TERMS AND CONDITIONS

1. Applicability. These standard terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Proloss ("Proloss") to the individual or entity on whose behalf Proloss is performing services ("Client") unless the parties have entered into a separate written agreement covering the applicable Services. The instruction confirmation (the "Instruction Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client's general terms and conditions. Provision of services to Client does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.

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2. Services. Proloss shall provide the services to Client as described in the Instruction Confirmation (the "Services") in accordance with these Terms.

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3. Term; Performance Dates. This Agreement shall take effect as of the Instruction Confirmation and shall continue in force until completion of the Services unless earlier terminated in accordance with Section 14. Proloss shall use reasonable efforts to meet any performance dates specified in the Instruction Confirmation, and any such dates shall be estimates only.

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4. Client's Obligations. Client shall:

• Cooperate with Proloss in all matters relating to the Services and provide such access to Client's premises, and such office accommodation and other facilities as may reasonably be requested by ProLoss, for the purposes of performing the Services.

• Respond promptly to any Proloss request to provide direction, information, approvals, authorisations, or decisions that are reasonably necessary for ProLoss to perform Services in accordance with the requirements of this Agreement.

• Provide such Client materials or information as Proloss may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects.

• Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.

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5. Client's Acts or Omissions.

If Proloss's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Proloss shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

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6. Change Orders.

If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Proloss shall, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement.

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7. Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Proloss in the course of performing the Services, including any Content, Reports and/or items identified as such in the Instruction Confirmation (collectively, the "Deliverables") except for any Confidential Information of Client or Client materials shall be owned by Proloss. Proloss hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

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8. Confidential Information. 

All non-public, confidential, or proprietary information of Proloss, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to clients, pricing, and marketing (collectively, "Confidential Information"), disclosed by Proloss to the Client, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential and shall not be disclosed or copied by the Client without the prior written consent of Proloss. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the Client at the time of disclosure; or (iii) rightfully obtained by the Client on a non-confidential basis from a third party.

 

The Client agrees to use the Confidential Information only to make use of the Services and Deliverables.

Proloss shall be entitled to injunctive relief for any violation of this Section.

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9. Representation and Warranty

a. Proloss represents and warrants to the Client that it shall perform the Services utilising personnel with the requisite skill, experience, and qualifications, conducting operations in a professional and workmanlike manner in accordance with the generally recognised industry standards for similar services. Proloss shall devote adequate resources to fulfill its obligations under this Agreement.

b. Proloss shall not be held liable for any breach of the warranty stated in Section 11(a) unless the Client provides written notice of defective Services, reasonably described, to ProLoss within twenty (20) days of the time when the Client discovers or ought to have discovered the Services' defect.

c. Subject to Section 11(b), Proloss shall, at its sole discretion, take either of the following actions: (i) rectify or re-perform the Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.

d. The remedies outlined above shall constitute the Client's sole and exclusive remedy and ProLoss's entire liability for any breach of the limited warranty as stated in Section 11(a).

e. The Client warrants that: (i) all information disclosed or to be disclosed by the Client necessary for the provision of the Services by ProLoss is, or shall to the best of its knowledge and belief, be true, accurate, and not misleading in any material respect; and (ii) its provision of materials to ProLoss concerning the Services shall not infringe or violate any Intellectual Property Rights, Confidential Information, and/or any contractual, employment, or property rights, duties of non-disclosure, or other rights of third parties.

f. Each party warrants that it has full capacity and authority to enter into this Agreement.

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10. Disclaimers; Indemnity

a. Content and Reports: The Services and the information, findings, and recommendations ("Content") contained in any reports and/or other communications, written or otherwise, in draft or final form, provided by Proloss ("Report(s)") are intended solely for the information and use of the Client. The Client may not rely on any verbal statements or Reports (that are not confirmed by Proloss in writing) or draft written Reports. The Client shall not disclose Report(s), or any Content therein, to third parties except as otherwise explicitly permitted herein. The Client is responsible for determining whether the Reports, or any Content therein, satisfy legal, regulatory, or contractual requirements applicable to the Client. The Client acknowledges and agrees that the Client has the ultimate responsibility for all management decisions relating to the Services and Deliverables. Proloss will not be liable or responsible to any third party who benefits from or uses the Services or gains access to the Deliverables provided by Proloss. The Client agrees to indemnify Proloss from and against all liabilities, losses, damages, costs, and expenses Proloss incurs in connection with any claims against ProLoss resulting from a breach by the Client of the provisions of this Section or from any claim by any third party against Proloss arising from or relating to the Services or Deliverables.

b. Disclaimer of Warranties: Except as otherwise explicitly agreed herein, Proloss makes no warranty whatsoever with respect to the services, including any:

(i) warranty of merchantability; or

(ii) warranty of fitness for a particular purpose; or

(iii) warranty of title; or

(iv) warranty against infringement of intellectual property rights of a third party;

whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.

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11. Assignment

Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Proloss. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.

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12. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

13. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

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14. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Instruction Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognised overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. Proloss may provide notice of changes to these standard terms and conditions for services via email to Client's primary contact on file with Proloss and by posting such changes on this Website.

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15. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

16. Survival

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Limitations of Liability, and Survival.

 

17. Amendment and Modification 

Unless otherwise explicitly agreed to by the parties, this Agreement may be amended by Adjusteck from time to time upon notice to Client.

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Last Modified: 21 March 2024.