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Terms of Use and Confidentiality Agreement

The Prospex Platform is a product built by Prospex Group Pty Ltd (“Prospex,” “we,” “us,” or “our”). Prospex is a software development company. Our software is powering a revolution in commerce and finance and helping to fund mining companies through the issue of digital royalties. Prospex hosts a website, www.prospexgroup.com.au, that serves information regarding Prospex and our products, royalties and services (collectively, the “Offerings”), as well as sub-domains for our products or services (the top level domain with the sub-domains collectively referred to as the “Site”), which include text, images, audio, code and other materials or third party information.

These Terms of Use and Confidentiality obligations, including any appendix (the “Terms,” “Terms of Use” or “Agreement”) contain the terms and conditions that govern your access to and use of the Site and Offerings provided by us and is an agreement between us and you or the entity you represent (“you” or “your” or “user”). Please read these Terms of Use carefully, including your Confidentiality obligations, before using the Site or Offerings. By using the Site, clicking a button or checkbox to accept or agree to these Terms where that option is made available, clicking a button to use or access any of the Offerings, completing an Order, or, if earlier, using or otherwise accessing the Offerings (the date on which any of the events listed above occur being the “Effective Date”), you (1) accept and agree to these Terms and any additional terms that apply to certain Additional Offerings (as defined below), rules and conditions of participation issued by Prospex from time to time and (2) consent to the collection, use, disclosure and other handling of information as described in our Privacy Policy. If you do not agree to the Terms or perform any and all obligations you accept under the Terms, then you may not access or use the Offerings.

You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 13 for definitions of certain capitalized terms used in this Agreement. In addition, you represent to us that you are (1) not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (i.e., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, the United Kingdom, or other applicable government authority and (2) not located in any country subject to a comprehensive sanctions program implemented by the United States.

Important — Confidential Information and Non-Disclosure

Definition of Confidential Information

For the purposes of these terms, “Confidential Information” means any non-public information, data, documents, communications, or materials whether disclosed or made available:

  • (a) on, through, or in connection with this Site; or
  • (b) through any related data room, portal, or electronic system.

Without limitation, Confidential Information includes:

  • (i) financial statements, forecasts, models, valuations, and management accounts;
  • (ii) strategic, commercial, legal, or technical information relating to operations, transactions, projects, or investments;
  • (iii) presentations, proposals, business plans, memoranda, term sheets, contracts, or due diligence materials;
  • (iv) shareholder information, board papers, and corporate records; and
  • (v) any information identified or reasonably understood by a prudent person to be confidential or proprietary in nature.

Confidential Information does not include information that:

  • (a) is or becomes public through no fault, act, or omission of the user;
  • (b) is lawfully obtained by the user from an independent third party without breach of any obligation of confidence; or
  • (c) is independently developed by the user without reference to the Confidential Information.

Purpose of Access

The user acknowledges that access to the Site and its content is granted solely for considering and purchasing Offerings and using the Prospex Platform.

The user must not use the Confidential Information for any other purpose, including for competitive, commercial, or regulatory advantage, or for any personal or third-party benefit.

Obligations of Confidence

The user must:

  • (a) maintain the Confidential Information in strict confidence and safeguard it with the same degree of care as it uses to protect its own confidential information (and at least reasonable care);
  • (b) not copy, reproduce, download, transmit, disclose, or distribute any Confidential Information, in whole or in part, without the our prior written consent;
  • (c) restrict access to the Confidential Information only to those of its officers, employees, or professional advisers who have a legitimate need to know and who are bound by equivalent confidentiality obligations; and
  • (d) ensure that all such persons comply with these obligations as if they were the user.

Prohibited Conduct

The user must not:

  • (a) share login credentials or permit any unauthorised person to access the Site;
  • (b) reverse-engineer, scrape, or extract data from the Site or attempt to circumvent security features;
  • (c) make any record, note, or summary of the Confidential Information for personal retention; or
  • (d) use the Confidential Information to contact, solicit, or deal directly with any stakeholder, counterparty, or employee of ours without written consent.

Compelled Disclosure

If the user is required by law, subpoena, or regulatory authority to disclose any Confidential Information, the user must (to the extent legally permissible):

  • (a) immediately notify us of the requirement;
  • (b) provide reasonable assistance for us to seek a protective order or confidentiality direction; and
  • (c) disclose only the portion of Confidential Information that is legally required, while continuing to protect all remaining information.

Return and Destruction

Upon termination of access, completion of review, or upon written request by us, the user must promptly:

  • (a) delete, destroy, or return (as directed) all Confidential Information and copies thereof; and
  • (b) certify in writing that such deletion or destruction has been completed.

Duration of Obligation

The obligations under this clause survive termination of Site access and continue indefinitely unless and until the Confidential Information lawfully becomes public.

Ownership and Intellectual Property

All Confidential Information remains the exclusive property of us or its related bodies corporate or the discloser of that Confidential Information, as applicable.

No licence, right, or interest in any Confidential Information, trade mark, or intellectual property is granted or implied by virtue of access to the Site.

Breach and Remedies

The user acknowledges that any unauthorised disclosure or use of Confidential Information may cause irreparable harm to us.

We are entitled to seek injunctive relief, specific performance, or other equitable remedies (in addition to damages or other legal relief) to prevent or remedy any breach or threatened breach of these obligations.

Acknowledgment

By accepting these terms and accessing or continuing to use the Site, the user acknowledges and agrees that:

  • (a) it has read, understood, and accepted these confidentiality and non-disclosure obligations;
  • (b) it will comply with them fully and procure compliance by any authorised representative; and
  • (c) we may suspend or terminate access immediately in the event of breach or suspected breach.

1. Offerings

1.1 Generally. You may access and use the Offerings only in accordance with this Agreement. You agree to comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Offerings.

1.2 Offerings and Access. Prospex offers a number of Offerings under the Prospex brand or by third parties. Offerings are generally accessed through the Site unless otherwise agreed in writing. Offerings may require you to create an account with Prospex, enter a valid form of payment, select products or royalties to purchase, or initiate an Order.

1.3 Third-Party Content and Services.In certain Offerings, you may view, have access to, and may use the informational content, products, or services of one or more third parties (“Third Party Content” and “Third Party Services” respectively). In each such case, you agree that you view, access or use such content and services at your own election. Your reliance on any Third Party Content and use of Third Party Services in connection with the Offerings is governed on one hand by this Agreement but, on the other, will also generally be subject to separate terms and conditions set forth by the applicable third party content and/or service provider. Those terms and conditions may involve separate fees and charges or may include disclaimers or risk warnings about reliance on or the accuracy of any information. Such terms may also apply a privacy policy different than that which Prospex maintains and incorporates into this Agreement. It is your responsibility to understand the terms and conditions of Third Party Services, including how those service providers use any of your information under their privacy policies.

Third Party Content and Third Party Services are provided for your convenience only. We do not verify, curate, or control Third Party Content. We do not control Third Party Services. As a result, we do not guarantee, endorse, or recommend such content or services to any or all users of the Offerings, or the use of such content or services for any particular purpose. You access, rely upon or use any Third Party Content or Third Party Service at your own risk. Prospex disclaims all responsibility and liability for any Losses on account of your reliance upon or use of such content or services. We have no responsibility for Third Party Content that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable to you or under the law in your jurisdiction. The choice to rely on Third Party Content or to use a Third Party Service is your own, and you are solely responsible for ensuring that your reliance or use is in compliance with all applicable laws. Dealing or correspondence with any third party that provides such content or services is solely between you and that third party. We reserve the right to change, suspend, remove, disable, or impose access restrictions or limits on the use of any Third Party Service at any time without notice.

1.4 Support. You may seek or receive technical or product support, information, advice, or guidance from us regarding the Offerings, including via third party service provider, chat interface, or email. All support made available or provided by or on behalf of Prospex is believed to be reliable, but we do not make representations or warranties, express or implied, as to its accuracy, its completeness, or the results to be obtained. Such support is being provided for informational purposes only and, by accepting such support, you are representing that you have adequate skill and experience regarding the proper selection, use, and/or application of Offerings and use such Offerings at your own discretion and risk. With the exception of instances of gross negligence, you hold us harmless for any injury that may result from the support you receive from us. You are aware that our customer support efforts may be impersonated by malicious third parties, and you agree that we are not responsible for the actions of such impersonators. You further acknowledge that we will not offer support via SMS, WhatsApp, Telegram, WeChat, or Twitter DMs, and that we will never ask you for your private key, access to your email or OTP.

1.5 Licence to Use or Distribute Content. By creating, submitting, uploading, or otherwise providing any information, data, materials, media, communications, or Content on or through the Prospex Platform, the user grants to us a worldwide, non-exclusive, irrevocable, royalty-free, perpetual licence to use, host, reproduce, modify, publish, communicate, transmit, distribute, and display such Content, in any form and by any means, for the purposes of:

  • (a) operating, marketing, and administering the Prospex Platform and related services;
  • (b) facilitating investment transactions, token issuance, trading, custody, or royalty distribution; and
  • (c) complying with applicable legal, financial, or regulatory requirements.

1.6 Sharing with Third Parties. The User acknowledges and agrees that we may share or sublicense user Content to third parties, including but not limited to:

  • (a) Custodians, KYC/AML and identification providers, trustees, payment processors, and blockchain service providers engaged in facilitating investment, settlement, fiat conversion or royalty payments;
  • (b) Partner exchanges, liquidity providers, or data oracles supporting token pricing, valuation, or trading;
  • (c) Professional advisers, auditors, and compliance partners assisting with regulatory, taxation, or legal requirements; and
  • (d) Marketing, analytics, and technology partners supporting business operations and investor engagement.

1.7 Privacy. We will ensure that any third party to whom user Content is disclosed is subject to confidentiality, data security, and use restrictions consistent with the our Privacy Policy and applicable law, including the Privacy Act 1988 (Cth). Content that includes personal information will be shared only to the extent reasonably necessary for the permitted purposes under this clause.

1.8 User Warranties. User represents and warrants that:

  • (a) they have all necessary rights, licences, and consents to provide the user Content and grant the above rights; and
  • (b) the user Content does not infringe the rights (including intellectual property, privacy, or confidentiality rights) of any other person.

1.9 Perpetual Use. The user grants us a perpetual, irrevocable, worldwide, royalty-free licence to use, reproduce, modify, publish, distribute, and communicate any content, data, or materials the user provides through the Prospex Platform for any lawful purpose connected with the operation, promotion, or development of the Prospex Platform, including sharing such content with third-party service providers and partners as required.

2. Changes

2.1 To the Offerings. We may change or discontinue any or all of the Offerings or change or remove functionality of any or all of the Offerings from time to time. We will use commercially reasonable efforts to communicate to you any discontinuation of an Offering through the Site or public communication channels. We will use commercially reasonable efforts to communicate to you any discontinuation of the Offering at least 30 days in advance of such discontinuation, and we will use commercially reasonable efforts to continue supporting the Offering for up to three months after the discontinuation, except if doing so (a) would pose an information security or intellectual property issue, (b) is economically or technically burdensome, or (c) would create undue risk of us violating the law.

2.2 To this Agreement. We reserve the right, at our sole discretion, to modify or replace any part of this Agreement or any Policies at any time. It is your responsibility to check this Agreement periodically for changes, but we will also use commercially reasonable efforts to communicate any material changes to this Agreement through the Site, email (if you have an account), or public channels. You agree that your continued use of or access to the Offerings following the posting of any changes to this Agreement constitutes acceptance of those changes, whether or not you were checking for changes or actually read the changes.

3. Your Responsibilities

3.1 Use of the Offerings. For any Offerings, whether they require that you set up an account with Prospex or they do not, and except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur with respect to your use of the Offerings, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or other End Users), and (b) we and our affiliates are not responsible for unauthorized access to the Offerings or your account, including any access that occurred as a result of fraud, phishing, or other criminal activity perpetrated against you by third parties. You will ensure that your use of the Offerings does not violate any applicable law.

3.2 Your Security and Backup.You are solely responsible for properly configuring and using the Offerings and otherwise taking appropriate action to secure, protect, and backup your accounts and/or Your Content in a manner that will provide appropriate security and protection, which might include use of encryption. If you are not able to be responsible for your own account security, or do not want such an obligation, then you should not use the Offerings. Your obligations under this Agreement include ensuring any available software updates or upgrades to an Offering you are using are promptly installed or implemented, and recording and securely maintaining any passwords or secret recovery phrases that relate to your use of the Offerings. You acknowledge that certain methods of securing your access to your account, such as storing it as a digital file anywhere, including on your personal device or on a cloud storage provider, increase the risk that your account will be compromised. You further acknowledge that you will not share with us nor any other third party any password or mechanism that relates to your use of the Offerings, and that we will not be held responsible if you do share any such password or method, whether you do so knowingly or unknowingly. For the avoidance of doubt, we take no responsibility whatsoever for any theft of a password that involved intrusion through any means into your personal device or a cloud provider’s data repository.

3.3 Log-In Credentials and API Authentication. To the extent we provide you with log-in credentials and API authentication generated by the Offerings, such log-in credentials and API authentication are for your use only and you will not sell, transfer, or sublicense them to any other entity or person, except that you may disclose your password or private key to your agents and subcontractors performing work on your behalf.

3.4 Applicability to Offerings that facilitate access to addresses on blockchain protocols. For the avoidance of doubt, the terms of this Section 3 are applicable to all Offerings. You are solely responsible for the use and security of your account and we will not be held responsible if you share any passwords with anyone else, whether knowingly or unknowingly.

4. Fees and Payment

4.1 Publicly Available Offerings. Fees are payable on Offerings. These terms apply to all Offerings.

4.2 Offering Fees. Fees are charged contemporaneously with your use of the Offering, those fees will be charged as described on the Site or in the user interface of the Offering.

As at the date of this Agreement you agree that the following fees are payable by you which are able to be amended at our discretion:

  • (a) A raising fee — where you are a royalty holder seeking to use the Prospex Platform and sell your royalty you agree to pay to us 4% of the total purchase price received by you for that royalty;
  • (b) A distribution fee — where you are the holder of an Offering you agree that on any fund distribution received by you we may charge 2% of the total funds distributed;
  • (c) A transfer fee — on any transfer of a DFR a fee of 0.5% of the value paid over is payable to us and will be charged on the completion of any transfer.

Fees and charges for any new Offering or new feature of an Offering will be effective when we use commercially reasonable efforts to communicate updated fees and charges through our Site, the interface of the Offering itself, or other public channels.

We may alter or add new fees and charges for any existing Offerings you are using by using commercially reasonable efforts to notify users of the Offerings through our Site, the interface of the Offering itself or other public channels.

4.3 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive taxes unless otherwise noted. We reserve the right to withhold taxes where required.

5. Temporary Suspension; Limiting API Requests

5.1 Generally. We may suspend your right to access or use any portion or all of the Offerings immediately if we determine:

  • (a) your use of the Offerings (i) poses a security risk to the Offerings or any third party, (ii) could adversely impact our systems, the Offerings, or the systems of any other user, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be unlawful;
  • (b) you are, or any End User is, in breach of this Agreement;
  • (c) you are in breach of your payment obligations under Section 4 for 30 days or longer; or
  • (d) for entities, you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

5.2 Effect of Suspension. If we suspend your right to access or use any portion or all of an Offering:

  • (a) you remain responsible for all fees and charges you incur during the period of suspension; and
  • (b) you will not be entitled to any fee credits for any period of suspension.

5.3 Limiting API Requests.We retain sole discretion to limit your API requests (“API Requests”) submitted in conjunction with your use of an Offering at any time if your usage of the Offering exceeds the usage threshold determined by us or otherwise on the Site or user interface of the Offering. Further, excessive API requests, as determined by Prospex in our sole discretion, may result in the temporary or permanent suspension of your access to an account or to your use of the applicable Offering. Prospex is not required but will endeavor, when reasonable, to warn an account owner or user prior to suspension.

6. Term; Termination

6.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 6 or by separate written agreement. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 6.2.

6.2 Termination.

(a) Termination for Convenience.You may terminate this Agreement for any reason by ceasing use of the Offering or providing written notice to us. Prospex may terminate this Agreement for any reason after providing 30 calendar days’ written notice.

(b) Termination for Cause.

  • (i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of the other party’s notice of breach.
  • (ii) By Us. We may also terminate this Agreement for cause immediately (A) if we have the right to suspend under Section 5, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Offerings expires, terminates, or requires us to change the way we provide the software or other technology as part of the Offerings, or (C) in order to avoid undue risk of violating the law.

6.3 Effect of Termination. Upon the Termination Date:

  • (i) all your rights under this Agreement immediately terminate; and
  • (ii) each party remains responsible for all fees and charges it has incurred through the Termination Date and are responsible for any fees and charges it incurs during the post-termination period;
  • (iii) the terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favour they operate. For instance, should this Agreement between you and us terminate, any dispute raised after you stop accessing or using the Offerings will be subject to the applicable provisions of this Agreement if that dispute relates to your prior access or use.

For any use of the Offerings after the Termination Date, the terms of this Agreement will apply.

7. Proprietary Rights

7.1 Your Content. Depending on the Offering, you may share Content with us. Except as provided in this Section 7, we obtain no rights under this Agreement from you (or your licensors) to Your Content; however, you consent to our use of Your Content in any manner that is consistent with the purpose of your use of the Offerings or that otherwise facilitates providing the Offerings to you.

7.2 Offerings License. We or our licensors own all right, title, and interest in and to the Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following: (a) access and use the Offerings solely in accordance with this Agreement; and (b) copy and use Our Content solely in connection with your permitted use of the Offerings. Except as provided in this Section 7.2, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Offerings, including any related intellectual property rights. Some of Our Content and Third-Party Content may be provided to you under a separate license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to Our Content or Third-Party Content that is the subject of such separate license.

7.3 License Restrictions.Neither you nor any End User will use the Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Except for as authorized, neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Offerings (except to the extent Content included in the Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Offerings or apply any other process or procedure to derive the source code of any software included in the Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Offerings in a way intended to avoid incurring Fees, (d) use scraping techniques to mine or otherwise scrape data, or (e) resell or sublicense the Offerings unless otherwise agreed in writing. You will not use Our Marks unless you obtain our prior written consent. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavours). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.

7.4 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

8. Indemnification

8.1 General.

(a) You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any claim concerning: (a) breach of this Agreement or violation of applicable law by you; or (b) a dispute between you and any of your customers or users. You will reimburse us for reasonable attorneys’ fees and expenses, associated with claims described in (a) and (b) above.

(b) We will defend, indemnify, and hold harmless you and your employees, officers, directors, and representatives from and against any Losses arising out of or relating to any claim concerning our material and intentional breach of this Agreement. We will reimburse you for reasonable attorneys’ fees and expenses associated with the claims described in this paragraph. In no circumstances will our aggregate liability to you exceed the actual amount of Losses incurred and you expressly agree that we are not liable for any consequential loss whatsoever.

8.2 Intellectual Property.

(a) You will defend Prospex, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and you will pay the amount of any adverse final judgment or settlement.

(b) Subject to the limitations in this Section 8 and the limitations in Section 10, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Offerings infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. However, we will not be required to spend more than $50,000 pursuant to this Section 8, including without limitation attorneys’ fees, court costs, settlements, judgments, and reimbursement costs.

(c) Neither party will have obligations or liability under this Section 8.2 arising from infringement by you combining the Offerings with any other product, service, software, data, content or method. In addition, we will have no obligations or liability arising from your use of the Offerings after we have notified you to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Offerings or by Your Content.

8.3 Process. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of us.

9. Disclaimers; Risk

9.1 DISCLAIMER.THE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE OFFERINGS, THE THIRD PARTY CONTENT, OR THE THIRD PARTY SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE OFFERINGS, THIRD PARTY CONTENT, OR THIRD PARTY SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED AND ARE NOT RELYING UPON ANY REPRESENTATION OR WARRANTY FROM PROSPEX THAT IS NOT OTHERWISE IN THIS AGREEMENT OR IN A SEPARATE WRITTEN AGREEMENT BETWEEN US, AND YOU AGREE YOU WILL NOT TAKE A POSITION IN ANY PROCEEDING THAT IS INCONSISTENT WITH THIS PROVISION.

9.2 RISKS. OUR OFFERINGS RELY ON EMERGING TECHNOLOGIES, SUCH AS ETHEREUM. SOME OFFERINGS ARE SUBJECT TO INCREASED RISK THROUGH YOUR POTENTIAL MISUSE OF THINGS SUCH AS PUBLIC/PRIVATE KEY CRYPTOGRAPHY, OR FAILING TO PROPERLY UPDATE OR RUN SOFTWARE TO ACCOMMODATE PROTOCOL UPGRADES. BY USING THE OFFERINGS YOU EXPLICITLY ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. YOU REPRESENT THAT YOU ARE FINANCIALLY AND TECHNICALLY SOPHISTICATED ENOUGH TO UNDERSTAND THE INHERENT RISKS ASSOCIATED WITH USING CRYPTOGRAPHIC AND BLOCKCHAIN-BASED SYSTEMS AND UPGRADING YOUR SOFTWARE AND PROCESSES TO ACCOMMODATE OFFERING AND PROTOCOL UPGRADES, AND THAT YOU HAVE A WORKING KNOWLEDGE OF THE USAGE AND INTRICACIES OF DIGITAL ASSETS SUCH AS ETHER (ETH) AND OTHER DIGITAL TOKENS. IN PARTICULAR, YOU UNDERSTAND THAT WE DO NOT OPERATE THE ETHEREUM PROTOCOL OR ANY OTHER BLOCKCHAIN PROTOCOL, COMMUNICATE OR EXECUTE PROTOCOL UPGRADES, OR APPROVE OR PROCESS BLOCKCHAIN TRANSACTIONS ON BEHALF OF YOU. YOU FURTHER UNDERSTAND THAT BLOCKCHAIN PROTOCOLS PRESENT THEIR OWN RISKS OF USE, THAT SUPPORTING OR PARTICIPATING IN THE PROTOCOL MAY RESULT IN LOSSES IF YOUR PARTICIPATION VIOLATES CERTAIN PROTOCOL RULES, THAT BLOCKCHAIN-BASED TRANSACTIONS ARE IRREVERSIBLE, THAT YOUR OTP AND PASSWORD MUST BE KEPT SECRET AT ALL TIMES, THAT PROSPEX WILL NOT STORE A BACKUP OF, NOR WILL BE ABLE TO DISCOVER OR RECOVER, YOUR ACCOUNT, THAT DIGITALLY COPYING AND STORING YOUR ACCOUNT ON A CLOUD STORAGE SYSTEM OR OTHER THIRD PARTY SUPPORTED DATA STORAGE, INCLUDING YOUR PERSONAL DEVICE, MAY INCREASE THE RISK OF LOSS OR THEFT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY APPROVALS OR PERMISSIONS YOU PROVIDE BY SIGNING BLOCKCHAIN MESSAGES OR TRANSACTIONS, ESPECIALLY THOSE RESPONDING TO SOLICITATIONS AND OTHER PROMPTS FROM THIRD PARTIES. WITH RESPECT TO THIRD PARTIES, YOU ARE AWARE THAT SOCIAL ENGINEERING SCAMS LIKE PIG BUTCHERING PERPETRATED BY MALICIOUS THIRD PARTIES IS A RISK AND YOU AGREE THAT YOU AND YOU ALONE ARE RESPONSIBLE FOR TRANSACTIONS OR AGREEMENTS WITH SUCH THIRD PARTIES THAT MAY LEAD TO INJURY. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR VERIFYING THE LEGITIMACY OR SAFETY OR SUITABILITY OF ANY THIRD PARTY APPLICATIONS OR TOKENS THAT YOU MAY INTERACT WITH OR RECEIVE USING OUR OFFERINGS. YOU ARE AWARE THAT THERE ARE TECHNICAL MEASURES IN CERTAIN OFFERINGS THAT IMPROVE USER SAFETY, AND YOU ARE SOLELY RESPONSIBLE FOR UNDERSTANDING HOW THEY FUNCTION AND USING THEM AS APPROPRIATE.

YOU FURTHER UNDERSTAND AND ACCEPT THAT DIGITAL ASSETS PRESENT MARKET VOLATILITY RISK, TECHNICAL SOFTWARE RISKS, REGULATORY RISKS, AND CYBERSECURITY RISKS. YOU UNDERSTAND THAT THE COST AND SPEED OF A BLOCKCHAIN-BASED SYSTEM IS VARIABLE, THAT COST MAY INCREASE DRAMATICALLY AT ANY TIME, AND THAT COST AND SPEED IS NOT WITHIN THE CAPABILITY OF PROSPEX TO CONTROL. YOU UNDERSTAND THAT PROTOCOL UPGRADES MAY INADVERTENTLY CONTAIN BUGS OR SECURITY VULNERABILITIES THAT MAY RESULT IN LOSS OF FUNCTIONALITY AND ULTIMATELY FUNDS.

YOU UNDERSTAND AND ACCEPT THAT PROSPEX DOES NOT CONTROL ANY BLOCKCHAIN PROTOCOL, NOR DOES PROSPEX CONTROL ANY SMART CONTRACT THAT IS NOT OTHERWISE OFFERED BY PROSPEX AS PART OF THE OFFERINGS AND IS NOT ITSELF A THIRD PARTY SERVICE. YOU UNDERSTAND AND ACCEPT THAT PROSPEX DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE TRANSITION OF ANY BLOCKCHAIN PROTOCOL FROM PROOF OF WORK TO PROOF OF STAKE CONSENSUS OR THE FUNCTIONING OF ANY PROTOCOL AFTER IT UNDERGOES A TECHNICAL UPGRADE. YOU UNDERSTAND AND ACCEPT THAT PROSPEX DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY SERVICE. YOU AGREE THAT YOU ALONE, AND NOT PROSPEX, IS RESPONSIBLE FOR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH REGARD TO SUPPORTING ANY BLOCKCHAIN PROTOCOL WHETHER THROUGH TRANSACTION VALIDATION OR OTHERWISE, OR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH ANY THIRD-PARTY-DEVELOPED SMART CONTRACT OR TOKEN, INCLUDING TOKENS THAT WERE CREATED BY A THIRD PARTY FOR THE PURPOSE OF FRAUDULENTLY MISREPRESENTING AFFILIATION WITH ANY BLOCKCHAIN PROJECT. YOU AGREE THAT PROSPEX IS NOT RESPONSIBLE FOR THE REGULATORY STATUS OR TREATMENT IN ANY JURISDICTION OF ANY DIGITAL ASSETS THAT YOU MAY ACCESS OR TRANSACT WITH USING PROSPEX OFFERINGS. YOU EXPRESSLY ASSUME FULL RESPONSIBILITY FOR ALL OF THE RISKS OF ACCESSING AND USING THE OFFERINGS TO INTERACT WITH BLOCKCHAIN PROTOCOLS.

10. Limitation of Liability

10.1 Limitation of Amount. WITH THE EXCEPTION OF CLAIMS RELATING TO A BREACH OF OUR PROPRIETARY RIGHTS AS GOVERNED BY SECTION 7 AND INDEMNIFICATION AS GOVERNED BY SECTION 8, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT (REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM NEGLIGENCE OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE OFFERINGS GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, OR, IF NO FEES HAVE BEEN PAID, $25,000. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4. PROSPEX SHALL HAVE NO LIABILITY TO YOU WITH RESPECT TO ANY OFFERING EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE DETERMINED BY FINAL JUDGMENT OF A COURT OR ARBITRATOR.

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. Binding Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY — IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

11.1 Binding Arbitration.Any dispute, claim or controversy (“Claim”) relating in any way to this Agreement, the Site, or your use of the Offerings will be resolved by binding arbitration as provided in this Section 11, rather than in court, except that you may assert claims in small claims court if your claims qualify.

This Agreement and any Claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Western Australia. Any Claim relating in any way to this Agreement, the Offerings, your use of the Offerings, or to any products or services licensed or distributed by us will be resolved by binding arbitration as provided in this clause. Prior to commencing any formal arbitration proceedings, parties shall first seek settlement of any claim by mediation in accordance with the LCIA Mediation Rules, which Rules are deemed to be incorporated by reference into this clause. If the dispute is not settled by mediation within 14 days of the commencement of the mediation, or such further period as the parties shall agree in writing, shall be referred to the Singapore International Arbitration Centre (“SIAC”) and finally be resolved by arbitration under the SIAC Arbitration Rules in force on the date of the submission of the request for arbitration (the “Rules”), which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators, to be appointed in accordance with the Rules shall be one. The legal seat of the arbitration shall be Singapore and the language of the arbitration shall be English.

11.2 Class Action Waiver.YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. Unless both you and we agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

11.3 30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the email support@prospexgroup.com.au with subject line LEGAL OPT OUT. The notice must be sent within 30 days of your first use of the Offerings, otherwise you shall be bound to arbitrate disputes and will be deemed to have agreed to waive any right to pursue a class action in accordance with the terms of those paragraphs. If you opt-out of these provisions, we will also not be bound by them.

12. Miscellaneous

12.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 12.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for us as a party to this Agreement and we are fully released from all of our obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

12.2 DAOs. As a blockchain native company, we may interact with and provide certain Offerings to DAOs. Due to the unique nature of DAOs, to the extent the DAO votes in favor of and/or accepts such Offerings from Prospex, the DAO has acknowledged and agreed to these Terms in their entirety.

12.3 Entire Agreement and Modifications. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control. Any modification to the terms of this Agreement may only be made in writing.

12.4 Force Majeure.Neither party nor their respective affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, utilities or other telecommunications failures, cyber attacks, earthquake, storms or other elements of nature, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.5 Export and Sanctions Compliance. In connection with this Agreement, you will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that prohibit certain transactions. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Offerings. You may not use any Offering if you are the subject of U.S. or Australian sanctions or of sanctions consistent with law imposed by the governments of the country where you are using the Offering.

12.6 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

12.7 Eligibility. If you are under the age of majority in your jurisdiction of residence, you may not use the Site or Offerings.

12.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

12.9 Notice.

(a) To You. We may provide any notice to you under this Agreement using commercially reasonable means, including: (i) posting a notice on the Site; (ii) sending a message to the email address then associated with your account; (iii) posting the notice in the interface of the applicable Offering; or (iv) using public communication channels. Notices we provide by posting on the Site or using public communication channels will be effective upon posting, and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current to the extent you have an account. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact us by email support@prospexgroup.com.au.

12.10 No Third-Party Beneficiaries. Except as otherwise set forth herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

12.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

12.12 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

12.13 Notice and Procedure for Making Claims of Copyright Infringement. If you are a copyright owner or agent of the owner, and you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide us a written notice at the address below with the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located with respect to the Offerings;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

You can reach us at:

Email: support@prospexgroup.com.au.

12.14 Device and Usage Information. We may collect information about your computer, including where available your IP address, operating system, and browser type. We use this information for system administration, platform security, analytics, and to determine your approximate location. Your IP address may be associated with a pseudonymous analytics profile. We do not use your IP address for third party direct marketing.

13. Definitions

“Acceptable Use Policy” means the policy set forth below, as it may be updated by us from time to time. You agree not to, and not to allow third parties to, use the Offerings:

  • to violate, or encourage the violation of, the legal rights of others;
  • to engage in, promote or encourage any illegal or infringing content;
  • for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
  • to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
  • to interfere with the use of the Offerings, or the equipment used to provide the Offerings, by customers, authorized resellers, or other authorized users;
  • to disable, interfere with or circumvent any aspect of the Offerings (for example, any thresholds or limits);
  • to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertising or other solicitation; or
  • to use the Offerings, or any interfaces provided with the Offerings, to access any other product or service in a manner that violates the terms of service of such other product or service.

“API” means an application program interface.

“API Requests” has the meaning set forth in Section 5.3.

“Applicable Threshold” has the meaning set forth in Section 4.2.

“Base Fees” has the meaning set forth in Section 4.2.

“Content” means any personal information, identity, data, text, audio, video or images, software (including machine images), and any documentation.

“DAO” means Decentralized Autonomous Organization.

“Digital Assets” means any digital asset (including virtual currency or virtual commodity) which is a digital representation of value based on (or built on top of) a cryptographic protocol of a computer network.

“DFR” means digital syndicated royalties which represent interests in royalties and are recorded on a blockchain.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Offerings under your account.

“Fees” has the meaning set forth in Section 4.

“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).

“Our Content” means any software (including machine images), data, text, audio, video, images, or documentation that we offer in connection with the Offerings.

“Our Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Prospex and their affiliates or licensors that we may make available to you in connection with this Agreement.

“Order” means an order for Offerings executed through the Prospex Platform.

“Offerings” means each of the products and services, features, tools, materials, or services offered from time to time, by us or our affiliates, including DFRs.

“Policies” means the Acceptable Use Policy, Privacy Policy, any supplemental policies or addendums applicable to any Service as provided to you, and any other policy or terms referenced in or incorporated into this Agreement, each as may be updated by us from time to time.

“Privacy Policy” means the privacy policy located at www.prospexgroup.com.au/privacy (and any successor or related locations designated by us), as it may be updated by us from time to time.

“Prospex Platform” means all of the Offerings and other services provided by Prospex that allows users to access the Offerings, including the Site and any other products or Services offered by Prospex from time to time.

“Service Offerings” means the Services (including associated APIs), Our Content, Our Marks, and any other product or service provided by us under this Agreement. Service Offerings do not include Third-Party Content or Third-Party Services.

“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.

“Supported Digital Assets” means only those particular Digital Assets listed as available to interact with or self-custody in your MetaMask wallet. Services and supported assets may vary by jurisdiction.

“Term” means the term of this Agreement described in Section 6.1.

“Termination Date” means the effective date of termination provided in accordance with Section 6, in a notice from one party to the other.

“Third-Party Content” means Content made available to you by any third party on the Site or in conjunction with the Offerings.

“Your Content” means content that you or any End User transfers to us for storage or hosting by the Offerings and any computational results that you or any End User derive from the foregoing through your use of the Offerings, excluding however any information submitted to a blockchain protocol for processing.