Transition Services Agreement between Bit Digital, Inc. and WhiteFiber, Inc. (2025)

EX-10.2 9 ea024838201ex10-2_white.htm FORM OF TRANSITION SERVICES AGREEMENT WITH BIT DIGITAL, INC

Exhibit 10.2

FORM OF

 

TRANSITION SERVICES AGREEMENT

BETWEEN

BIT DIGITAL, INC.,

AND

WHITEFIBER, INC.

Dated _____, 2025

 

 

TABLE OF CONTENTS

 

ARTICLE I		DEFINITIONS	1
	Section 1.1	Definitions	1
ARTICLE II		PERFORMANCE AND SERVICES	5
	Section 2.1	General	5
	Section 2.2	Additional Services	5
	Section 2.3	Service Requests	6
	Section 2.4	Access	6
	Section 2.5	Local Agreements	7
	Section 2.6	System Shutdown	7
ARTICLE III		SERVICE QUALITY; INDEPENDENT CONTRACTOR	7
	Section 3.1	Service Quality	7
	Section 3.2	Independent Contractor; Assets; Subcontractors	8
	Section 3.3	Uses of Services	9
	Section 3.4	Modification of Services.	9
	Section 3.5	Transition of Responsibilities	9
	Section 3.6	Substantive Business Decisions Prohibited	9
	Section 3.7	Disclaimer of Warranties	9
ARTICLE IV		FEES; PAYMENT	10
	Section 4.1	Fees	10
	Section 4.2	Taxes	10
	Section 4.3	Invoices and Payment	10
	Section 4.4	Payment Disputes	10
ARTICLE V		CONFIDENTIALITY; SECURITY.	11
	Section 5.1	Bit Digital and WhiteFiber Obligations	11
	Section 5.2	No Release; Return or Destruction	11
	Section 5.3	Protective Arrangements	12
	Section 5.4	Security	12
ARTICLE VI		TERMINATION	13
	Section 6.1	Term	13
	Section 6.2	Partial Termination	14
	Section 6.3	Termination of Entire Agreement	14
	Section 6.4	Procedures on Termination	15
	Section 6.5	Effect of Termination	15
	Section 6.6	Exit	15
	Section 6.7	Responsibility for Salary and Other Benefits on Exit	15
	Section 6.8	Indemnities on Exit	15
	Section 6.9	Procedure and Indemnity for Claims by Non-Transferring Employees	16

 

 

ARTICLE VII		INDEMNIFICATION AND DISPUTE RESOLUTION	16
	Section 7.1	Limitation of Liability	16
	Section 7.2	Indemnification by WhiteFiber	17
	Section 7.3	Indemnification by Bit Digital	17
	Section 7.4	Exclusive Remedy	18
	Section 7.5	Risk Allocation	18
	Section 7.6	Indemnification Procedures	18
	Section 7.7	Project Managers	19
	Section 7.8	Mediation	19
ARTICLE VIII		MISCELLANEOUS	19
	Section 8.1	Amendments and Waivers	19
	Section 8.2	Notices	20
	Section 8.3	Entire Agreement	20
	Section 8.4	No Third-Party Beneficiaries	20
	Section 8.5	Governing Law	21
	Section 8.6	Assignability	21
	Section 8.7	Severability	21
	Section 8.8	Counterparts	21
	Section 8.9	Rules of Construction	21
	Section 8.10	Specific Performance	22
	Section 8.11	Precedence of Schedules	22
	Section 8.12	Force Majeure	22

 

 

TRANSITION SERVICES AGREEMENT

 

 THIS TRANSITION SERVICES AGREEMENT dated _____, 2025 (this “Agreement”), is between Bit Digital, Inc., a Cayman Islands exempted company (“Bit Digital”) and WhiteFiber Inc., a Cayman Islands exempted company and its subsidiaries. Bit Digital and WhiteFiber are sometimes referred to herein individually as a “Party”, and collectively as the “Parties”.

 

RECITALS

 

 A.  Bit Digital and WhiteFiber are parties to that certain Section 351 Contribution Agreement dated as of even date herewith (the “Contribution Agreement”).

 

 B. Pursuant to the Contribution Agreement, Bit Digital agreed to transfer to WhiteFiber its subsidiary WhiteFiber AI, Inc. and its subsidiaries, WhiteFiber HPC, Inc. a Delaware company and WhiteFiber ehf, an Icelandic company (collectively, the “HPC Services Business Segment”) for WhiteFiber to acquire the HPC Services Business Segment, which will include WhiteFiber’s existing subsidiary, Enovum Data Centers Corp. (“Enovum”). Accordingly, (1) WhiteFiber will own and conduct, directly and indirectly, the HPC Services Business Segment and (2) Bit Digital will continue to own and conduct, directly and indirectly, its Digital Assets Business (the “Reorganization”).

 

 C. In connection with the transactions contemplated by the Reorganization and in order to ensure a smooth transition following the Reorganization, each Party desires that the other Party provide, or cause its Affiliates or contractors to provide, the Services specified pursuant to this Agreement.

 

 D. It is the intent of the Parties that, except as otherwise provided in this Agreement, the Services be provided at cost, and therefore, the Fees set forth on Annex A or Annex B were calculated to reflect costs only.

 

 In consideration of the forgoing and the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.1 Definitions. Unless otherwise defined herein, each capitalized term will have the meaning specified for such term in the Separation Agreement. As used in this Agreement:

 

“Additional Bit Digital Service” has the meaning set forth in Section 2.2(a).

 

“Additional WhiteFiber Service” has the meaning set forth in Section 2.2(b).

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. For the avoidance of doubt, (a) Affiliates of Bit Digital will include subsidiaries of the HPC Services Business Segment Group prior to the Reorganization, and (b) Affiliates of HPC Services Business Segment will include the HPC Services Business Segment after the Reorganization.

 

 

“Agreement” has the meaning set forth in the Preamble.

 

“Availed Party” has the meaning set forth in Section 5.4(a).

 

“Bit Digital” has the meaning set forth in the Preamble.

 

“Bit Digital Group” means Bit Digital and each Person that is a Subsidiary of Bit Digital (other than WhiteFiber and any of its Subsidiaries).

 

“Bit Digital Indemnified Parties” has the meaning set forth in Section 7.2.

 

“Bit Digital Services” means the Services generally described on Annex A and any other Service provided by Bit Digital or any member of the Bit Digital Group pursuant to this Agreement.

 

“Business” means the HPC Services Business Segment or the Digital Assets Business, as the case may be.

 

“Commercially Reasonable Efforts” means, with respect to the efforts to be expended by a Party with respect to any objective under this Agreement, reasonable, diligent good faith efforts to accomplish such objective as such Party would normally use to accomplish a similar objective as expeditiously as reasonably possible under similar circumstances exercising reasonable business judgment, it being understood and agreed that such efforts will include the exertion of efforts and utilization of resources that would be used by such Party in support of one of its own wholly owned businesses. “Commercially Reasonable Efforts” will not require a Party (a) to make payments to unaffiliated Third Parties (except as set forth in this Agreement), to incur non-de minimis Liabilities to unaffiliated Third Parties or to grant any non-de minimis concessions or accommodations unless the other Party agrees to reimburse and make whole such Party to its reasonable satisfaction for such Liabilities, concessions or accommodations requested to be made by the other Party (such reimbursement and make whole to be made promptly after the determination thereof following the Distribution or, with respect to items incurred after the Distribution, promptly thereafter), (b) to violate any Law, or (c) to initiate any litigation or arbitration.

 

“Confidential Information” shall mean all Information that is either confidential or proprietary.

 

“Digital Assets Business” means the businesses of the Bit Digital Group following the Reorganization.

 

“Eligible Services” has the meaning set forth in Section 6.2(a).

 

“Extendable Service” has the meaning set forth in Section 6.1(b).

 

 

“Fees” means the fees for a particular Service as set forth on Annex A or Annex B, as the case may be.

 

“Force Majeure” shall mean, with respect to a Party, an event beyond the reasonable control of such Party (or any Person acting on its behalf), which event (a) does not arise or result from the fault or negligence of such Party (or any Person acting on its behalf) and (b) by its nature would not reasonably have been foreseen by such Party (or such Person), or, if it would reasonably have been foreseen, was unavoidable, and includes acts of God, acts of civil or military authority, acts of terrorism, cyberattacks, embargoes, epidemics, pandemics (including COVID-19 and Pandemic Measures), war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems, or unavailability of parts, or, in the case of computer systems, any significant and prolonged failure in electrical or air conditioning equipment.

 

“Governmental Authority” means any federal, state, local, provincial, foreign or international court, tribunal, judicial or arbitral body, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority or any national securities exchange.

 

“HPC Services Business Segment” has the meaning set forth in the Recitals.

 

“Information” means information in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, forecasts, budgets, reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know-how, recipes, techniques, designs, specifications, processes, procedures, policies, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs, or other Software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos, manuals and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data, but in any case excluding back-up tapes.

 

“Invoice” has the meaning set forth in Section 4.3(a).

 

“Law” means any statute, law, ordinance, regulation, rule, code, or other requirement of, or order or governmental permit issued by, a Governmental Authority.

 

“Level of Service” has the meaning set forth in Section 3.1(a).

 

“Liabilities” has the meaning set forth in the Separation Agreement.

 

“Local Agreement” has the meaning set forth in Section 2.5.

 

“Notification” has the meaning set forth in Section 6.9(i).

 

“Objection Notice” has the meaning set forth in Section 4.4.

 

“Pandemic Measures” shall mean any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, immunization requirements, safety or similar Law, directive, guidelines or recommendations promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to a pandemic, including COVID-19.

 

 

“Partial Termination” has the meaning set forth in Section 6.2(a).

 

“Party” has the meaning set forth in the Preamble.

 

“Payment Due Date” has the meaning set forth in Section 4.3(b).

 

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other entity or organization or a Governmental Authority.

 

“Project Managers” has the meaning set forth in Section 7.7.

 

“Safety and Security Policies” has the meaning set forth in Section 5.4(a).

 

“Service Provider” means (a) in the case of Bit Digital, or any of its Subsidiaries providing a Service hereunder and, or (b) in the case of WhiteFiber or any of its Subsidiaries providing a Service hereunder.

 

“Service Recipient” means (a) in the case of Bit Digital, or any of its Subsidiaries receiving a Service hereunder and, or (b) in the case of WhiteFiber, or any of its Subsidiaries receiving a Service hereunder.

 

“Service Term” means the term for a particular Service as set forth on Annex A or Annex B.

 

“Services” means the Bit Digital Services or the WhiteFiber Services, individually, or the Bit Digital Services and the WhiteFiber Services, collectively, as the context may indicate.

 

“Subsidiary” has the meaning set forth in the Separation Agreement.

 

“Systems” has the meaning set forth in Section 5.4(a).

 

“Term” has the meaning set forth in Section 6.1(a).

 

“Third Party” shall mean any Person other than the Parties or any of their respective Affiliates.

 

“Transferring Employees” means those employees or former employees of the Service Provider wholly or mainly assigned to the provision of a particular Service immediately before the Termination Date.

 

“Transfer Regulations” means any legislation in any jurisdiction where the Services are provided (as amended or replaced from time to time).

 

“Termination Date” means the date on which the Service Provider ceases to provide a particular Service for the Service Recipient

 

“WhiteFiber” has the meaning set forth in the Preamble.

 

“WhiteFiber Indemnified Parties” has the meaning set forth in Section 7.3 of this Agreement.

 

“WhiteFiber Services” means the Services generally described on Annex B and any other Service provided by WhiteFiber pursuant to this Agreement.

 

 

ARTICLE II
PERFORMANCE AND SERVICES

 

Section 2.1 General.

 

(a) During the Term, and subject to the terms and conditions of this Agreement, Bit Digital will provide, or cause to be provided, the Bit Digital Services to WhiteFiber and its Subsidiaries. The applicable Fee for each Bit Digital Service will be the specified Fee for such Service set forth on Annex A, and the applicable Service Term for each Bit Digital Service will be the specified Service Term for such Bit Digital Service set forth on Annex A. Notwithstanding anything to the contrary contained herein or on any Annex, Bit Digital will have no obligation under this Agreement to: (i) operate the HPC Services Business Segment or any portion thereof (it being acknowledged and agreed by Bit Digital and WhiteFiber that providing the Bit Digital Services will not be deemed to be operating the HPC Business Services Segment or any portion thereof); (ii) advance funds or extend credit to WhiteFiber; (iii) hire new employees for the purpose of providing the Bit Digital Services; (iv) provide Bit Digital Services to any Person other than WhiteFiber or any of its Subsidiaries; or (v) implement, develop or acquire systems, processes, technologies, plans or initiatives not already implemented or utilized by Bit Digital or members of the Bit Digital Group.

 

(b) During the Term, and subject to the terms and conditions of this Agreement, WhiteFiber will provide, or cause to be provided, the WhiteFiber Services to Bit Digital and its Subsidiaries. The applicable Fee for each WhiteFiber Service will be the specified Fee for such WhiteFiber Service set forth on Annex B, and the applicable Service Term for each WhiteFiber Service will be the specified Service Term for such WhiteFiber Service set forth on Annex B. Notwithstanding anything to the contrary contained herein or on any Annex, WhiteFiber will have no obligation under this Agreement to: (i) operate the Digital Assets Business or any portion thereof (it being acknowledged and agreed by Bit Digital and WhiteFiber that providing the WhiteFiber Services will not be deemed to be operating the Digital Assets Business or any portion thereof); (ii) advance funds or extend credit to Bit Digital; (iii) hire new employees for the purpose of providing the WhiteFiber Services; (iv) provide WhiteFiber Services to any Person other than Bit Digital or any of its Subsidiaries; or (v) implement, develop or acquire systems, processes, technologies, plans or initiatives not already implemented or utilized by WhiteFiber or members of the HPC Services Business Segment.

 

(c) Notwithstanding anything to the contrary in this Agreement, neither Bit Digital nor WhiteFiber (nor any of their respective Subsidiaries) will be required to perform Services hereunder or take any actions relating thereto that conflict with or violate any applicable Law, contract, license, sublicense, authorization, certification, permit or would amount to Bit Digital or WhiteFiber performing a “relevant activity” under the International Tax Co-Operation (Economic Substance) Act (Revised) of the Cayman Islands.

 

Section 2.2 Additional Services.

 

(a) If WhiteFiber reasonably determines in good faith after the date hereof that additional transition services (not listed on Annex A) of the type previously provided by members of the Bit Digital Group to the HPC Services Business Segment are necessary to conduct the HPC Services Business Segment, and WhiteFiber or its Subsidiaries are not able to provide such services to the HPC Services Business Segment or such services are not commercially available from Third Party providers, then WhiteFiber may provide written notice thereof to Bit Digital. Upon receipt of such notice by Bit Digital, if Bit Digital is willing, in its sole discretion, to provide such additional service during the Term, the Parties will negotiate in good faith an amendment to Annex A setting forth the additional service (each such service an “Additional Bit Digital Service”), the terms and conditions for the provision of such Additional Bit Digital Service and the Fees to be payable by WhiteFiber for such Additional Bit Digital Service, such Fees to be determined on an arm’s-length basis with the intent that they reflect costs.

 

 

(b) If Bit Digital reasonably determines in good faith after the date hereof that additional transition services (not listed on Annex B) of the type previously provided by WhiteFiber or any of its Subsidiaries to the Digital Assets Business are necessary to conduct the Digital Assets Business, and Bit Digital or members of the Bit Digital Group are not able to provide such services to the Digital Assets Business or such services are not commercially available from Third Party providers, then Bit Digital may provide written notice thereof to WhiteFiber. Upon receipt of such notice by WhiteFiber, if WhiteFiber is willing, in its sole discretion, to provide such additional service during the Term, the Parties will negotiate in good faith an amendment to Annex B setting forth the additional service (each such service an “Additional WhiteFiber Service”), the terms and conditions for the provision of such Additional WhiteFiber Service and the Fees to be payable by Bit Digital for such Additional WhiteFiber Service, such Fees to be determined on an arm’s-length basis with the intent that they reflect costs.

 

Section 2.3 Service Requests. Any requests by a Party to the other Party regarding the Services or any modification or alteration to the provision of the Services must be made by a Project Manager (it being understood that the receiving Party will not be obligated to agree to any modification or alteration requested thereby). Notwithstanding anything to the contrary hereunder, each Party may avail itself of the remedies set forth in Section 6.3 without fulfilling the notice requirements of this Section 2.3.

 

Section 2.4 Access.

 

(a) Subject to ARTICLE V, WhiteFiber, at the reasonable request of Bit Digital, will make available on a timely basis to Bit Digital all information reasonably requested by Bit Digital to enable it to provide the Bit Digital Services. WhiteFiber will give Bit Digital and its Affiliates, employees, agents, and representatives, as reasonably requested by Bit Digital, reasonable access, during regular business hours and at such other times as are reasonably required, to the systems, premises, equipment, facilities, and data of the HPC Services Business Segment for the purposes of providing the Bit Digital Services.

 

(b) Subject to ARTICLE V, Bit Digital, at the reasonable request of WhiteFiber, will make available on a timely basis to WhiteFiber all information reasonably requested by WhiteFiber to enable it to provide the WhiteFiber Services. Bit Digital will give WhiteFiber and its Affiliates, employees, agents, and representatives, as reasonably requested by WhiteFiber, reasonable access, during regular business hours and at such other times as are reasonably required, to the systems, premises, equipment, facilities, and data of the Digital Assets Business for the purposes of providing the WhiteFiber Services.

 

 

Section 2.5 Local Agreements. Each Party recognizes and agrees that it may be necessary or desirable to separately document certain matters relating to the Services provided hereunder in various jurisdictions from time to time or to otherwise modify the scope or nature of such Services, in each case to the extent necessary to comply with applicable Law. If such an agreement or modification of any of the Services is required by applicable Law, or if the applicable Parties mutually determine entry into such an agreement or modification of Services would be desirable, in each case in order for Service Provider or its Subsidiaries to provide any of the Services in a particular jurisdiction, Service Provider and Service Recipient shall, or shall cause their applicable Subsidiaries to, enter into local implementing agreements (as each may be amended and in effect from time to time, each a “Local Agreement”) in form and content reasonably acceptable to the applicable Parties; provided that the execution or performance of any such Local Agreement shall in no way alter or modify any term or condition of this Agreement or the effect of any such term or condition, except to the extent expressly specified in such Local Agreement. Each Party agrees that any Local Agreement shall be subject to Section 5.3 of this Agreement. Except as used in this Section 2.5, any references herein to this Agreement and the Services to be provided hereunder, shall include any Local Agreement and any local services to be provided thereunder. Except as expressly set forth in any Local Agreement, in the event of a conflict between the terms contained in a Local Agreement and the terms contained in this Agreement (including the applicable Schedules), the terms in this Agreement shall take precedence.

 

Section 2.6 System Shutdown. Service Provider shall have the right to shut down temporarily for maintenance or similar purposes the operation of any facilities or systems providing any Service whenever in Service Provider’s reasonable judgment such action is necessary or advisable for general maintenance or emergency purposes; provided that without limiting the immediately following sentence, Service Provider will schedule non-emergency general maintenance impacting the Services so as not to materially disrupt the operation of the HPC Services Business Segment or the Digital Assets Business, as applicable, by Service Recipient. To the extent possible, such shutdowns shall occur during non-business hours. Service Provider will use Commercially Reasonable Efforts to provide Service Recipient advance notice of any shut down for general maintenance purposes or other planned shutdown.

 

ARTICLE III
SERVICE QUALITY; INDEPENDENT CONTRACTOR

 

Section 3.1 Service Quality.

 

(a) Unless otherwise provided with respect to a specific Service on the Applicable Annex, the Service Provider will perform the Services in a manner and quality that is substantially consistent with the manner (including as to quantity) and quality that such Services were performed by such Party (or its applicable Affiliate) in the twelve (12) months prior to the Reorganization for the Digital Assets Business or the HPC Services Business Segment, as applicable, and in any event in compliance with any terms or service levels set forth on the applicable Annex (collectively referred to as the “Level of Service”). The Service Recipient will use the Services in substantially the same manner and on substantially the same scale as they were used by such Party and its Affiliates in the past practice of the Digital Assets Business or the HPC Services Business Segment, as applicable, prior to the Reorganization.

 

(b) Each Party acknowledges and agrees that certain of the Services to be provided under this Agreement have been, and will continue to be, provided (in accordance with this Agreement and the Annexes hereto) to the Digital Assets Business or the WhiteFiber Business, as applicable, by Third Parties designated by the Service Provider. To the extent so provided, the Party responsible for providing such Services will use Commercially Reasonable Efforts to (i) cause such Third Parties to provide such Services under this Agreement and/or (ii) enable the Party seeking the benefit of such Services and its Subsidiaries to avail itself of such Services; provided, however, that if any such Third Party is unable or unwilling to provide any such Services, the Parties agree to use their Commercially Reasonable Efforts to determine the manner, if any, in which such Services can best be provided (it being acknowledged and agreed that any costs or expenses to be incurred in connection with obtaining a Third Party to provide any such Services will be paid by the Party to which such Services are provided; provided that the Service Provider will use Commercially Reasonable Efforts to communicate the costs or expenses expected to be incurred in advance of incurring such costs or expenses).

 

 

Section 3.2 Independent Contractor; Assets; Subcontractors.

 

(a) The Service Provider is an independent contractor. All employees and representatives of the Service Provider and any of its Subsidiaries involved in providing Services will be under the exclusive direction, control and supervision of the Service Provider or its Subsidiaries (or their subcontractors) providing such Services, and not of the Service Recipient. The Service Provider or its Subsidiaries (or their subcontractors) providing the Services will be solely responsible for compensation of its employees, and for all withholding, employment or payroll taxes, unemployment insurance, workers’ compensation, and any other insurance and fringe benefits with respect to such employees. The Service Provider or its Subsidiaries (or their subcontractors) providing the Services will have the exclusive right to hire and fire any of its employees in accordance with applicable Law. The Service Recipient will have no right to direct and control any of the employees or representatives of the Party or its Subsidiaries (or their subcontractors) providing such Services.

 

(b) All procedures, methods, systems, strategies, tools, equipment, facilities, software, data and other resources used by a Party, any of its Subsidiaries or any Third Party service provider in connection with the provision of the Services hereunder will remain the property of such Party, its Subsidiaries or such service providers and, except as otherwise provided herein, will at all times be under the sole direction and control of such Party, its Subsidiaries or such Third Party service provider. No license under any patents, know-how, trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure in connection with this Agreement by either Party. Service Recipient shall not attempt to decompile, translate, reverse engineer, or make excessive copies of any intellectual property owned or licensed by Service Provider, and Service Recipient shall promptly notify Service Provider of any such attempt, regardless of whether by Service Recipient or any Third Party, of which Service Recipient becomes aware.

 

(c) The Service Provider may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided that (a) the Service Provider will use the same degree of care in selecting any such subcontractor as it would if such contractor was being retained to provide similar services to the Service Provider; and (b) the Service Provider will in all cases remain primarily responsible for all of its obligations hereunder with respect to the scope of the Services, the standard for services as set forth in ARTICLE III and the content of the Services provided to the Service Recipient. The Service Provider may replace a subcontractor providing Services under this Agreement, provided that the costs of the replacement subcontractor are not materially higher than the costs for such previous subcontractor. The Service Provider will provide notice to the Service Recipient prior to replacing or hiring new subcontractors whenever reasonably possible.

 

 

Section 3.3 Uses of Services. The Service Provider will be required to provide the Services only to the Service Recipient and the Service Recipient’s Subsidiaries in connection with the Service Recipient’s operation of the Business. The Service Recipient may not resell any Services to any Person whatsoever or permit the use of such Services by any Person other than in connection with the operation of the Business in the ordinary course of business.

 

Section 3.4 Modification of Services. The Parties agree that each Service Provider may make changes from time to time in the manner of performing the applicable Service if such Service Provider is making similar changes in performing similar services for itself, its Affiliates or other Third Parties, if any, provided that such Service Provider furnishes to the Service Recipient substantially the same notice (in content) as such Service Provider provides to its Affiliates or Third Parties, if any, respecting such changes; provided further that each Service Provider may make any of the following changes without obtaining the prior consent of, and without prior notice to, the Service Recipient: (a) changes to the process of performing a particular Service that do not adversely affect the benefits to the Service Recipient in any material respect or materially increase the charge for such Service; (b) emergency changes on a temporary and short-term basis; and (c) changes to a particular Service in order to comply with applicable Law.

 

Section 3.5 Transition of Responsibilities. Each Party agrees to use Commercially Reasonable Efforts to reduce or eliminate its and its Subsidiaries’ dependence on each Service as soon as is reasonably practicable. Each Party agrees to cooperate with the other Party to facilitate the smooth transition of the Services being provided to the Service Recipient by the Service Provider.

 

Section 3.6 Substantive Business Decisions Prohibited. Notwithstanding anything to the contrary contained in this Agreement or the accompanying schedules, none of the Service Provider or its Subsidiaries, authorized agents, and subcontractors (if any) shall make any substantive business decisions with respect to Service Recipient in performing Services. Each provision of this Agreement and the schedules shall be interpreted in a manner consistent with this Section 3.6.

 

Section 3.7 Disclaimer of Warranties. Except as expressly set forth in this Agreement: (i) each Party acknowledges and agrees (on behalf of itself and any other Service Recipient) that Service Provider makes no warranties of any kind with respect to the Services to be provided hereunder; and (ii) Service Provider hereby expressly disclaims all warranties with respect to the Services to be provided hereunder, as further set forth immediately below.

 

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES OR ACCESS TO SYSTEMS, FACILITIES AND DATA TO BE PROVIDED UNDER THIS AGREEMENT WILL BE PROVIDED AS-IS, WHERE-IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, TITLE OR ANY OTHER WARRANTY WHATSOEVER.

 

 

ARTICLE IV
FEES; PAYMENT

 

Section 4.1 Fees. The Service Recipient will pay the Service Provider the Fees for the Services provided by such Service Provider under this Agreement. The Fees for the Services are set forth on Annex A and Annex B. During the term of this Agreement, the amount of a Fee for any Service may be modified to the extent of (a) any adjustments mutually agreed to by the Parties, (b) any adjustments due to a change in Level of Service requested by Service Recipient and agreed upon by Service Provider, and (c) any adjustment in the rates or charges imposed by any Third Party provider that is providing Services; provided that Service Provider will notify Service Recipient in writing of any such change in rates at least thirty (30) days prior to the effective date of such rate change.

 

Section 4.2 Taxes. To the extent required or permitted by applicable Law, there will be added to any Fees due under this Agreement, and Service Recipient agrees to pay to the Service Provider, amounts equal to any Taxes paid or payable by the Service Provider, however designated or levied, based upon such Fees, or upon this Agreement or the Services provided under this Agreement, or their use. In the event Taxes are not added to an invoice from the Service Provider hereunder, the Service Recipient is responsible to remit to the appropriate jurisdiction any additional amounts due, including Taxes, interest, and penalties. The Parties will reasonably cooperate with each other to minimize any of these Taxes and to obtain and provide each other with reasonable documentation related to these Taxes. If additional amounts are determined to be due on the Services provided hereunder as a result of an audit by a tax jurisdiction, Service Recipient agrees to reimburse the Service Provider for the additional amounts due including Taxes, interest, and penalties. The Parties further agree that, notwithstanding the foregoing, neither Party will be required to pay any income, franchise, or employment Taxes of the other Party. All payments and reimbursements due under this Section 4.2 will be calculated in a manner that ensures that the Service Provider receives the same net amounts under this Agreement that it would have received in the absence of Taxes.

 

Section 4.3 Invoices and Payment.

 

(a) Unless otherwise specified in Annex A or Annex B, within thirty (30) days following the end of each fiscal month of Service Provider, the Service Provider will submit to the Service Recipient for payment a written statement of amounts due under this Agreement for such month (an “Invoice”). The Invoice will set forth the Fees and any Third Party costs or charges that are required to be reimbursed by Service Recipient in connection with the provision of any Services, in the aggregate and itemized, based on the descriptions set forth on Annex A or Annex B, as the case may be. Each statement will specify the nature of any amounts due for any Fees as set forth on Annex A or Annex B and will contain reasonably satisfactory documentation in support of such amounts as specified therein and such other supporting detail as the Service Recipient may reasonably require to validate such amounts due.

 

(b) Unless otherwise specified in Annex A or Annex B, the Service Recipient will pay all amounts due pursuant to an Invoice no later than sixty (60) days after the date of the Invoice (the “Payment Due Date”). All timely payments under this Agreement will be made without early payment discount.

 

(c) Subject to Section 4.4, if the Service Recipient fails to pay the full amount of any invoice by the Payment Due Date, such failure will be considered a material default under this Agreement. The remedies provided to each Party by this Section 4.3(c) and by Section 6.3 will be cumulative with respect to any other applicable provisions of this Agreement. Payments made after the Payment Due Date will bear interest at the rates set forth in Annex A or Annex B for the applicable Services.

 

Section 4.4 Payment Disputes. The Service Recipient may object to any amounts for any Service invoiced to it at any time before, at the time of, or after payment is made, provided such objection is made in writing (“Objection Notice”) to the Service Provider prior to the Payment Due Date. Any dispute under this Section 4.4 will be resolved in accordance with the provisions of Section 7.8 of this Agreement. The Service Recipient will pay interest, which will begin to accrue beginning on the date that is sixty (60) days following receipt of the Service Recipient’s Objection Notice, at an annual rate equal to the Prime Rate plus 2.0% (compounded monthly) on any amounts it is required to pay to the Service Provider upon resolution of the dispute if the dispute is resolved in the Service Provider’s favor.

 

 

ARTICLE V
CONFIDENTIALITY; SECURITY

 

Section 5.1 Bit Digital and WhiteFiber Obligations. Subject to Section 5.4, until the six (6) year anniversary of the date of the termination of this Agreement in its entirety, each of Bit Digital and WhiteFiber, on behalf of itself and each of its Subsidiaries, agrees to hold, and to cause its respective Representatives to hold, in strict confidence, with at least the same degree of care that applies to Bit Digital’s Confidential Information pursuant to policies in effect as of the Effective Time, all Confidential Information concerning the other Party or its Subsidiaries or their respective businesses that is either in its possession (including Confidential Information in its possession prior to the date hereof) or furnished by such other Party or such other Party’s Subsidiaries or their respective Representatives at any time pursuant to this Agreement, and shall not use any such Confidential Information other than for such purposes as may be expressly permitted hereunder, except, in each case, to the extent that such Confidential Information (a) is in the public domain or is generally available to the public, other than as a result of a disclosure by such Party or any of its Subsidiaries or any of their respective Representatives in violation of this Agreement; (b) is lawfully acquired from other sources by such Party or any of its Subsidiaries, which sources are not themselves known by such Party or any of its Subsidiaries to be bound by a confidentiality obligation or other contractual, legal or fiduciary obligation of confidentiality with respect to such Confidential Information; (c) is independently developed or generated without reference to or use of the Confidential Information of the other Party or any of its Subsidiaries; or (d) was in such Party’s or its Subsidiaries’ possession on a non-confidential basis prior to the time of disclosure to such Party and at the time of such disclosure was not known by such Party or any of its Subsidiaries to be prohibited from being disclosed by a confidentiality obligation or other contractual, legal or fiduciary obligation of confidentiality with respect to such Confidential Information. If any Confidential Information of a Party or any of its Subsidiaries is disclosed to the other Party or any of its Subsidiaries in connection with providing the Services, then such disclosed Confidential Information shall be used only as required to perform such Services.

 

Section 5.2 No Release; Return or Destruction. Each Party agrees (a) not to release or disclose, or permit to be released or disclosed, any Confidential Information of the other Party addressed in Section 5.1 to any other Person, except its Representatives who need to know such Confidential Information in their capacities as such (who shall be advised of their obligations hereunder with respect to such Confidential Information) and except in compliance with Section 5.4, and (b) to use Commercially Reasonable Efforts to maintain such Confidential Information. Without limiting the foregoing, when any such Confidential Information is no longer needed for the purposes contemplated by the Separation Agreement, this Agreement or any other Transaction Documents, each Party will promptly after request of the other Party either return to the other Party all such Confidential Information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or notify the other Party in writing that it has destroyed such information (and such copies thereof and such notes, extracts or summaries based thereon); provided that the Parties may retain electronic back-up versions of such Confidential Information maintained on routine computer system backup tapes, disks or other backup storage devices; and provided, further, that any such retained back-up information shall remain subject to the confidentiality provisions of this Agreement.

 

 

Section 5.3 Protective Arrangements. In the event that a Party or any of its Subsidiaries either determines on the advice of its counsel that it is required to disclose any information pursuant to applicable Law or receives any request or demand under lawful process or from any Governmental Authority to disclose or provide information of the other Party (or any of its Subsidiaries) that is subject to the confidentiality provisions hereof, such Party shall notify the other Party (to the extent legally permitted) as promptly as practicable under the circumstances prior to disclosing or providing such information and shall cooperate, at the expense of the other Party, in seeking any appropriate protective order requested by the other Party. In the event that such other Party fails to receive such appropriate protective order in a timely manner and the Party receiving the request or demand reasonably determines that its failure to disclose or provide such information shall actually prejudice the Party receiving the request or demand, then the Party that received such request or demand may thereafter disclose or provide information to the extent required by such Law (as so advised by its counsel) or by lawful process or such Governmental Authority and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information, and the disclosing Party shall promptly provide the other Party with a copy of the information so disclosed, in the same form and format so disclosed, together with a list of all Persons to whom such information was disclosed, in each case to the extent legally permitted. The obligations in this ARTICLE V shall survive any expiration or termination of this Agreement for six (6) years after the date of expiration or termination of this Agreement; provided, however, that, with respect to each trade secret of a Party or its Affiliates, such obligations shall continue as long as such trade secret remains otherwise protectable as a trade secret.

 

Section 5.4 Security.

 

(a) If either Party (including its Affiliates and their employees, authorized agents and subcontractors) is given access to the other Party’s computer systems or software (collectively, “Systems”), premises, equipment, facilities, or data in connection with the Services, the Party given access (the “Availed Party”) will each comply with (and will cause its Affiliates, and their employees, authorized agents and subcontractors to comply with) their respective policies and procedures in relation to the use and access of the other Party’s Systems, premises, equipment, facilities or data (collectively, “Safety and Security Policies”), and will not compromise or circumvent any safety, security or audit measures employed by such other Party. The Availed Party will access and use only those Systems, premises, equipment, facilities, and data of the other Party for which it has been granted the right to access and use.

 

(b) Each Party will use Commercially Reasonable Efforts to ensure that only those of its personnel who are specifically authorized to have access to the Systems, premises, equipment, facilities, and data of the other Party gain such access, and use Commercially Reasonable Efforts to prevent unauthorized access, use, destruction, alteration, or loss of such Systems, premises, equipment, facilities, or data (including, in each case, any information contained therein), including notifying its personnel of the restrictions set forth in this Agreement and of the Safety and Security Policies.

 

 

(c) If, at any time, the Availed Party determines that any of its personnel has sought to circumvent, or has circumvented, the Safety and Security Policies, that any unauthorized Availed Party personnel has accessed the Systems, premises, equipment, facilities, or data, or that any of its personnel has engaged in activities that may lead to the unauthorized access, use, destruction, alteration, or loss of, or damage to, premises, facilities, equipment, data, information, or software of the other Party, the Availed Party will promptly terminate any such person’s access to the Systems, premises, equipment, facilities, or data and promptly notify the other Party. In addition, such other Party will have the right to deny personnel of the Availed Party access to its Systems, premises, equipment, facilities, or data upon notice to the Availed Party in the event that the other Party reasonably believes that such personnel have engaged in any of the activities set forth above in this Section 5.4(c) or otherwise pose a security concern. The Availed Party will use Commercially Reasonable Efforts to cooperate with the other Party in investigating any apparent unauthorized access to such other Party’s Systems, premises, equipment, facilities, or data.

 

(d) If any Systems, premises, equipment, or facilities of a Party are damaged (ordinary wear and tear excepted) due to the conduct of the Availed Party or any of its Affiliates, or their employees, authorized agents, or subcontractors, the Availed Party will be liable to the other Party for all costs associated with such damage, to the extent such costs exceed any available insurance proceeds.

 

ARTICLE VI
TERMINATION

 

Section 6.1 Term.

 

(a) The term of this Agreement (the “Term”) will commence upon the Reorganization and end on the earliest to occur of (i) the date on which the provision of all Services have terminated pursuant to Annex A or Annex B (inclusive of any term extension agreed to by the Parties for any Extendable Service pursuant to Section 6.1(b)), (ii) the date on which the provision of all Services has been terminated by the Parties pursuant to Section 6.2, (iii) the date this Agreement is terminated pursuant to Section 6.3, and (iv) the date that is twenty-four (24) months after the Reorganization.

 

(b) Unless identified on Annex A and Annex B as ineligible for extension, all Services are eligible for an extension of their respective Service Term as provided in this Section 6.1(b) (each such Service, an “Extendable Service”). To the extent reasonably necessary to (i) continue the transition of any Extendable Service from Service Provider or its Affiliates to Service Recipients, its Affiliates or other providers, and (ii) the continued operation of Service Recipient’s business in connection therewith, in each case, as reasonably agreed by Service Provider and Service Recipient, Service Recipient may elect, by delivering written notice to Service Provider no later than sixty (60) days prior to the end of the then in effect term for such Extendable Service, to extend any such Extendable Service (and, as necessary, the term of this Agreement with respect to such Service) for a maximum period of six (6) months beyond the scheduled termination of such Service (which period shall in no event end later than the date that is the thirty-six (36) month anniversary of the Distribution Date); provided, however, that Service Recipient may only extend each such Extendable Service one time; provided further, however, that any extension of the Service Term for such Extendable Service is subject to receiving any necessary consents from Third Party vendors to such extension. To the extent the Service Term of any Extendable Service is extended hereunder, Service Recipient will be responsible for any incremental costs related to enabling such extension. If Service Provider agrees to provide such Extendable Service during the requested period, then (i) the Parties shall in good faith negotiate the terms of an amendment to the Annexes hereto, which amendment shall be consistent with the terms of the applicable Service, and (ii) the Fee for such Service during the extension of the Service Term shall be equal to 105% of the original Fee for such Service.

 

 

Section 6.2 Partial Termination.

 

(a) Unless identified on Annex A or Annex B as ineligible for termination prior to the expiration of the Service Term, all Services are eligible for termination prior to the expiration of the Service Term (“Eligible Services”). The Service Recipient may, upon providing sixty (60) days written notice to the Service Provider and satisfying any such other requirements specified in Annex A or Annex B with respect to any such Eligible Service, terminate any Eligible Services that, prior to the expiration of the Service Term, are no longer needed from the Service Provider, in which case this Agreement will terminate as to such Eligible Services (a “Partial Termination”); provided, that such termination shall not relieve the Service Recipient from any obligations arising under this Agreement prior to the termination of such Service(s) or its obligations with regard to those Services it continues to receive. The Parties will mutually agree as to the effective date of any Partial Termination.

 

(b) In the event of any termination prior to the scheduled expiration of the Service Term or of any Partial Termination hereunder, with respect to any terminated Services in which the Fee for such terminated Services is charged as a flat monthly rate, if termination occurs other than the end of the month, there will be no proration of the monthly rate. To the extent any amounts due or advances made hereunder related to costs or expenses that have been or will be incurred and that cannot be recovered by the Service Provider, such amounts due or advances made will not be prorated or reduced and the Service Provider will not be required to refund to the Service Recipient any prorated amount for such costs or expenses; and the Service Recipient will reimburse the Service Provider for (i) Service Recipient’s proportional share of any Third Party costs or charges that are required to be paid in connection with the provision of any Services and that cannot be terminated and (ii) any Third Party cancellation or similar charges incurred as a result of the Service Recipient’s early termination.

 

Section 6.3 Termination of Entire Agreement. Subject to the provisions of Section 6.5, a Party will have the right to terminate this Agreement or effect a Partial Termination effective upon delivery of written notice to the other Party if the other Party:

 

(a) makes an assignment for the benefit of creditors, or becomes bankrupt or insolvent, or is petitioned into bankruptcy, or takes advantage (with respect to its own property and business) of any state, federal or foreign bankruptcy or insolvency act, or if a receiver or receiver/manager is appointed for all or any substantial part of its property and business and such receiver or receiver/manager remains undischarged for a period of thirty (30) days; or

 

(b) materially defaults in the performance of any of its covenants or obligations contained in this Agreement (or, in the case of a Partial Termination, with respect to the Services being terminated) and such default is not remedied to the non-defaulting Party’s reasonable satisfaction within thirty (30) days after receipt of written notice by the defaulting Party informing such Party of such default, or if such default is not capable of being cured within thirty (30) days, if the defaulting Party has not promptly begun to cure the default within such thirty (30) day period and thereafter proceeded with all diligence to cure the same.

 

 

Section 6.4 Procedures on Termination. Following any termination of this Agreement or Partial Termination, each Party will cooperate with the other Party as reasonably necessary to avoid disruption of the ordinary course of the other Party’s and its Subsidiaries’ businesses. Termination will not affect any right to payment for Services provided prior to termination.

 

Section 6.5 Effect of Termination. Section 4.1 and Section 4.2 (in each case, with respect to Fees and Taxes attributable to periods prior to termination), Section 3.2, Section 4.3, Section 4.4, Section 6.4, this Section 6.5, ARTICLE I, ARTICLE V, ARTICLE VII and ARTICLE VIII will survive any termination of this Agreement. In the event of a Partial Termination, this Agreement will remain in full force and effect with respect to the Services which have not been terminated by the Parties as provided herein. For the avoidance of doubt, the termination of this Agreement with respect to the Services provided under one Annex, but not the other Annex, will not be a termination of this Agreement.

 

Section 6.6 Exit. The Parties acknowledge that Transfer Regulations may apply on termination of the whole or part of this Agreement such that the contracts of employment between the Service Provider and the Transferring Employees may have effect as if originally made between the Service Recipient and the Transferring Employees and that any collective agreements applicable to such Transferring Employees may have effect between the Service Recipient and the relevant trade union.

 

Section 6.7 Responsibility for Salary and Other Benefits on Exit. All emoluments and outgoings in relation to the Transferring Employees (including without limitation all wages, bonuses, holiday pay, social insurance contributions, pension contributions and otherwise) shall be borne by the Service Provider up to and including the Termination Date and by the Service Recipient with effect from the Termination Date.

 

Section 6.8 Indemnities on Exit. In connection with a transfer under Section 6.6, the Parties agree that:

 

(a) the Service Provider will indemnify, keep indemnified, and hold harmless the Service Recipient against all Liabilities in respect of the Transferring Employees, arising from, in respect of or as a result of:

 

(i) any act or omission by the Service Provider (including any failure to comply with an applicable obligation under Section 6.7) relating to any Transferring Employees occurring prior to the Termination Date; and

 

(ii) any failure by the Service Provider to comply with any requirement of any Transfer Regulations;

 

(b) the Service Recipient will indemnify, keep indemnified, and hold harmless, the Service Provider against all Liabilities in respect of the Transferring Employees arising from, in respect of or as a result of:

 

(i) any act or omission by the Service Recipient (including any failure to comply with an applicable obligation under Section 6.7) relating to any Transferring Employees occurring on or after the Termination Date;

 

 

(ii) any claim arising out of the provision of or proposal by the Service Recipient to offer or effect any variation to any benefit, term or condition or working condition of any Transferring Employees which is intended to take effect on or after the Termination Date; and

 

(iii) any failure by the Service Recipient to comply with any Transfer Regulations in respect of the Transferring Employees.

 

Section 6.9 Procedure and Indemnity for Claims by Non-Transferring Employees.

 

(a) If any person other than any Transferring Employee claims or alleges as a result of the termination of this Agreement that his contract of employment has transferred to the Service Recipient pursuant to any Transfer Regulations, the following process shall apply:

 

(i) the Service Recipient shall notify the Service Provider in writing within thirty-five (35) days of the Termination Date and in any event seven (7) days of becoming aware of that allegation or claim (“Notification”);

 

(ii) within twenty-eight (28) days of Notification, the Service Provider may offer employment to such person on their existing terms and conditions of employment. If such offer of employment is accepted, the Service Recipient shall immediately release the person from its employment; and

 

(iii) if an offer of employment has not been made or accepted then the Service Recipient may terminate the employment of such person within seven (7) days of the expiry of the twenty-eight (28) day period referred to in Section 6.9(a)(ii).

 

Subject to the provisions of Section 6.9 being followed by the Service Recipient, the Service Provider will indemnify, keep indemnified, and hold harmless, the Service Recipient against all Liabilities arising out of such allegation or claim up to the date of and in respect of such termination. If the Service Recipient fails to take the action outlined in Section 6.9(a)(iii) within the appropriate time period then such person will be deemed a Transferring Employee.

 

ARTICLE VII
INDEMNIFICATION AND DISPUTE RESOLUTION

 

Section 7.1 Limitation of Liability.

 

(a) No Party nor any of such Party’s Affiliates will be liable, whether in contract, tort (including negligence and strict liability) or otherwise, for any special, indirect, punitive, incidental or consequential damages whatsoever that in any way arise out of, relate to, or are a consequence of, its performance or nonperformance hereunder, or the provision of or failure to provide any Service hereunder, including loss of profits, loss of data, diminution in value, business interruptions and claims of customers, whether or not such damages are foreseeable or any Party has been advised of the possibility or likelihood of such damages.

 

(b) Except for Liabilities arising out of or related to the gross negligence, willful misconduct, or bad faith of the Service Provider, in no event will the Service Provider’s aggregate liability arising under or in connection with this Agreement (or the provision of Services hereunder) exceed the Fees paid or payable to the Service Provider from the Service Recipient pursuant to this Agreement in respect of the Service from which such Liabilities flows.

 

 

(c) Each Party will use Commercially Reasonable Efforts to mitigate the Liabilities for which the other is responsible hereunder. In the event of any breach of this Agreement by any Service Provider with respect to the provision of any Services (with respect to which the Service Provider can reasonably be expected to re-perform in a commercially reasonable manner), the Service Provider shall promptly correct in all material respects such error, defect or breach or to perform again in all material respects such Services at the request of the Service Recipient and at the sole cost and expense of the Service Provider. Any request for re-performance in accordance with this Section 7.1(c) by the Service Recipient must be in writing and specify in reasonable detail the particular error, defect, or breach, and such request must be made no more than one (1) month from the date such error, defect or breach becomes apparent to the Service Recipient or should have reasonably become apparent to the Service Recipient. This Section 7.1(c) shall survive any termination of this Agreement.

 

Section 7.2 Indemnification by WhiteFiber. WhiteFiber will indemnify, defend and hold harmless each of the Bit Digital Indemnified Parties for any Liabilities incurred by the Bit Digital Indemnified Parties to the extent arising from or relating to: (a) any material breach of this Agreement by WhiteFiber (including in the event resulting in a termination by Bit Digital under Section 6.3); (b) any gross negligence, willful misconduct, fraud, or bad faith by WhiteFiber, the other members of the HPC Services Business Segment, or its or their employees, suppliers or contractors, in the provision of the WhiteFiber Services by WhiteFiber, the other members of the HPC Services Business Segment or its or their employees, suppliers or contractors pursuant to this Agreement; and (c) the provision of the Bit Digital Services by Bit Digital, the other members of the Bit Digital Group or its or their employees, suppliers or contractors, except to the extent that such Liabilities are finally determined by a court of competent jurisdiction to have arisen out of the material breach of this Agreement, gross negligence, willful misconduct, or bad faith of Bit Digital, the other members of the Bit Digital Group or its or their employees, suppliers, or contractors in providing the Bit Digital Services.

 

Section 7.3 Indemnification by Bit Digital. Bit Digital will indemnify, defend and hold harmless each of the WhiteFiber Indemnified Parties for any Liabilities incurred by the WhiteFiber Indemnified Parties to the extent arising from or relating to: (a) any material breach of this Agreement by Bit Digital (including in the event resulting in a termination by WhiteFiber under Section 6.3); (b) any gross negligence, willful misconduct, fraud, or bad faith by Bit Digital, the other members of the Bit Digital Group, or its or their employees, suppliers or contractors, in the provision of the Bit Digital Services by Bit Digital, the other members of the Bit Digital Group or its or their employees, suppliers or contractors pursuant to this Agreement; and (c) the provision of the WhiteFiber Services by WhiteFiber, the other members of the HPC Services Business Segment or its or their employees, suppliers or contractors, except to the extent that such Liabilities are finally determined by a court of competent jurisdiction to have arisen out of the material breach of this Agreement, gross negligence, willful misconduct, or bad faith of WhiteFiber, the other members of the HPC Services Business Segment or its or their employees, suppliers, or contractors in providing the WhiteFiber Services.

 

 

Section 7.4 Exclusive Remedy. Except for equitable relief and rights pursuant to Section 4.2, Section 4.3(b) or ARTICLE V, the indemnification provisions of this ARTICLE VII will be the exclusive remedy for breach of this Agreement.

 

Section 7.5 Risk Allocation. Each Party agrees that the Fees charged under this Agreement reflect the allocation of risk between the Parties, including the disclaimer of warranties in Section 3.7 and the limitations on liability in Section 7.1. Modifying the allocation of risk from what is stated here would affect the Fees that are charged for the Services, and in consideration of those Fees, each Party agrees to the stated allocation of risk.

 

Section 7.6 Indemnification Procedures. All claims for indemnification pursuant to ARTICLE V or this ARTICLE VII will be made as follows:

 

Each Person seeking indemnification under this Agreement (the “Indemnitee”) will give prompt written notice to the Person from whom indemnification is sought (the “Indemnifying Party”) of the assertion of any claim or the commencement of any Action by any Third Party (“Third-Party Claim”); provided that the failure of the Indemnitee to give notice as provided in this Section 7.6 will not relieve any Indemnifying Party of its obligations under ARTICLE V or ARTICLE VII, except to the extent that such failure actually prejudices the rights of any such Indemnifying Party. Such notice will set forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to the Indemnitee). Thereafter, the Indemnitee will deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnitee’s receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnitee relating to the Third-Party Claim and the Indemnitee will provide the Indemnifying Party with such other Information with respect to any such Third-Party Claim reasonably requested by the Indemnifying Party. The Indemnifying Party will have the right, at its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this Section 7.6, to assume control of, and defend against, negotiate, settle or otherwise deal with such Third-Party Claim, but the Indemnitee may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. In the case of any Third-Party Claim for which indemnification is sought, the Indemnifying Party will have the right, upon written notice to the Indemnitee within 30 days after receipt of the notice of such claim (the “Indemnification Dispute Period”), to assume control of and defend against such Third-Party Claim. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third-Party Claim, or fails to provide the Indemnitee with notice of its intent to assume control of and defend against any Third-Party Claim within the Indemnification Dispute Period, then the Indemnitee may defend against, negotiate, settle or otherwise deal with such Third-Party Claim. If the Indemnifying Party will assume the defense of any Third-Party Claim pursuant to this Article VII, then the Indemnitee may participate, at his or its own expense, in the defense of such Third-Party Claim; provided that such Indemnitee will be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnitee and the Indemnifying Party that would make such separate representation advisable; provided, further that the Indemnifying Party will not be required to pay for more than one such counsel for all Indemnitees in connection with any Third-Party Claim. Notwithstanding the foregoing, participation by the Indemnitee will allow the Indemnitee to consult with independent counsel or advisors and to submit comments and questions, which the Indemnifying Party will consider or respond to in good faith but the Indemnifying Party will not be obligated to act upon and, subject to the terms of this Article VII, such comments or questions will not alter or limit the Indemnifying Party’s obligations as set forth in this Agreement.

 

 

Notwithstanding anything to the contrary hereunder, neither Party may assert against the other Party or submit to arbitration or legal proceedings any cause of action, dispute or claim for indemnification which accrued more than two (2) years after the later of (a) the occurrence of the act or event giving rise to the underlying cause of action, dispute or claim, and (b) the date on which such act or event was, or should have been, in the exercise of reasonable due diligence, discovered by the Party asserting the cause of action, dispute or claim.

 

Section 7.7 Project Managers. Each Party shall appoint one or more representatives who will be its authorized representative and empowered to act on its behalf in connection with this Agreement (each a “Project Manager” and collectively, the “Project Managers”). The Project Managers shall (a) represent and act for their respective Party for matters related to the applicable Service, and (b) meet and/or confer on a regular basis (at mutually agreed times and locations) to review the activities under this Agreement and to discuss the status and progress of such activities, including, without limitation, any partial termination of Services and progress towards transitioning off of Services. The Project Managers will have day-to-day responsibility for the provision and use of the Services. The initial Project Managers will be the Persons identified on Annex B. Each Party will promptly notify the other in writing in the event of any change to the appointment a Project Manager.

 

Section 7.8 Mediation. In the event that a Dispute has not been resolved within 30 days of the receipt of the initial notice in accordance with Section 7.6, or within such longer period as the Parties may agree to in writing, then such Dispute shall, upon the written request of a Party (the “Mediation Request”), be submitted to mandatory mediation in accordance with the American Arbitration Association (the “AAA”), Mediation Procedure (the “Procedure”) then in effect, except as modified herein. The mediation shall be held in (i) at the time a Mediation Request is submitted in New York City, New York, or (ii) such other place as the Parties may mutually agree in writing. The parties shall have fifteen (15) days from receipt of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within fifteen (15) days of receipt of a Mediation Request, then any Party may request (on written notice to the other Party) that the AAA appoint a mediator in accordance with the Procedure. If the Dispute has not been resolved within thirty (30) days of the appointment of a mediator, or within such longer period as the Parties may agree to in writing, either Party may commence litigation in the appropriate jurisdiction.

 

ARTICLE VIII
MISCELLANEOUS

 

Section 8.1 Amendments and Waivers.

 

(a) This Agreement may be amended and any provision of this Agreement may be waived; provided, however, that any such amendment or waiver, as the case may be, is in writing and signed, in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No course of dealing between or among any Persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.

 

 

(b) No delay or failure in exercising any right, power or remedy hereunder will affect or operate as a waiver thereof; nor will any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have.

 

Section 8.2 Notices. All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (a) upon transmission, if sent by email with confirmation of receipt, (b) when delivered, if delivered personally to the intended recipient, and (c) one Business Day following sending by overnight delivery via an international courier service and, in each case, addressed to a Party at the following address for such Party:

 

If to Bit Digital or any member of the Bit Digital Group:

 

Bit Digital, Inc.

 

31 Hudson Yards, 11^th Floor

 

New York, NY 10001

 

Attention: Samir Tabar, CEO

Email: ***@***

 

if WhiteFiber, Inc.:

 

WhiteFiber, Inc.

 

31 Hudson Yards, 11th Floor

 

New York, NY 10001

 

Attention: Erke Huang, CFO 

Email:  ***@***

 

or to such other address(es) as may be furnished in writing by any such Party to the other Party in accordance with the provisions of this Section 8.2.

 

Section 8.3 Entire Agreement. This Agreement, including the Annexes hereto and the sections of the Separation Agreement referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements and understandings of the Parties of any nature, whether oral or written, with respect to such subject matter.

 

Section 8.4 No Third-Party Beneficiaries. Except to the extent otherwise provided in ARTICLE VII, this Agreement is solely for the benefit of the Parties and does not confer on Third Parties any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement.

 

 

Section 8.5 Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement will be governed by, and construed in accordance with, the Laws of the State of New York, without regard to the conflict of Laws provisions thereof that would cause the Laws of another state to apply.

 

Section 8.6 Assignability. No Party may assign its rights or delegate its duties under this Agreement without the written consent of the other Party, except that a Party may assign its rights or delegate its duties under this Agreement to a member of its Group, provided that (a) such Person agrees in writing to be bound by the terms and conditions contained in this Agreement and (b) such assignment or delegation will not relieve any Party of its indemnification obligations or other obligations under this Agreement. Any attempted assignment or delegation in contravention of the foregoing will be void.

 

Section 8.7 Severability. The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable Law.

 

Section 8.8 Counterparts. This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one Party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party, the other Party will re-execute original forms thereof and deliver them to the requesting Party.

 

Section 8.9 Rules of Construction. The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Whenever required by the context, any pronoun used in this Agreement or Annexes will include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs will include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. References in this Agreement to any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, disclosure letters, schedules and other attachments thereto. Unless the context otherwise requires, any references to an “Annex,” “Section” or “Article” will be to an Annex, Section or Article to or of this Agreement. The use of the words “include” or “including” in this Agreement or the Schedules will be deemed to be followed by the words “without limitation.” The use of the word “covenant” will mean “covenant and agreement.” The use of the words “or,” “either” or “any” will not be exclusive. Days mean calendar days unless specified as Business Days. References to statutes will include all regulations promulgated thereunder, and references to statutes or regulations will be construed to include all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation as of the date hereof. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement or any other Transaction Document, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party, such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.

 

 

Section 8.10 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the Parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which any Party is entitled at Law or in equity. Each Party further agrees that no other Party or any other Person will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.10, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument and will not contest the appropriateness of specific performance as a remedy.

 

Section 8.11 Precedence of Schedules. Each Schedule attached to or referenced in this Agreement is hereby incorporated into and shall form a part of this Agreement; provided, however, that the terms contained in such Schedule shall only apply with respect to the Services provided under that Schedule. In the event of a conflict between the terms contained in an individual Schedule and the terms in the body of this Agreement, the terms in the Schedule shall take precedence with respect to the Services under such Schedule only. No terms contained in individual Schedules shall otherwise modify the terms of this Agreement.

 

Section 8.12 Force Majeure. No Party shall be deemed in default of this Agreement for any delay or failure to fulfill any obligation (other than a payment obligation) hereunder so long as and to the extent to which any delay or failure in the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. Without limiting the termination rights contained in this Agreement, in the event of any such excused delay, the time for performance of such obligation (other than a payment obligation) shall be extended for a period equal to the time lost by reason of the delay. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use Commercially Reasonable Efforts to remove any such causes and resume performance under this Agreement as soon as reasonably practicable (and in no event later than the date that the affected Party resumes analogous performance under any other agreement for itself, its Affiliates or any Third Party) unless this Agreement has previously been terminated under ARTICLE VI.

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

BIT DIGITAL, INC.

 

By:
Name:	Samir Tabar
Title:	Chief Executive Officer
WHITEFIBER, INC.
By:
Name:	Erke Huang
Title:	Chief Financial Officer

 

  

ANNEX A

 

Services and Fees Charged by Bit Digital

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEX B

 

Services and Fees Charged by WhiteFiber