Bitmain”)


 


AND


 


Bit Digital USA, Inc. (“Purchaser”)


 






     


     


    

 


	1.	Definitions and Interpretations	1
	 	 	 
	2.	Sales of Product(s)	3
	 	 	 
	3.	Prices and Terms of Payment	4
	 	 	 
	4.	Product Discount	5
	 	 	 
	5.	Shipping of Product(s)	6
	 	 	 
	6.	Customs	8
	 	 	 
	7.	Warranty	8
	 	 	 
	8.	Representations and Warranties	11
	 	 	 
	9.	Indemnification and Limitation of Liability	12
	 	 	 
	10.	Distribution	13
	 	 	 
	11.	Intellectual Property Rights	13
	 	 	 
	12.	Confidentiality and Communications	14
	 	 	 
	13.	Term of this Agreement	14
	 	 	 
	14.	Notices	14
	 	 	 
	15.	Compliance with Laws and Regulations	15
	 	 	 
	16.	Force Majeure	17
	 	 	 
	17.	Entire Agreement and Amendment	17
	 	 	 
	18.	Assignment	17
	 	 	 
	19.	Severability	17
	 	 	 
	20.	Personal Data	17
	 	 	 
	21.	Conflict with the Terms and Conditions	18
	 	 	 
	22.	Governing Law and Dispute Resolution	18
	 	 	 
	23.	Waiver	18
	 	 	 
	24.	Counterparts and Electronic Signatures	18
	 	 	 
	25.	Further Assurance	18
	 	 	 
	26.	Third Party Rights	18
	 	 	 
	27.	Liquidated Damages Not Penalty	18



 




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This non-fixed price sales and
purchase agreement (this “Agreement”) is made on October 7th, 2021 by and between Bitmain Technologies Limited (“Bitmain”)
(Company number: 2024301), with its registered office at Unit A1 of Unit A, 11th Floor, Success Commercial Building, 245-251 Hennessy
Road, Hong Kong, and Bit Digital USA, Inc. (the “Purchaser”) (Registration Number: 3569153), with its principal place of business
at 33 Irving Place, New York, NY 10003 USA.


 


Bitmain and the Purchaser shall
hereinafter collectively be referred to as the “Parties”, and individually as a “Party”.


 


Whereas:


 


		1.	Purchaser fully understands the market risks, the price-setting
principles and the market fluctuations relating to the Products sold under this Agreement.



 


		2.	Purchaser has purchased the Products through the website of Bitmain
(i.e., https://shop.bitmain.com/, similarly hereinafter) for many times, and is familiar with the purchase order processes of Bitmain’s
website.



 


		3.	Based on the above consensus, the Purchaser is willing to purchase
and Bitmain is willing to supply cryptocurrency mining hardware and other equipment in accordance with the terms and conditions of this
Agreement.



 


The Parties hereto
agree as follows:


 


 1. Definitions and Interpretations




 


The following terms, as used
herein, have the following meanings:


 


“Affiliate” means,
with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person;
“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability
company, firm, trust, estate or other enterprise or entity (whether or not having separate legal personality); and “Control”
means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise, provided that such power or authority shall conclusively
be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes
entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the
board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.


 


“Applicable Law”
means any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal
force under any system of law, including, without limitation, local law, law of any other state or part thereof or international law,
and which creates or purports to create any requirement or rule that may affect, restrict, prohibit or expressly allow the terms of this
Agreement or any activity contemplated or carried out under this Agreement.


 






     


     


    

 


“Bank Account”
means the bank account information of Bitmain provided in Appendix A of this Agreement.


 


“Force Majeure”
means in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents
or hinders that Party from performing any obligation imposed upon that Party under this Agreement, including to the extent such event
or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist activities,
acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions, quarantine restrictions,
pandemics (including, but not limited to, COVID-19), epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions and
regulatory and administrative or similar action or delays to take actions of any governmental authority.


 


“Governmental
Entity” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality
of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental
authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator,
court or tribunal of competent jurisdiction.


 


“Intellectual Property
Rights” means any and all intellectual property rights, including, but not limited to, those concerning inventions, patents, utility
models, registered designs and models, engineering or production materials, drawings, trademarks, service marks, domain names, applications
for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or business sensitive information and/or technical
know-how, copyright, authorship, whether registered or not, and any neighbor rights.


 


“Order” means
the Purchaser’s request to Bitmain for certain Product(s) in accordance with this Agreement.


 


“Product(s)” means
the merchandise that Bitmain will provide to the Purchaser in accordance with this Agreement.


 


“Schedules” means
the Schedules that are attached to this Agreement and incorporated into this Agreement by reference and deemed to be a part thereof.


 


“Total Purchase Price”
means the aggregate amount payable by the Purchaser as set out in Appendix A of this Agreement.


 


“Warranty Period”
means the period of time that the Product(s) are covered by the warranty granted by Bitmain or its Affiliates in accordance with Clause
7 of this Agreement.


 


“Warranty Start Date”
means the date on which the Product(s) are delivered to the carrier.


 






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Interpretations:


 


	i)	Words importing the singular include the plural and vice versa where the context so requires.



 


	ii)	The headings in this Agreement are for convenience only and shall not be taken into consideration in the
interpretation or construction of this Agreement.



 


	iii)	References to Clauses and Appendix(es) are references to Clauses and Appendix(es) of this Agreement.



 


	iv)	Unless specifically stated otherwise, all references to days shall mean calendar days.



 


	v)	Any reference to a code, law, statute, statutory provision, statutory instrument, order, regulation or
other instrument of similar effect shall include any re-enactment or amendment thereof for the time being in force.



 


 2. Sales of Product(s)




 


Bitmain will provide the Product(s)
set forth in Appendix A (attached hereto as part of this Agreement) to the Purchaser in accordance with provisions of Clause 2, Clause
3, Clause 4, Clause 5 and Appendix A of this Agreement, and the Purchaser shall make payment in accordance with the terms specified in
this Agreement.


 


2.1. Both
Parties agree that the Product(s) shall be sold in accordance with the following steps:


 


		(i)	The Purchaser shall place Order through Bitmain’s website or through other methods accepted by Bitmain,
and such Order shall constitute an irrevocable offer to purchase specific Product(s) from Bitmain.



 


		(ii)	After receiving the Order, Bitmain will send an order receipt confirmation email to the Purchaser. The
Purchaser’s Order will be valid for a period of twenty-four (24) hours after its placement, and upon expiration of such period,
Bitmain will have the right to cancel the Order at its sole discretion if the Purchaser fails to pay the down payment in accordance with
Appendix A of this Agreement.



 


		(iii)	The Purchaser shall pay the Total Purchase Price in accordance with Appendix A of this Agreement.



 


		(iv)	Upon receipt of the Total Purchase Price, Bitmain will provide a payment receipt to the Purchaser.



 


		(v)	Bitmain will send a shipping confirmation to the Purchaser upon delivery of the Product(s) to the carrier,
and the Order shall be deemed accepted by Bitmain upon Bitmain’s issuance of the shipping confirmation.



 


2.2. Both
Parties acknowledge and agree that the order receipt confirmation and the payment receipt shall not constitute nor be construed as Bitmain’s
acceptance of the Purchaser’s Order, but mere acknowledgement of the receipt of the Order and the Total Purchase Price.


 


2.3. Both
Parties acknowledge and agree that in case of product unavailability, Bitmain shall have the right to cancel the Order after it has issued
the order receipt confirmation, the payment receipt or the shipping confirmation without any penalty or liability.


 






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2.4. The
Purchaser acknowledges and confirms that the Order is irrevocable and cannot be cancelled by the Purchaser, and that the Product(s) ordered
are neither returnable nor refundable. All sums paid by the Purchaser to Bitmain shall not be subject to any abatement, set-off, claim,
counterclaim, adjustment, reduction, or defense for any reason. Down payment and payment of Total Purchase Price are not refundable, save
as otherwise mutually agreed by the Parties.


 


 3. Prices and Terms of Payment




 


3.1 The
Total Purchase Price (inclusive of any tax payable) shall be paid in accordance with the payment schedule set forth in Appendix B of this
Agreement.


 


3.2 In
the event that the Purchaser fails to fully settle the respective percentage of the Total Purchase Price before the prescribed deadlines
and fails to make a written request to Bitmain no less than five (5) business days prior to the prescribed deadline and obtain Bitmain’s
written consent, Bitmain shall be entitled to request the Purchaser to pay a reasonable liquidated damage (not a penalty) of 20% of the
purchase price of such batch of Products within sixty (60) days. In the event that the Purchaser fails to pay the aforementioned liquidated
damage after the expiration of the time limit, Bitmain shall be entitled to terminate this Agreement. If there are any remaining balance
of the Purchaser after deducting the liquidated damage, such remaining balance shall be refunded to the Purchaser free of any interest.
If the Purchaser requests to continue to make payment after previous delay, while Bitmain has not terminated this Agreement, Bitmain shall
be entitled to reject the payment temporarily and request the Purchaser to pay the aforementioned liquidated damage. Afterwards, the Parties
shall negotiate the settlement separately. If the Purchaser fails to pay the down payment on a timely basis and Bitmain has arranged production
or procurement, Bitmain shall be entitled to request the Purchaser to be responsible for the loss related to such production or procurement
and the liability of the Purchaser shall be no more than 20% of the Total Purchase Price.


 


3.3 The
Total Purchase Price set forth in this Agreement is merely an estimate of the price and not the actual price. The actual price will be
determined fifteen (15) days before the current batch is shipped and with reference to the market circumstances, provided that the actual
price shall not be higher than the estimated price.


 


3.4 Upon
receipt of notification of the actual price provided by Bitmain, the Purchaser shall be entitled to three options:


 


		(i)	continue to perform the Order of the current batch of the Product(s) with the original
rated hashrate and pay the remaining amount at the actual price; or



 


		(ii)	request Bitmain to increase the rated hashrate in equivalent to the difference in
price. Under this circumstance, Bitmain shall have the right to negotiate with the Purchaser for the amount of the additional rated hashrate
based on its then inventory; or



 


		(iii)	partially or wholly cancel the Order of the current batch of Product(s), provided
that the Purchaser has received the notification of the actual price. Before Bitmain notifies the actual price, the Purchaser shall make
the payment timely as specified in 3.1.



 






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Under this circumstance, the
Purchaser shall not claim any refund from Bitmain. If the Purchaser has made payments and there is remaining balance, such remaining balance
may be credited to the balance of the Purchaser and its affiliates with Bitmain’s approval. The payments for the batches that the
Purchaser has cancelled cannot be used as down payments for any batch listed in this Agreement. However, the remaining balance shall be
refunded to the Purchaser free of any interest two years after the Order is cancelled.


 


Furthermore, the Purchaser shall
confirm in writing the result of its exercise of the options under this Clause within two (2) days after Bitmain provides the Purchaser
with the actual price, and if it is overdue and no agreement is reached between the Parties, the Purchaser shall be deemed to have voluntarily
and irrevocably waived its option under this Clause and the Parties shall continue to perform the Order of the current batch of Product(s)
with the original rated hashrate and the Purchaser shall pay the remaining amount at the actual price. If the Purchaser has exercised
its options, the payment of the current batch of Product(s) shall not be changed again.


 


3.5 The
Parties shall confirm the corresponding batch of the Product(s) of each payment before such payment is made by the Purchaser. This confirmation
shall be used to determine matters where different arrangements are applicable to different batches, such as the defaults of the Purchaser
and the product discount offered to the Purchaser.


 


3.6 Before
the delivery date, Bitmain shall be entitled to request the Purchaser to sign a Sales and Purchase Agreement by sending a written notice
to the Purchaser, and the Purchaser shall cooperate to sign such Sales and Purchase Agreement and pay the price of the remaining batch(s)
of Products to Bitmain as specified in this Agreement. If the Purchaser refuses to sign a Sales and Purchase Agreement as required by
Bitmain, Bitmain shall be entitled to request the Purchaser to perform its rights and obligations refer in this Agreement.


 


3.7 The
Parties understand and agree that the applicable prices of the Product(s) are inclusive of applicable bank transaction fee, but are exclusive
of any and all applicable import duties, taxes and governmental charges. The Purchaser shall pay or reimburse Bitmain for all taxes levied
on or assessed against the amounts payable hereunder. If any payment is subject to withholding, the Purchaser shall pay such additional
amounts as necessary, to ensure that Bitmain receives the full amount it would have received had payment not been subject to such withholding.


 


 4. Product Discount




 


Based on the sales results and
sales strategy, Bitmain is willing to offer the following discounts as set forth in clause 4.1:


 


4.1. With
respect of the signing of this Agreement, Bitmain offers the following discount to the Purchaser:


 


		4.1.1.	The Products under this Agreement consists of four (4) batches and the discount amount of each batch shall
be calculated separately.



 


		4.1.2.	Bitmain may provide different discounts to the Purchaser based on the actual amount
of the prepayment and the payment time.



 






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Discount Amount = Amount of
prepayment * 1% * Number of months prepaid. The amount of prepayment shall be calculated at the end of each month. The number of months
prepaid shall be calculated from the month of payment without counting the month of estimated delivery. If delivery is delayed, delayed
months shall not be counted in and the agreed delivery date shall prevail. For clarification, the payment date shall be the date as evidenced
in the remittance copy of such payment, and the discount term shall be calculated when the respective amounts under this Agreement have
been received by Bitmain in full and without further consideration of the remaining amount. Payment schedules may be further adjusted
in accordance with the actual situations.


 


		4.1.3.	If the Purchaser fails to make the payments on time, the discount applicable to
such batch shall be cancelled.



 


 4.2. No discount will be offered by Bitmain to the Purchaser.




 


 4.3. Bitmain shall offer [4%] discount to the Purchaser.




 


 5. Shipping of Product(s)




 


5.1. Bitmain
shall deliver the Products in accordance with the shipping schedule to the first carrier or the carrier designated by the Purchaser.


 


5.2. Subject
to the limitations stated in Appendix A, the terms of delivery of the Product(s) shall be CIP (carriage and insurance paid) to the US
according to Incoterms 2010) to the place of delivery designated by the Purchaser. Once the Product(s) have been delivered to the carrier,
Bitmain shall have fulfilled its obligation to supply the Product(s) to the Purchaser, and the title and risk of loss or damage to the
Product(s) shall pass to the Purchaser.


 


5.3. In
the event of any discrepancy between this Agreement and Bitmain’s cargo insurance policy regarding the insurance coverage, the then
effective Bitmain cargo insurance policy shall prevail, and Bitmain shall be required to provide the then effective insurance coverage
to the Purchaser.


 


5.4. If
Bitmain fails to deliver the Products after thirty (30) days after the prescribed deadline, the Purchaser shall be entitled to cancel
the Order of such batch of Products and request Bitmain to refund the price of such undelivered batch of Products together with an interest
at 0.0333% per day for the period from the next day of each payment of the price of such batch of Products to the date immediately prior
to the request for refund. In the event that the Purchaser does not cancel the Order of the undelivered batch of Products and requests
Bitmain to perform its delivery obligation, Bitmain shall continue to perform its delivery obligation and compensate the Purchaser in
accordance with Clause 5.5 of this Agreement.


 


5.5. If
Bitmain postpones the shipping schedule of the Products and the Purchaser does not cancel the Order, Bitmain shall make a compensation
to the Purchaser on daily basis, the amount of which shall equal to 0.0333% of the price of such undelivered batch of Products, which
compensation shall be made in the form of delivery of more rated hashrate. Amount less than one unit of Product shall be credited to the
balance of the Purchaser in the user system on Bitmain’s official website, which shall be viewable by the Purchaser.


 






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5.6. There
are four (4) batches of Products under this Agreement and each batch shall constitute independent legal obligations of and shall be performed
separately by the Parties. The delay of a particular batch shall not constitute waiver of the payment obligation of the Purchaser in respect
of other batches. The Purchaser shall not be entitled to terminate this Agreement solely on the ground of delay of delivery of a single
batch of Products.


 


5.7. The
purchaser shall choose the following shipping method:


 


■
Shipping by Bitmain via Fedex/DHL/UPS/other logistics company;☐
Self-pick


 


Note: Logistics
costs shall be borne by the Purchaser. Bitmain may collect payments on behalf of the services providers and issue services invoices if
the Purchaser requests Bitmain to send the Products.


 


5.8. Bitmain
shall not be responsible for any delivery delay caused by the Purchaser or any third party, including but not limited to the carrier,
the customs, and the import brokers, nor shall it be liable for damages, whether direct, indirect, incidental, consequential, or otherwise,
for any failure, delay or error in delivery of any Product(s) for any reason whatsoever.


 


5.9. Bitmain
shall not be responsible and the Purchaser shall be fully and exclusively responsible for any loss of Product(s), personal injury, property
damage, other damage or liability caused by the Product(s) or the transportation of the Product(s) either to the Purchaser or any third
party, or theft of the Product(s) during transportation from Bitmain to the Purchaser.


 


5.10. Bitmain
has the right to discontinue the sale of the Product(s) and to make changes to its Product(s) at any time, without prior approval from
or notice to the Purchaser.


 


5.11. If
the Product(s) is rejected and/or returned back to Bitmain because of any reason and regardless of the cause of such delivery failure,
the Purchaser shall be solely and exclusively liable for and shall defend, fully indemnify and hold harmless Bitmain against any and all
related expenses, fees, charges and costs incurred, arising out of or incidental to such rejection and/or return (the “Return Expense”).
Furthermore, if the Purchaser would like to ask for Bitmain’s assistance in redelivering such Product(s) or assist in any other
manner, and if Bitmain at its sole discretion decides to provide this assistance, then in addition to the Return Expense, the Purchaser
shall also pay Bitmain an administrative fee in accordance with Bitmain’s then applicable internal policy.


 


5.12. If
the Purchaser fails to provide Bitmain with the delivery place or the delivery place provided by the Purchaser is a false address or does
not exist, or the Purchaser reject to accept the Products, any related costs occurred (including storage costs, warehousing charge and
labor costs) shall be borne by the Purchaser. Bitmain may issue the Purchaser a notice of self-pick-up and ask the Purchaser to pick up
the Products itself. Bitmain shall be deemed to have completed the delivery obligation under this Agreement after two (2) business days
following the issue of the self-pick-up notice. After thirty (30) days of the self-pick-up notice, the Purchaser shall be entitled to
deal with the Products in any manner as it deems appropriate.


 






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5.13. The
Purchaser shall inspect the Products within three (3) days (the “Acceptance Time”) after receiving the Products (the date
of signature on the carrier’s delivery voucher shall be the date of receipt), if the Purchaser does not raise any written objection
within the agreed Acceptance Time, the Products delivered by Bitmain shall be deemed to be in full compliance with the provisions of this
Agreement.


 


 6. Customs




 


6.1. Bitmain
shall obtain in due time and maintain throughout the term of this Agreement (if applicable), any and all approvals, permits, authorizations,
licenses and clearances for the export of the Product(s) that are required to be obtained by Bitmain or the carrier under Applicable Laws.


 


6.2. The
Purchaser shall obtain in due time and maintain throughout the term of this Agreement (if applicable), any and all approvals, permits,
authorizations, licenses and clearances required for the import of the Product(s) to the country of delivery as indicated in the shipping
information, that are required to be obtained by the Purchaser or the carrier under Applicable Laws, and shall be responsible for any
and all additional fees, expenses and charges in relation to the import of the Product(s).


 


6.3. To
the extent permitted by laws, except for the Warranty as set forth in Section 7 of this Agreement, Bitmain provides no other warranty,
whether explicit or implied, in any form, including, but not limited to, the warranty of the marketability, satisfaction of the quality,
suitability for the specific purpose, not infringing third party’s right, etc. In addition, Bitmain shall not be responsible for
any direct, specific, incidental, accidental or indirect loss arising from the use of the Product(s), including but not limited to the
loss of commercial profits.


 


6.4. Bitmain
shall not be liable for any loss caused by:


 


		(i)	failure of the Purchaser to use the Product(s) in accordance with the manual, specifications,
operation descriptions or operation conditions provided by Bitmain in writing;



 


		(ii)	the non-operation of the Product(s) during the replacement/maintenance period or
caused by other reasons;



 


		(iii)	confiscation, seizure, search or other actions taken by government agencies such
as customs.



 


 7. Warranty




 


7.1.1 The
Warranty Period shall start on the Warranty Start Date and end on the 365th day after the Warranty Start Date. During the Warranty
Period, the Purchaser’s sole and exclusive remedy, and Bitmain’s entire liability, will be to repair or replace, at Bitmain’s
option, the defective part/component of the Product(s) or the defective Product(s) at no charge to the Purchaser. If the Purchaser requires
Bitmain to provide any warranty services, the Purchaser shall create a maintenance order on Bitmain’s website during the Warranty
Period (the time of creation of the maintenance order shall be determined by the display time of such order on Bitmain’s website)
and send the Product to the place designated by Bitmain within the time limit required by Bitmain. Otherwise, Bitmain shall be entitled
to refuse to provide the warranty service.


 






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7.1.2 The
Parties acknowledge and agree that the warranty provided by Bitmain as stated in the preceding paragraph does not apply to the following:


 


		(i)	normal wear and tear;



 


		(ii)	damage resulting from accident, abuse, misuse, neglect, improper handling or improper installation;



 


		(iii)	damage or loss of the Product(s) caused by undue physical or electrical stress, including but not limited
to moisture, corrosive environments, high voltage surges, extreme temperatures, shipping, or abnormal working conditions;



 


		(iv)	damage or loss of the Product(s) caused by acts of nature including, but not limited to, floods, storms,
fires, pandemics and earthquakes;



 


		(v)	damage caused by operator error, or non-compliance with instructions as set out in accompanying documentation;



 


		(vi)	alterations by persons other than Bitmain, associated partners or authorized service facilities;



 


		(vii)	Product(s), on which the original software has been replaced or modified by persons other than Bitmain,
associated partners or authorized service facilities;



 


		(viii)	counterfeit Products;



 


		(ix)	damage or loss of data due to interoperability with current and/or future versions of operating system,
software and/or hardware;



 


		(x)	damage or loss of data caused by improper usage and behavior which is not recommended and/or permitted
in the Product documentation;



 


		(xi)	failure of the Product(s) caused by usage of Products not supplied by Bitmain; and



 


		(xii)	hash boards or chips are burnt.



 


In case the warranty
is voided, Bitmain may, at its sole discretion, provide repair service to the Purchaser, and the Purchaser shall bear all related expenses
and costs.


 


7.2 Title.
Bitmain owns, and at the Closing shall have, good, valid and marketable title to the Products and full right to transfer title to the
Products free and clear of all liens, mortgages, charges, liabilities, claims, security interests or Encumbrances of every type whatsoever,
except statutory liens and liabilities created by Purchaser.


 






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7.3 Compliance
with Laws. To Bitmain’s knowledge the operations and activities of Bitmain concerning the Products have previously and continue
to comply in all respects with all applicable Federal, state, local or foreign laws, statutes, codes, ordinances, rules, regulations,
permits, judgments, orders, writs, awards, decrees or injunctions (collectively, the “Laws”), as in effect on or before the
date of this Agreement. Neither the ownership nor use of the Products conflicts with the rights of any other person, firm or corporation
or violates, or with or without the giving of notice or the passage of time, or both, will violate, conflict with or result in a default,
right to accelerate or loss of rights under any encumbrance, or Laws to which Bitmain is a party or by which it or the Products may be
bound or affected. Bitmain has not received any written notice of communication from any third party asserting a failure to comply with
any Laws, nor has Bitmain received any written notice that any authority or third party intends to seek enforcement against it to compel
compliance with any such Laws.


 


7.4 Consents
and Regulatory Approvals.


 


		(i)	No material consent, approval, waiver, license, permit, order or authorization (“Consent”)
of, or registration, declaration or filing with, or Governmental Authorization from, any Governmental Entity is required to be obtained
or made by Bitmain in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions
contemplated by this Agreement.



 


		(ii)	The execution of this Agreement and the consummation of the transactions contemplated by this Agreement
will not result in the breach of any term or provision of, or constitute an event of default under, any material indenture, mortgage,
deed of trust or other material contract, agreement or instrument to which Bitmain is a party or to which any of its properties or operations
are subject.



 


7.5 Notwithstanding
anything to the contrary herein, the Purchaser acknowledges and agrees that the Product(s) provided by Bitmain do not guarantee any cryptocurrency
mining time and, Bitmain shall not be liable for any cryptocurrency mining time loss or cryptocurrency mining revenue loss that are caused
by downtime of any part/component of the Product(s). Bitmain does not warrant that the Product(s) will meet the Purchaser’s requirements
or the Product(s) will be uninterrupted or error free. Except as provided in Clause 7.1 of this Agreement, Bitmain makes no warranties
to the Purchaser with respect to the Product(s), and no warranties of any kind, whether written, oral, express, implied or statutory,
including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing or usage
in trade shall apply.


 


7.6 In
the event of any ambiguity or discrepancy between this Clause 7 of this Agreement and Bitmain’s After-sales Service Policy from
time to time, it is intended that the After-sales Service Policy shall prevail and the Parties shall comply with and give effect to the
After-sales Service Policy. Please refer to the website of Bitmain for detailed terms of warranty and after-sales maintenance. Bitmain
has no obligation to notify the Purchaser of the update or modification of such terms.


 


7.7 During
the warranty period, if the hardware product needs to be repaired or replaced, the Purchaser shall bear the logistics costs of shipping
the Product to the address designated by Bitmain, and Bitmain shall bear the logistics costs of shipping back the repaired or replaced
Product to the address designated by the Purchaser. The Purchaser shall bear all and any additional costs incurred due to incorrect or
incomplete delivery information provided by the Purchaser and all and any risks of loss or damage to the Product, or the parts or components
of the Products during the transportation period (including the transportation period when the product is sent to Bitmain and returned
by Bitmain to the Purchaser).


 






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 8. Representations and Warranties




 


The Purchaser
makes the following representations and warranties to Bitmain:


 


 8.1. It has the full power and authority to own its assets and carry on its businesses.




 


8.2. The
obligations expressed to be assumed by it under this Agreement are legal, valid, binding and enforceable obligations.


 


8.3. It
has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery
of, this Agreement and the transactions contemplated by this Agreement.


 


8.4. The
entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with:


 


		(i)	any Applicable Law;



 


		(ii)	its constitutional documents; or



 


		(iii)	any agreement or instrument binding upon it or any of its assets.



 


8.5. All
authorizations required or desirable:


 


		(i)	to enable it lawfully to enter into, exercise its rights under and comply with its obligations under this
Agreement;



 


		(ii)	to ensure that those obligations are legal, valid, binding and enforceable; and



 


		(iii)	to make this Agreement admissible in evidence in its jurisdiction of incorporation, have been or
will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.



 


8.6. It
is not aware of any circumstances which are likely to lead to:


 


		(i)	any authorization obtained or effected not remaining in full force and effect;



 


		(ii)	any authorization not being obtained, renewed or effected when required or desirable; or



 


		(iii)	any authorization being subject to a condition or requirement which it does not reasonably expect to satisfy
or the compliance with which has or could reasonably be expected to have a material adverse effect.



 






    -11-


     


    

 


8.7. (a) It is not the
target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S.
Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or Singapore
(“Sanctions”), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained
by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or
controlled by one or more SDNs or other Persons included on any other Sanctions list, or located, organized or resident in a country
or territory that is the target of Sanctions, and (b) the purchase of the Product(s) will not violate any Sanctions or import and
export control related laws and regulations.


 


8.8. All
information supplied by the Purchaser is and shall be true and correct, and the information does not contain and will not contain any
statement that is false or misleading.


 


 9. Indemnification and Limitation of Liability




 


9.1. The
Purchaser shall, during the term of this Agreement and at any time thereafter, indemnify and save Bitmain and/or its Affiliates harmless
from and against any and all damages, suits, claims, judgments, liabilities, losses, fees, costs or expenses of any kind, including legal
fees, whatsoever arising out of or incidental to the Products pursuant to this Agreement.


 


9.2. Notwithstanding
anything to the contrary herein, Bitmain and its Affiliates shall under no circumstances, be liable to the Purchaser for any consequential
loss, or loss of goodwill, business, anticipated profits, revenue, contract, or business opportunity arising out of or in connection with
this Agreement, and the Purchaser hereby waives any claim it may at any time have against Bitmain and its Affiliates in respect of any
such damages. The foregoing limitation of liability shall apply whether in an action at law, including but not limited to contract, strict
liability, negligence or an action in equity, but not for willful misconduct, fraud or criminal conduct.


 


9.3. Bitmain
and its Affiliates’ cumulative aggregate liability pursuant to this Agreement, whether arising from tort, breach of contract or
any other cause of action shall be limited to and not exceed the amount of one hundred percent (100%) of the payment actually received
by Bitmain from the Purchaser for the Product(s).


 


9.4. The
Product(s) are not designed, manufactured or intended for use in hazardous or critical environments or in activities requiring emergency
or fail-safe operation, such as the operation of nuclear facilities, aircraft navigation or communication systems or in any other applications
or activities in which failure of the Product(s) may pose the risk of environmental harm or physical injury or death to humans. Bitmain
specifically disclaims any express or implied warranty of fitness for any of the above described application and any such use shall be
at the Purchaser’s sole risk.


 


9.5. The
above limitations and exclusions shall apply (1) notwithstanding failure of essential purpose of any exclusive or limited remedy; and
(2) whether or not Bitmain has been advised of the possibility of such damages. This Clause allocates the risks under this Agreement and
Bitmain’s pricing reflects this allocation of risk and the above limitations.


 






    -12-


     


    

 


 10. Distribution




 


10.1. This
Agreement does not constitute a distributor agreement between Bitmain and the Purchaser. Therefore, the Purchaser is not an authorized
distributor of Bitmain.


 


10.2. The
Purchaser shall in no event claim or imply to a third party that it is an authorized distributor of Bitmain or Bitmain (Antminer) or any
similar terms, or perform any act that will cause it to be construed as an authorized distributor of Bitmain or Bitmain (Antminer). As
between the Purchaser and Bitmain, the Purchaser shall be exclusively and fully responsible for complying with the Applicable Laws regarding
repackaging the Product(s) for the Purchaser’s redistribution needs, and shall be solely liable for any and all liabilities or costs
directly incurred or incidental to such redistribution.


 


 11. Intellectual Property Rights




 


11.1. The
Parties agree that the Intellectual Property Rights in any way contained in the Product(s), made, conceived or developed by Bitmain and/or
its Affiliates for the Product(s) under this Agreement and/or, achieved, derived from, related to, connected with the provision of the
Product(s) by Bitmain and/or acquired by Bitmain from any other person in performance of this Agreement shall be the exclusive property
of Bitmain and/or its Affiliates.


 


11.2. Notwithstanding
anything to the contrary herein, all Intellectual Property Rights in the Product(s) shall remain the exclusive property of Bitmain and/or
its licensors. Except for licenses explicitly identified in Bitmain’s Shipping Confirmation or in this Clause 11.2, no rights or
licenses are expressly granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of Bitmain
and/or its Affiliates or any Intellectual Property residing in the Product(s) provided by Bitmain to the Purchaser, including in any documentation
or any data furnished by Bitmain. Bitmain grants the Purchaser a non-exclusive, non-transferrable, royalty-free and irrevocable license
of Bitmain and/or its Affiliates’ Intellectual Property Rights to solely use the Product(s) delivered by Bitmain to the Purchaser
for their ordinary function, and subject to the Clauses set forth herein. The Purchaser shall in no event violate the Intellectual Property
Rights of Bitmain and/or its licensors.


 


11.3. The
Purchaser shall not illegally use or infringe the Intellectual Property Rights of the Product in any other measure. Otherwise, Bitmain
shall have the right to request the Purchaser to take immediate remedial measures and assume full responsibilities, including but not
limited to ceasing the infringement immediately, eliminating the impact, and compensating Bitmain and/or its suppliers for all losses
arising out of the infringement, etc.


 


11.4. The
Purchaser shall not use any technical means to disassemble, mapping or analyze the Products of Bitmain that the Purchaser obtains publicly
to retrieve relevant technical information of the Products and use it for commercial purposes. Otherwise, The Purchaser shall be liable
for losses caused to Bitmain in accordance with Clause 11.3.


 


11.5. If
applicable, payment by the Purchaser of non-recurring charges to Bitmain for any special designs, or engineering or production materials
required for Bitmain’s performance of Orders for customized Product(s), shall not be construed as payment for the assignment from
Bitmain to the Purchaser of title to the design or special materials. Bitmain shall be the sole owner of such special designs, engineering
or production materials.


 






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 12. Confidentiality and Communications




 


12.1. All
information concerning this Agreement and matters pertaining to or derived from the provision of Product(s) pursuant to this Agreement
between the Parties, whether in oral or written form, or in the form of drawings, computer programs or other, as well as all data derived
therefrom (“Confidential Information”), shall be deemed to be confidential and, as such, may not be divulged to any unauthorized
person. The Purchaser undertakes and agrees to take all reasonable and practicable steps to ensure and protect the confidentiality of
the Confidential Information which cannot be passed, sold, traded, published or disclosed to any unauthorized person.


 


12.2. Except
as required by applicable federal, state, local or foreign law or regulation, the term “Confidential Information” as used
in this Agreement shall not include information that:


 


		12.2.1	at the time of disclosure is, or thereafter becomes, generally available to and known by the public other
than as a result of, directly or indirectly, any violation of this Agreement by the recipient or any of its representatives;



 


		12.2.2	at the time of disclosure is, or thereafter becomes, available to the recipient on a non-confidential
basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information
to the recipient by a legal, fiduciary, or contractual obligation to the disclosing Party;



 


		12.2.3	was known by or in the possession of the recipient or its representatives, as established by documentary
evidence, before being disclosed by or on behalf of the disclosing Party under this Agreement; or



 


		12.2.4	was or is independently developed by the recipient, as established by documentary evidence, without reference
to or use of, in whole or in part, any of the disclosing Party’s Confidential Information.



 


 13. Term of this Agreement




 


13.1. The
Parties agree that, unless this Agreement specifies otherwise, no Party shall terminate this Agreement in advance.


 


13.2. This
Agreement shall be effective upon signing of this Agreement and shall remain effective up to and until the delivery of the last batch
of Products.


 


 14. Notices




 


14.1. All
notices, requirements, requests, claims, and other communications in relation to this Agreement shall be in writing, and shall be given
or made by delivery in person, by an internationally recognized overnight courier
service, by facsimile or registered or certified mail (postage prepaid, return receipt requested) or electronic mail to the respective
Parties at the addresses specified below or at such other address for a Party as may be specified in a notice given in accordance with
this Section 14.1.


 






    -14-


     


    

 


 14.2. The following are the initial address of each Party:




 


If to the
Purchaser:


 


Address: 33
Irving Place, New York, NY 10003 USA


 


Attn: Bryan
Bullett; Erke Huang


 


Phone: +1
917-288-1310; +86 189 2521 4533


 


Email:
bryan@gmail.com; erkeh@bit-digital.com


 


If to Bitmain:


 


Address: Building
#1, Courtyard #9, Fenghao East Road, Haidian District, Beijing, China


 


Attn: Qingqing Miao


 


Phone: +86 15842495691


 


Email: qingqing.miao@bitmain.com


 


14.3. All
such notices and other communications shall be deemed effective in the following situations:


 


		(i)	if sent by delivery in person, on the same day of the delivery;



 


		(ii)	if sent by registered or certified mail or overnight courier service, on the same day the written confirmation
of delivery is sent; and



 


		(iii)	if sent by electronic mail, at the entrance of the related electronic mail into the recipient’s
electronic mail server.



 


 15. Compliance with Laws and Regulations




 


15.1. The
Purchaser undertakes that it will fully comply with all Applicable Laws in relation to export and import controls and sanctions and shall
not take any action that would cause Bitmain or any of its Affiliates to be in violation of any export and import control laws or sanctions.
The Purchaser shall also be fully and exclusively liable for and shall defend, fully indemnify and hold harmless Bitmain and/or its Affiliates
from and against any and all claims, demands, actions, costs or proceedings brought or instituted against Bitmain and/or its Affiliates
arising out of or in connection with any breach by the Purchaser or the carrier of any Applicable Laws in relation to export and import
control or sanction.


 






    -15-


     


    

 


15.2. The
Purchaser acknowledges and agrees that the Product(s) in this Agreement are subject to the export control laws and regulations of all
related countries, including but not limited to the Export Administration Regulations (“EAR”) of the United States. Without
limiting the foregoing, the Purchaser shall not, without receiving the proper licenses or license exceptions from all related governmental
authorities, including but not limited to the U.S. Bureau of Industry and Security, distribute, re-distribute, export, re-export, or transfer
any Product(s) subject to this Agreement either directly or indirectly, to any national of any country identified in Country Groups D:1
or E:1 as defined in the EARs. In addition, the Product(s) under this Agreement may not be exported, re-exported, or transferred to (a)
any person or entity for military purposes; (b) any person or entity listed on the “Entity List”, “Denied Persons List”
or the SDN List as such lists are maintained by the U.S. Government, or (c) an end-user engaged in activities related to weapons of mass
destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production,
or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support
of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. The Purchaser further agrees
that it will not do any of the foregoing in violation of any restriction, law, or regulation of the European Union or an individual EU
member state that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau of Industry and Security.


 


15.3. The
Purchaser undertakes that it will not take any action under this Agreement or use the Product(s) in a way that will be a breach of any
anti-money laundering laws, any anti-corruption laws, and/or any counter-terrorist financing laws.


 


15.4. The
Purchaser warrants that the Product(s) have been purchased with funds that are from legitimate sources and such funds do not constitute
proceeds of criminal conduct, or realizable property, or proceeds of terrorism financing or property of terrorist, within the meaning
given in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) and the Terrorism (Suppression
of Financing) Act (Chapter 325), respectively. If Bitmain receives, including but not limited to investigation, evidence collection, restriction
and other measures, from any competent organizations or institutions, the Purchaser shall immediately cooperate with Bitmain and such
competent organizations or institutions in the investigation process, and Bitmain may request the Purchaser to provide necessary security
if so required. If any competent organizations or institutions request Bitmain to seize or freeze the Purchaser’s Products and funds
(or take any other measures), Bitmain shall be obliged to cooperate with such competent organizations or institutions, and shall not be
deemed as breach of this Agreement. The Purchaser understands that if any Person resident in Singapore knows or suspects or has reasonable
grounds for knowing or suspecting that another Person is engaged in criminal conduct or is involved with terrorism or terrorist property
and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other
trade, profession, business or employment, the Person will be required to report such knowledge or suspicion to the Suspicious Transaction
Reporting Office, Commercial Affairs Department of the Singapore Police Force. The Purchaser acknowledges that such a report shall not
be treated as breach of confidence or violation of any restriction upon the disclosure of information imposed by any Applicable Law, contractually
or otherwise.


 






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 16. Force Majeure




 


16.1. To
the extent that a Party is fully or partially delayed, prevented or hindered by an event of Force Majeure from performing any obligation
under this Agreement (other than an obligation to make payment), subject to the exercise of reasonable diligence by the affected Party,
the failure to perform shall be excused by the occurrence of such event of Force Majeure. A Party claiming that its performance is excused
by an event of Force Majeure shall, promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature,
date of inception and expected duration of such event of Force Majeure and the extent to which the Party expects that the event will delay,
prevent or hinder the Party from performing its obligations under this Agreement. The notifying Party shall thereafter use its best effort
to eliminate such event of Force Majeure and mitigate its effects.


 


16.2. The
affected Party shall use reasonable diligence to remove the event of Force Majeure, and shall keep the other Party informed of all significant
developments.


 


16.3. Except
in the case of an event of Force Majeure, neither party may terminate this Agreement prior to its expiry date.


 


16.4. The
Parties agree that, except for the prohibition of production and sale of Super Computing Server by the local government for Bitmain, other
related government actions shall not be deemed as Force Majeure.


 


 17. Entire Agreement and Amendment




 


This Agreement, constitutes
the entire agreement of the Parties hereto and can only be amended with the written consent of both Parties or otherwise as mutually agreed
by both Parties.


 


 18. Assignment




 


18.1. Bitmain
may freely assign or transfer any of its rights, benefits or obligations under this Agreement in whole or in part to its Affiliates or
to any third party. The Purchaser may not assign or transfer any of its rights, benefits or obligations under this Agreement in whole
or in part without Bitmain’s prior written consent.


 


18.2. This
Agreement shall be binding upon and enure to the benefit of each Party to this Agreement and its successors in title and permitted assigns.


 


 19. Severability




 


To the extent possible,
if any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part by a court, the provision shall
apply with whatever deletion or modification is necessary so that such provision is legal, valid and enforceable and gives effect to the
commercial intention of the Parties. The remaining provisions of this Agreement shall not be affected and shall remain in full force and
effect.


 


 20. Personal Data




 


Depending
on the nature of the Purchaser’s interaction with Bitmain, some examples of personal data which Bitmain may collect from the Purchaser
include the Purchaser’s name and identification information, contact information such as the Purchaser’s address, email address
and telephone number, nationality, gender, date of birth, and financial information such as credit card numbers, debit card numbers and
bank account information.


 






    -17-


     


    

 


Bitmain generally
does not collect the Purchaser’s personal data unless (a) it is provided to Bitmain voluntarily by the Purchaser directly or via
a third party who has been duly authorized by the Purchaser to disclose the Purchaser’s personal data to Bitmain (the Purchaser’s
“authorized representative”) after (i) the Purchaser (or the Purchaser’s authorized representative) has been notified
of the purposes for which the data is collected, and (ii) the Purchaser (or the Purchaser’s authorized representative) has provided
written consent to the collection and usage of the Purchaser’s personal data for those purposes, or (b) collection and use of personal
data without consent is permitted or required by related laws. Bitmain shall seek the Purchaser’s consent before collecting any
additional personal data and before using the Purchaser’s personal data for a purpose which has not been notified to the Purchaser
(except where permitted or authorized by law).


 


 21. Conflict with the Terms and Conditions




 


In the event of any ambiguity
or discrepancy between the Clauses of this Agreement and the Terms and Conditions from time to time, it is intended that the Clauses of
this Agreement shall prevail and the Parties shall comply with and give effect to this Agreement.


 


 22. Governing Law and Dispute Resolution




 


22.1. This
Agreement shall be solely governed by and construed in accordance with the laws of Hong Kong.


 


22.2. Any
dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation,
performance, breach or termination hereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement
shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Center under the UNCITRAL
Arbitration Rules in force when the notice of arbitration is submitted. The decision and awards of the arbitration shall be final and
binding upon the parties hereto.


 


 23. Waiver




 


Failure by either
Party to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute
a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving Party
to thereafter enforce each and every such provision or option.


 


 24. Counterparts and Electronic Signatures




 


This Agreement may
be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when
taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures
of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute
duplicate originals.


 


 25. Further Assurance




 


Each Party undertakes
to the other Party to execute or procure to be executed all such documents and to do or procure to be done all such other acts and things
as may be reasonable and necessary to give all Parties the full benefit of this Agreement.


 


 26. Third Party Rights




 


A person who is not
a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong)
to enforce or to enjoy the benefit of any term of this Agreement.


 


 27. Liquidated Damages Not Penalty




 


It is expressly agreed
that any liquidated damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith
for such specific liquidated damages and having agreed that the amount of such liquidated damages is reasonable in light of the anticipated
harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or non-feasibility of obtaining any
adequate remedy, are estopped from contesting the validity or enforceability of such liquidated damages.


 


(The rest part of the page
is intentionally left in blank)


 






    -18-


     


    

 


Signed for and on behalf of
Bitmain


 


	 	Bitmain Technologies Limited
	 	 	 
	 	Signature: 	/s/ Irene Gao
	 	Title:	Antminer Sales Director of NCSA Region, Bitmain


 


Signed for and on behalf of
the Purchaser


 


	 	Bit Digital USA, Inc.
	 	 	 
	 	Signature: 	/s/ Bryan Bullett
	 	Title:	Chief Executive Officer



 






    -19-