Gym Box Enterprises, LLC

Application and Interpretation

1.1 These Terms & Conditions are applicable to all Engagements.

1.2 We shall perform the Engagement with due observance of the applicable professional rules and regulations and national and international legislation and regulations.

1.3 In these Terms & Conditions:

“Cloud services” means services via the internet whereby the firm uses software, hardware, and storage space of third parties and/or makes personal data available to suppliers of this software, hardware, and storage space.

“You” or the “client” means the party for whom the Engagement is performed.

“We” or “us” or the “firm” means one or more of the following legal entities to whom the Engagement is issued: Gym Box Enterprises LLC “Engagement” means the oral or written agreement in which we undertake to provide services to you.

Inception of the Engagement

2.1 Request by the client constitutes an offer by the client to engage the firm for services subject to these Terms and Conditions.

2.2 If the firm accepts the request by the client and a binding contract for services subject to these terms and conditions, shall exist by when is the earlier of: –

a)we have received the written agreement regarding the Engagement duly signed by you and us; or
b)we have started performing the Engagement at your request.

2.3 At our first request you shall provide all information and documentation that we need in order to comply with laws on the prevention of money laundering and terrorist financing. We reserve the right to assess whether the identification and verification are in accordance with the above laws.

Your Obligations

3.1 If an Engagement requires your cooperation, you shall provide us with all information and documents that we require for proper and timely execution of the Engagement and you shall do so on time and in the form and manner that we require.

3.2 You shall inform us without delay of the legal and control structure of the group to which you belong, and of any changes therein, as well as of all other financial and other alliances in which you participate or to which you belong, all in the broadest sense of the word, and also of any other facts and circumstances that may be relevant to the execution of the Engagement to enable us to meet the applicable independence rules.

3.3 You alone shall bear the responsibility for determining the scope of the Engagement and for taking decisions (partially) based on, or in connection with, our services.

3.4 We shall perform the Engagement based on the financial and other information provided to us in respect of the Engagement, including any meetings that we hold with you or, at your request, with third parties. You undertake to ensure that the information you provide is correct and complete. You hereby agree that if we receive information from third parties in respect of the Engagement, we can assume, without any need for further verification, that this information is correct and complete.

3.5 Any additional costs and damage or loss caused by a delay in the execution of the Engagement resulting from failure to make the requested information, facilities, and/or staff available, or failure to do so on time or in the proper form, shall be for your account and risk.

3.6 In the case of Engagements that we perform at your premises, you shall ensure the provision of such office space and means of electronic communications that we consider necessary or useful for performing the Engagement and that comply with all statutory and other requirements.

Execution of the Engagement

4.1 We shall provide all services to the best of our knowledge and ability, and in accordance with professional standards. We shall be bound by a best efforts obligation in relation to the (intended) services.

4.2 We shall determine how the Engagement will be executed and by whom, except in situations in which the Engagement is explicitly intended to be performed by a specific natural person.

4.3 We may provide, and charge you for, any additional services if the need for such services arises by virtue of any national or international legislation and regulations, including professional rules and regulations, applying to the Engagement.

4.4 Information provided to us by you shall be returned to you, at your request, after completion of the Engagement. We shall keep our own (electronic) working files on the Engagement, containing copies of in our opinion relevant documents, which shall remain our property.

4.5 Our administration (including e-mails and digital scans of engagement letters for example) serves as full evidence for you, except where you provide evidence to the contrary.

4.6 During the execution of the Engagement, we shall not be deemed to have access to information originating from any other Engagements that have been or are being performed for you.

Confidentiality And Data Protection

5. When undertaking our work we act in accordance with the local data protection laws.

5.1 Unless (i) we are required under any provision in the applicable national or international legislation and regulations, including professional rules and regulations, to disclose information, or (ii) we or persons affiliated with or working for us act in any disciplinary, civil, administrative or criminal proceedings in which this information may be of importance, we and the person(s) assigned by us shall neither disclose confidential information and personal data nor provide such information to third parties, other than those referred to in this clause.

5.2 You agree, within the scope of (i) an Engagement commissioned by you to us, (ii) compliance with statutory obligations to which we are subject, (iii) risk management and quality review requirements, and (iv) internal business purposes, that we shall process confidential information and personal data concerning you and/or persons (formerly) working for, or affiliated with, you, your clients or third parties, including sharing this information with the following on a need to know basis:

the firm’s teams other than those involved in the performance of the Engagement;
parties involved in the execution of the Engagement;
subcontractors and IT service providers;
third parties experts to supplement our services; or
our insurers, or legal or financial advisers.

5.3 You agree that we may use (confidential) information and personal data provided by or on behalf of you – provided it is anonymous and that identity cannot be derived from it –within the framework of, amongst other things, compiling and maintaining best practices, statistics, research purposes and/or benchmarking.

5.4 For the purposes described in this clause 5, we may transmit personal data to countries outside of the Georgia if the recipient is deemed to offer a sufficient level of protection based on the data protection law.

5.5 We shall take appropriate measures in order to protect the confidential information and personal data and shall inform any third parties and employees that we engage of the confidential nature of the information.

5.6 We shall process personal data in accordance with the applicable national or international legislation and regulations, including professional rules and regulations, in the field of protection of personal data.

5.7 Except where any national or international legislation or regulations, including professional rules and regulations, require you to disclose information, or except where we have given our prior written consent, you shall not disclose, or provide to third parties, any information concerning the Engagement, the content of reports, opinions or any other written or oral statements issued by us.

5.8 The parties shall impose their obligations under this clause on any third parties that they engage.

5.9 We shall have the right to mention your name and sketch a broad outline of the services provided to potential and existing clients as an illustration of our experience.

5.10 To support our business operation we have the right to use Cloud services.

Intellectual Property

6.1 We reserve all intellectual property rights in relation to products of the intellect that we use or have used and/or develop or have developed within the framework of the execution of the Engagement in respect of which we hold or can exercise copyrights or other intellectual property rights.

6.2 You are explicitly prohibited from reproducing, publishing or using for commercial purposes, whether alone or involving third parties, those products, including computer programs, systems designs, working methods, opinions, contracts and model contracts, brands and logos and our other products of the intellect, all in the broadest sense of the word. These products may not be reproduced and/or published and/or used for commercial purposes without our prior written consent. You have the right to reproduce the written documents for your own internal use insofar as this is in line with the purpose of the Engagement. This provision shall apply mutatis mutandis if the Engagement is terminated early.

Fees

7.1 Our fee shall be exclusive of our out-of-pocket expenses, exclusive of any fees charged by third parties engaged by us and exclusive of any sales tax, VAT or other levies that are or may be imposed by government authorities (which shall be payable by the client). We shall charge the costs of any such out-of-pocket expenses, third-party fees, taxes and levies to you.

7.2 If any pricing factors, such as salaries and/or rates, are subject to change between the inception date and completion date of the Engagement, we shall have the right to adjust the previously agreed fee accordingly. However, no increase in the capped fee may be made if a maximum fee has been quoted without the prior consent of the client in writing.

7.3 Payment of our fee is due, without any deduction, discount or debt settlement, within 0 days of the invoice date. Payments, denominated in the currency indicated in the invoice, shall be remitted to a bank account designated by us.

7.4 Disputes or objections to any amounts charged shall not suspend your obligation to pay.

7.5 All judicial and extrajudicial (collection) costs that we incur in connection with your failure to comply with your (payment) obligations shall be for your account. We reserve the right to demand reimbursement of the costs actually incurred.

7.6 If we believe that your financial position and/or payment performance justifies such action, we have the right to demand that you immediately furnish security or additional security in a form to be determined by us and/or make an advance payment. If you fail to furnish the desired security or make the desired advance payment, we have the right, without prejudice to our other rights, to immediately suspend any further execution of the Engagement, and all amounts you owe us, for whatever reason, shall become immediately due and payable.

7.7 In the event of a jointly commissioned Engagement, all clients are jointly and severally liable for payment of the full fee charged insofar as the services were provided for the clients jointly.

Complaints / Disputes on Fee

8.1 We must be notified in writing and within 60 days of the date of dispatch of documents or information in respect of which you are filing a complaint, subject to the risk of forfeiture, of any complaints relating to the services provided and/ or disputing the invoice amount or, if you prove that you could not have reasonably discovered that mistake, defect or error or shortcoming earlier, within 60 days of the discovery of the mistake, defect or error.

8.2 Complaints as referred to above shall not suspend your obligation to pay. Under no circumstance shall you be entitled, by virtue of a complaint in respect of a certain service, to defer or refuse payment for other services provided by us to which the complaint does not relate.

8.3 If you filed a legitimate and timely complaint, you shall have the choice between us adjusting the fee charged, having the rejected service rectified or redone free of charge, or terminating the Engagement (or remaining services) in exchange for a refund proportionate to the fee already paid by you.

Delivery Period

9.1 If you are required to make an advance payment or to make information and/or materials available that is/are required for execution of the Engagement, the term for completing the services will not start until we have received the payment in full or until all information and/or materials have been made available to us respectively.

9.2 The due dates for completion of the services shall be regarded as strict deadlines only if this has been agreed in writing in advance. Otherwise, time is not of the essence except for payment.

9.3 You shall not terminate the Engagement on account of us failing to meet a deadline, unless we do not perform the Engagement, either partially or in full, within a reasonable period of which we have been notified in writing after expiry of the agreed delivery period.

Termination

10.1 We have the right to terminate the Engagement in writing, with due observance of a reasonable notice period. If we terminate the Engagement early, you are entitled to our assistance in transferring work to third parties, unless the termination was due to facts and circumstances that can be attributed to you.

10.2 You shall be entitled to terminate the Engagement early, provided that we shall be entitled to compensation for services already provided and for any costs that we reasonably have to incur as a result of the early termination of the Engagement (including costs relating to subcontracting).

10.3 Either party shall be entitled to terminate the Engagement by giving notice to the other party at any time if:-

the other party makes any voluntary arrangement with its creditors, becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction; or
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the other party; or
the other party ceases or threatens to cease, to carry on business; or
one can reasonably apprehend that any of the events mentioned above is about to occur in relation to the other party and notifies the other party accordingly.

10.4 The expiration or termination of Engagement shall be without prejudice to the accrued rights of the parties and any provision hereof which relates to or governs the acts of the parties hereto subsequent to such expiry or termination hereof shall remain in full force and effect and shall be enforceable notwithstanding such expiry or termination. These Terms and Conditions remain in effect after termination of the Engagement and shall continue to bind the parties.

Liability

11.1 We shall provide our Services to the best of our ability and exercise the due care that may be expected of us. If errors are made as a result of the provision to us of incorrect or incomplete information by you or a third party, we shall not be liable for any consequential damage. Our total liability to you for any errors that would have been prevented if we had exercised due care, is limited to a maximum of MAXIMUM times the fee paid and/or owed by you for the specific services provided under the Engagement from which the errors resulted. If the Engagement has a term of more than twelve months, the total liability within the scope of the Engagement shall be limited to a maximum of MAXIMUM times the fee paid by you and/or owed by you for the most recent twelve months for the specific services provided under the Engagement from which the errors resulted. This limitation of liability shall not apply if it is related to an intentional act or willful recklessness on our part and/or unless any mandatory national or international legislation or regulation, including professional rules and regulations, dictates otherwise.

11.2 If the Engagement is carried out for more than one (legal) entity/person, the limitation of liability with respect to the Engagement shall apply to all these (legal) entities/persons jointly. In the event of liability, it is up to this group of (legal) entities/persons to share the maximum amount of damages awarded among themselves.

11.3 You shall indemnify us and hold us harmless against any claims by third parties that may arise as a result of any failure on your part to comply or to comply properly with any obligation arising from the Engagement and/or these Terms & Conditions, unless you demonstrate that the losses do not relate to imputable acts or omissions on your part, or were caused by an intentional act or willful recklessness on our part, and unless any mandatory national or international legislation or regulation, including professional rules or regulations, dictates otherwise. This indemnification shall not apply to Engagements for the statutory audit of financial statements. This indemnification shall apply also in respect of any shareholders, directors of shareholders, managing directors or employees of us or third parties, including other firms, whom we engage for the performance of the Engagement, who shall accordingly be able to invoke this indemnification directly.

11.4 You and/or your group companies shall exercise any rights of action or recourse exclusively against us, and not against our shareholders, directors of our shareholders, managing directors or employees engaged by us.

11.5 We shall not be held liable for any consequential, indirect or punitive damages and/or loss of profit.

11.6 We reserve the right to engage (some of) the services of another contractor when performing the Engagement. The Engagement shall be executed under our exclusive responsibility and you and/or your group companies shall not bring any claim (whether in contract, tort or otherwise) against any other contractor, partner or employee of another contractor in connection with the performance of the Engagement. The other contractor, their partners and employees shall have the right to rely on the foregoing as if they were parties to the Engagement. We are entitled to compensation of damage, loss and costs resulting from any violation of this provision.

11.7 Your rights of action and other powers of whatever nature with respect to Us arising from the Engagement in any way, shall lapse after one year from the date on which the damage or loss for which we are held liable first manifested itself and in any event after five years from the date on which the event causing the damage or loss occurred.

Assignment

12. You shall not be permitted to assign the Engagement or any obligation laid down in it to third parties without our prior written consent. We shall be entitled to attach such reasonable conditions as we think fit to our consent. You undertake in any case to impose on the third party all relevant payment and other obligations laid down in the Engagement and these Terms & Conditions. In addition to the third party, you shall continue to be jointly and severally liable for the obligations laid down in the Engagement and these Terms & Conditions.

Force Majeure

13.1 In the event that we are prevented from fulfilling its obligations under the Engagement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout, we shall not be deemed to be in breach of our obligations. We will immediately give notice of this to you and must take all reasonable steps to resume performance of its obligations.

13.2 If and when the period of such incapacity exceeds 6 months then this Engagement shall automatically be terminated unless the parties first agree otherwise in writing.

Communications

14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax or sent by electronic mail:

a) (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Seller set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.

14.2 Communications shall be deemed to have been received:

a) if sent by pre-paid first-class post, two Business Days after posting (exclusive of the day of posting); or
b) if delivered by hand, on the day of delivery; or
c) if sent by fax or electronic mail on a Business Day prior to 5.00 pm, at the time of receipt and otherwise on the next Business Day.

14.3 Communications addressed to the Buyer shall be marked for the attention of Fitzroy Smith.

14.4 The parties may communicate with each other via electronic means of communication. The parties recognize the risks associated with the use of electronic communications, including but not limited to distortion, delays, interception, manipulation and viruses. The parties hereby declare that they shall not hold each other liable for any damage or loss incurred by either of them as a result of the use of electronic communications. This also applies to the use of electronic communications – irrespective of the form – between us and third parties, including but not limited to tax authorities. The parties shall do or omit all that can reasonably be expected of them to avoid such risks.

Waiver

No waiver by the party of any breach of these Terms and Conditions shall be considered as a waiver of any subsequent breach of the same or any other provision. Our rights and powers under the Engagement shall not be affected or limited by our failure to directly enforce any rights or powers. Notice of any waiver must be given in writing.

Severance

If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

Conflict or Inconsistency

If there is any conflict between the provisions of these Terms & Conditions and the written Engagement, the conditions of the written Engagement shall prevail. Deviations from these Terms & Conditions can be agreed only in writing.

No Poaching

During the execution of the Engagement and within one year of termination of the Engagement, neither party shall employ persons who are or were involved in executing the Engagement on behalf of the other party or conduct negotiations with such persons about employment, other than in consultation with the other party. If, despite the above ban, a party decides to employ one or more persons who were involved in executing the Engagement on behalf of the other party, the first party shall pay to the other party the recruitment costs that the latter incurs in recruiting one or more replacement workers in addition to other damages.

No Rights for Third Parties

A person who is not a party to the Contract shall have no right under this Terms and Conditions or other Contracts.

Governing law and Arbitration

This document is governed by and are to be construed in accordance with the laws of Georgia applicable therein.

Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Georgia (and any court of appeal) and waives any right to object to an action being brought in those courts, including on the basis of an inconvenient forum or those courts not having jurisdiction.